Salutes and Apologies Vasanta ji and Professor GN Saibaba!

The last we met and briefly held hands was outside AKG Bhavan, Delhi where he, with his usual gentle resolve had been wheeled by dear wife, Vasanta to pay tribute to Sitaram Yechury, general secretary of the CPI-M. That was September 14, 2024, Sita had left us two days before, exactly a month before Saibaba did, on September 12, 2024. On Saturday, October 12, 2024, the 54 year old professor of English died of “complications following a gall bladder surgery at one of Hyderabad’s known hospitals.”

Immediately, I had to say something publicly, react. “Who answers for this life lost, unaccountability & callousness? #GNSaibaba We owe you….” is what I said on X.

Who answers for this life lost, unaccoutability & callousness? #GNSaibaba We owe you…. pic.twitter.com/6iI7j99yan

— Teesta Setalvad (@TeestaSetalvad) October 12, 2024

Professor GN Saubaba had stubbornly refused to die despite every effort by the brute Nagpur jail authorities, on instructions of the political executive, to ensure every indignity heeped on this physically frail and handicapped man. After being accused and convicted of all kinds of manipulated charges including under the draconian anti-terror law Unlawful Activities (Prevention) Act (UAPA) and convicted to life imprisonment on March 7, 2017 he was first acquitted on October 14, 2022 by the Nagpur bench of the Bombay High Court, only for a superior court to ensure further jail term. Saibaba’s poem penned at the time was and is a source of sorrowful inspiration. On August 5, 2023, the Bombay high court judge Justice Rohit B Deo (former Advocate General, Maharashtra from 2016 to 2017) — who had acquitted Professor GN Saibaba—resigned,  a full two years a four months before he was due to retire on December 4, 2025. Though citing personal reasons to be the cause, in his statement before the court while he made farewell remarks in open court, he did say, “I can’t work against my self-respect.” After the Supreme Court’s “interventions” at this stage, the Bombay high court again acquitted Saibaba and others on March 5, 2024, observing that holding a trial under UAPA without adhering to procedural requirements would amount to a “failure to justice”. Professor Saibaba’s wife Vasanta Kumari who valiantly stood by him through all these multiple violations of the Constitution and law had, with him, a beaming smile, when he finally was wheeled out free from the Nagpur Central Jail on March 7, 2024.

Saibaba’s death after a critical surgery at the age of 54 raises questions for which there will be, likely no answers. A former professor of the Department of English, University of Delhi and a prominent figure in the struggle for democratic rights and the defence of the marginalised, Prof. Saibaba, was 90 percent disabled and wheelchair-bound. What had he been accused of, charges that he was, after a bitter ten long years, acquitted? Of being “a member of the banned Maoist party on flimsy grounds of having some Maoist literature in his house.” There was no other evidence and yet, he had been incarcerated eight and a half years ago and had been kept in conditions which utterly disregarded his physical condition and resulted in continuing deterioration of his health. Little regard was paid to his need for proper medical attention. Finally, almost too late, the Maharashtra High Court acquitted him of all charges and he was discharged recently. However, his condition could not take the stress of gall bladder surgery and he passed away due to haemorrhage and cardiac arrest. Saibaba had said on release from Nagpur jail on March 6, “When I went to prison, I had no ailment other than my disability. Now, my heart is 55% functional…live, gallbladder and pancreas have also been affected. My right hand is partially functional. My doctor says I need multiple surgeries.”

Who will pay for this state-driven negligence?

In any civilised society –and electoral democracies mandated by the sovereign will of the people certainly claim that label—there should be an independent inquiry into such a death, at the very least. So that those guilty jailors and Superintendents of Nagpur prison face rebuke, real punishment. And we as citizens with the sovereign authority are informed of who exactly in the executive ordered such treatment. Prof. Saibaba’s death has therefore also been called nothing short of an institutional murder as was Father Stan Swamy’s on July 5, 2021.  On July 5, 2021 Stan Swamy had died of cardiac arrest, complications from COVID-19, Parkinson’s, also a victim of dismal and unaccountable Taloja jail prison conditions.

The Indian state, and judiciary, which failed not only to protect his fundamental right to a dignified life, actually also subjected him to the most cruel and inhuman conditions of incarceration, denying him even the basic medical attention.

His own words best express both his life, treatment in jail and death.

Saibaba’s poem from jail in 2017

When I refused to die
my chains were loosened
I came out
Into the vast meadows
Smiling at the leaves of grass
My smile caused intolerance in them
I was shackled again
Again, when I refused to die
tired of my life
my captors released me
I walked out
into the lush green valleys under the rising sun
smiling at the tossing blades of grass
Infuriated by my undying smile
They captured me again
I still stubbornly refuse to die
The sad thing is that
They don’t know how to make me die
Because I love so much
The sounds of growing grass

November 2017. (Remembering October 1917)

G N Saibaba, life convict, Anda Cell, Nagpur Jail

What does all of this, in any real sense mean? As we pen our thoughts and tributes to this extraordinary man, whom the Delhi University refused to re-instate as professor even after his acquittal, first we must recall that though Professor G N Saibaba died a free man, acquitted of all charges, he could not savour the sounds of freedom for even a year.

Here was a man 90 % physically challenged who survived solitary confinement –three stretches at a time—for a total of eight and a half years. He was deprived of his essential mode of mobility, the wheelchair in the Nagpur’s Central Jail, a wheelchair that he had been dependant on since childhood. Medicines essential to his treatment for 19 ailments were denied him as was a simple bland diet and other medical treatment. This despite the fact that when he was arrested for the second time, in December 2015, on orders of the Gadchiroli sessions court, Professor Saibaba was due for pancreatic surgery and a delay would lead to infection, which his doctors had warned.

Confined to solitary confinement, the Anda Cell (reserved for the most dangerous persons!), itself an acknowledged form of mental torture, he was in jail in Nagpur, a city in Maharashtra with hot summers and cold, cold winters. Even when sharp pains seared his body in winter, jail authorities refused to allow him warm clothes sent by his family. In a letter to his wife, A S Vasanta Kumari, from prison in November 2017, eight months after having been convicted for life under the anti-terrorist act UAPA, he had baldly said, “I am living like an animal.” The callous unaccountability by the jail authorities continued until the very end leading to an open letter, in December 2020 by his lawyer to the jail authorities saying that ‘Saibaba’s future was in his hands.’

Among all the questions that should bother our Courts is this one, “How long is too long a period of incarceration as an under trial for a court to conclude the right of speedy trial is defeated?”  It was the Delhi High Court in Mohamed Hakim v. State (NCT of Delhi) 2021 SCC OnLine Del 4623, who had thus queried,  though that was in the context of grant of bail for an undertrial prisoner. As India today ignominiously boasts of over 4, 00,000 under trials –several thousand of which have served terms way beyond the punitive terms they are charged with, Saibaba’s death reminds us of a state’s complete collapse. Apart from Saibaba, there are other political prisoners, Delhi Riots cases 2020 (Umar Khalid we know and speak of often, Gulfishan Faitima less so), Orissa, Chhattisgarh that point a finger at us and the higher judiciary. Is it not about time that High Court and Supreme Court Judges, step out of their courts and chambers and visit the Jails in their jurisdiction? Meet and speak to under trials and convicted, interrogate and examine why some of their Orders on Bail and Release are simply not implemented on the ground.

More of such ruminations, point by point, later. This one is about Professor GN Saibaba. So I will end this guilt-filled remembrance with the poem tweeted by fellow journalist, Saubaba, today, October 15.

When you remove Saibaba’s eyes,

Please add a touch of gentleness,

For in them lie traces of the world he dreamt of,

That might unfold within someone else.

Please extract his heart with utmost skill,

For in that tenacious heart that denied death

In the fascist Manuvadi regime’s prison,

You may find the roots of tender compassion

For the Adivasis and the oppressed masses.

In constant captivity, grappling with illness,

He stood firm for his beliefs.

Please check, perhaps, those polio-stricken legs

Could leave a mark on the faces

Of the chameleon activists who preach a new ideology every day.

One more, final request…

Please preserve that brain even more carefully for the future generations,

For though ninety percent disabled,

His “thinking mind” made this exploitative system tremble with fear.

Someday, it may help someone identify the system’s weak link.

Janjerla Ramesh Babu

President, Telangana Forum Against Displacement

(With a heart burdened by sorrow for the sudden martyrdom of Comrade G.N. Saibaba…)

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The post When the state turns rogue even protests dry up, Salutes & Apologies Professor Saibaba! appeared first on SabrangIndia.

Justice Vinay Joshi and Valmiki Menezes of the Nagpur bench of the Bombay HC, overturned the 2017 Trial Court judgment, both on the basis of the merits and procedural lapses. It reiterated its earlier position on procedural safeguards and found the investigating agency violating rules for valid seizure of evidence and also suspected the possibility of tampering of evidence due to poor handling of evidence and apparent fudging of official records.

The court also came out strongly against thought policing of individuals and relying on the judgement in Jyoti Babasaheb Chorge Vs. State of Maharashtra, said that a particular ideology or political philosophy (which may be inferred from seized literature or other material) cannot be treated as a crime in itself. Along with Jyoti Chorge, it also relied on the ratio of Thwaha Fasal and Vernon vs State of Maharashtra to emphasise that mere association with a terrorist organisation (passive membership) is not sufficient to attract the relevant provisions of UAPA unless it is accompanied by intention and support to further the activities of such organisation. After refusing to consider political literature as valid evidence, the court also dismissed the video ‘evidence’.

Long walk to freedom

The Nagpur Bench of Bombay High after considering the matter afresh delivered its judgement on March 5, 2024, acquitting all the accused charged under UAPA.

The speaking order observed that, “In fact since the prosecution has failed to establish the electronic evidence in accordance with law, the said material need not be gone into as an evidence in this case.”[1] Even on the basis of merits the said ‘evidence’ were found be inadequate in the eyes of the court and the bench dismissed it to be considered as legal evidence. Analysing the ‘evidence’ of the prosecution the court noted, “Perusing these and various other literature contained in the hard disk, as claimed to have been seized from Accused No.6, the contents of these documents read and understood by any person, by themselves would not constitute an offence under Sections 13, 18, 20, 38 or 39. The documents relate to the period from the year 2006 to the year 2012, ranging for a period of 1 year to 7 years prior to registering the FIR”.

On Video Evidence (March 2024)

The court was sharply critical of the shoddy investigation of the prosecution and noted, “…these videos do not in any manner portray any acts of “terrorism” contained in the various provisions of the UAPA. In fact, there is no evidence brought forth by the prosecution to connect the persons in these videos with any actual act of terrorism…”[2] It further lambasted the State for invoking the charge of conspiracy and said, “In order to attract the offence of conspiracy, besides vague allegations that they have conspired to wage war against the Government or advocated arms struggle, there is no other material.”[3]

The court concluded that, “In our view, there is total non-compliance of various provisions of UAPA. The sanction accorded to prosecute Accused Nos.1 to 5 is invalid. Taking of cognizance by the Trial Court without valid sanction or no sanction to prosecute accused No.6 G.N. Saibaba goes to the root of the case, which renders the entire proceedings null and void… We hold that the trial held despite violation of mandatory provisions of law itself amounts to failure of justice”[4].

The Maharashtra government has already challenged this decision in the Supreme Court even though the High Court has refused to stay its order, noting that the matter affects personal liberty of the citizens.

This order of the Bombay High Court may be read here:

Criminal Appeal Nos. 136 & 137 of 2017.

The tragic take of Professor GN Saibaba and others: a background

The former Delhi University professor GN Saibaba was first arrested on May 9, 2014 by the Maharashtra police on charges of entering into a criminal conspiracy with senior Naxal commanders Narmadakka and Ramdhar, and was charged with various draconian sections of the Unlawful Activities (Prevention) Act (UAPA) dealing with conspiracy, and membership of ‘a terrorist gang or organisation’. Hem Mishra, the then student of Jawaharlal Nehru University (JNU), was arrested by the police in 2013 in the case of Naxalite involvement and had named Saibaba as an “urban contact” for the banned Maoists.

Convicted by the Sessions Court in Gadchiroli District in this case of Maoist involvement in 2017, Saibaba and others had been sentenced to life imprisonment. Only one of the accused received a lesser sentence. Other accused in the case are Pandu Pora Narote, who died in August 2022, Mahesh Tirki, Hem Keshwdatta Mishra, Prashant Rahi and Vinay Nan Tirki, Live Law reported[5]. Saibaba has been accused by the prosecution of working with Revolutionary Democratic Front (RDF), believed to be a frontal organisation for the banned Communist Party of India (Marxist).

The decade long battle for justice for Saibaba was marked with particular apathy even brutality by the Nagpur jail authorities given the fact that Saibaba is 90% disabled and suffers from several comorbidities. His incarceration was thus marked by consistent failure by jail authorities to provide him adequate health support. Sabrang India had reported repeatedly in 2020, 2021 and 2022 how his exasperated lawyer, Akash Sorde had publicly told the Nagpur jail superintendent that “the staff even refused to accept warm caps, a handkerchief, towel, napkin, T-shirt, a medical hand weight that Saibaba needs for physiotherapy and shampoo. ‘Given the bone chilling cold that whole of Nagpur is facing at the moment, I fail to understand how else do you expect my client to save himself from cold,’”. Reportedly, he is suffering from 19 medical ailments.

The incarceration had caused international outrage with the UN Human Rights Office of the High Commission had issued the statement concerning the inhumane detention of Saibaba, the statement read, “‘Mr. Saibaba has been detained in a high security ‘anda barracks’ in conditions incompatible with his status as a wheelchair user. His 8×10 feet cell has no window and one wall made of iron bars, exposing him to extreme weather, especially in the scorching summer heat,’”.[6] In the meantime, he was also removed from his post of assistant professor from Delhi University’s Ram Lal Anand College in 2021.

The labyrinth of trial: How the process became the punishment

GN Saibaba along with other accused were first convicted in March 2017 by the Sessions Court at Gadchiroli District under Section 13, 18, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) and Section 120-B (criminal conspiracy) of the Indian Penal Code (IPC). The Session Court judge Suryakant Shinde wrote in his order that “It is proved that accused No.1 Mahesh Tirki, no.2 Pandu Narote and no.4 Prashant Rahi in pursuance to the  criminal conspiracy with accused no.3 Hem Mishra and no.6 Saibaba were found in  possession of naxal literatures, pamphlets, letters, correspondence, audio­video, electronic material which were to be used for inciting the people to create violence to cause public disorder and accused no.1 Mahesh Tirki, no.2 Pandu Narote and no.5 Vijay Tirki were receiving the members of banned terrorist organization CPI (Maoist) and its frontal organization RDF and were taking them safely and secretly to forest area within the Gadchiroli district to meet absconding underground naxals”[7]. All the accused except Vijay Tirke received life imprisonment sentences, Tirke received rigorous imprisonment of 10 years.

In March 2016, when the trial was still ongoing at Gadchiroli Sessions Court, the Supreme Court granted bail to Saibaba on medical grounds and reprimanded the Maharashtra government for opposing his bail plea after his bail application was rejected by the Bombay HC and said that the State has been extremely unfair to the accused to oppose his bail, especially given his medical condition[8]. Due to his deteriorating health conditions, the Bombay High Court had earlier granted him interim bail from June 2015 to December 2015 to receive medical treatment.

These orders may be read here.

Despite these orders by the High Court of Bombay, Saibaba had to consistently suffer due to lack of proper care being provided by the Nagpur Central Jail authority and it became a battle in itself to secure bail when charged under stringent UAPA law. The SC bench led by Justice J S Khehar while hearing Saibaba’s bail plea in February 2016 had directed the Maharashtra government to provide adequate amenities to Saibaba, it ordered the State, “We want you (state) to make him comfortable. Tell us how you will make him comfortable. You cannot have him in solitary confinement,” Indian Express reported.

These Orders may be read here:

Special Leave to Appeal (Crl.) No(s). 249/2016, Item No.44

Responding to Saibaba’s conviction in 2017 under the UAPA case, his lawyer Rebecca John had noted that UAPA turns mere thought into crime, the trial court had held that he was a Maoist, and accused him of idolising the Naxalbari uprising of 1967 and promoting and propagating communist ideology, Scroll reported. John was quoted as saying, “it seemed that the state was ‘trying to enter the mind of a person, into what his ideology is’”. Previously, his bail pleas were rejected by the Bombay HC in 2015, 2016, 2019, and 2020 on the ground that offences were serious in nature, even while he was suffering from various medical conditions.

Small victory with the progressive Bombay HC verdict

For his immediate family and the larger community of advocates and human rights defenders, a sigh of release came on October 14, 2022 when the Nagpur Bench of Bombay High Court acquitted all the accused, including GN Saibaba of the charges under UAPA and set aside the Trail Court judgement for violating due process of law.

The order delivered by Justice Rohit Deo and Anil Pansare pointed out that, “In view of the findings recorded by us, we hold that the proceedings in Sessions Trials 30/2014 and 130/2015 are null and void in the absence of valid sanction under Section 45(1) of the UAPA, and the common judgment impugned is liable to be set aside, which we do order”. Section 45 (1) of UAPA requires prior sanction from the Central or State Government or the officer nominated by the concerned government to begin proceeding under UAPA. In the present case the prosecution had already arrested Saibaba under UAPA and the Trial Court had begun framing the charges of UAPA even before the sanction was granted on April 6, 2015. This not only violates the provision of UAPA, but also go against the rule of law and due process, both part of Article 14 of the Indian Constitution.

The High Court pointed out that in the present case, issue related to both absence of sanction and absence of valid sanction. It directed the attention of the State to show that under UAPA, after the amendment in 2008, it was necessary that an independent authority reviews the evidence against the accused in an independent manner before recommending the sanction. The report prepared by this independent authority should be substantial enough to guide the prosecution to take the further call. This is the second count on which the sanction was found to be invalid, as the perusal of the report prepared by independent authority revealed that the report in no way aided the prosecution in determining whether the charges under UAPA were justified or not. The bench said that the report lacked application of mind and recorded that “sanction is not a ritualistic formality nor is an acrimonious exercise. Sanction is a solemn and sacrosanct act which lifts the bar and empowers the Court to take cognizance of offence. Sanction serves the salutary object of providing safeguard to the accused from unwarranted prosecution and the agony and trauma of trial, and in the context of the stringent provisions of the UAPA, is an integral facet of due process of law”.

The Bombay High court in this order had emphasised the importance of procedure safeguards, especially in the context of UAPA, and said, “…While the war against terror must be waged by the State with unwavering resolve, and every legitimate weapon in the armoury must be deployed in the fight against terror, a civil democratic society can ill afford sacrificing the procedural safeguards legislatively provided, and which is an integral facet of the due process of law, at the alter of perceived peril to national security. The siren song that the end justifies the means, and that the procedural safeguards are subservient to the overwhelming need to ensure that the accused is prosecuted and punished, must be muzzled by the voice of Rule of Law”. The court dismissed the argument of the State that the infirmity in obtaining the sanction was curable, but remarked that “the rule against double jeopardy has no application if the trial is held vitiated due to invalidity or absence of sanction”. The Bombay High Court was careful enough to note that the order passed by this court is purely on basis of the procedural consideration and has no bearing on the merit of the case.

This detailed order of the Nagpur bench of the Bombay High Court may be read here:

Criminal Appeal No. 136 of 2017,

The victory that did not last

The Maharashtra government immediately challenged the Bombay High Court order acquitting the accused the very same day, and in a peculiarly hurried manner approached and succeeded with an urgent hearing in the apex court on the same day. Appearing for the state government, Tushar Mehta, Solicitor General asked the Supreme Court to stay the acquittal order of the High Court.

Though the Supreme Court did not issue a stay order the same day, it nonetheless urgently listed the matter next day (Saturday) on October 15, 2022 before the bench of Justice M R Shah and Bela Trivedi.

The move raised the eyebrows, as Saturdays are non-working days for the Supreme Court, and the urgency shown was clearly to obstruct the liberty of citizens. Solicitor General Tushar Mehta, appearing for the government of Maharashtra, argued that mere procedural lapse or irregularity in obtaining sanction cannot be the ground for granting bail if the accused were already convicted by the Trail Court based on merit and detailed analysis of the evidence on record. He referred to Section 465 of the Code of Criminal Procedure (CrPC) to argue that the High Court could not have reversed or altered a sentence based on any error or irregularity in the sanction obtained to prosecute an accused unless it had considered whether the accused raised an objection regarding this irregularity during the original proceedings, SCC reported.

The Supreme Court, commenting on what it considered were the infirmities in the impugned order and thereafter observed that the Bombay High Court had not gone into the merits of the case, and acquitted the accused merely on the procedural grounds even though the accused (Saibaba) had argued the case on the basis of merits as well. The SC concurred with Mr. Mehta and said that further consideration is needed in this regard considering the provision of Section 465 of CrPC. Secondly, the SC order also suggested that since the Trial Court has already tried the case on the basis of merit and detailed analysis of the evidence (even if it has violated the procedural rules), it is safer to rely its judgement, at least in the interim, given the serious nature of the offences against “the sovereignty and integrity of the country”.

Thereafter, the SC quite unceremoniously suspended the Bombay High Court judgment acquitting the accused, while completely ignoring the violation of procedural safeguards and due process of law. Additionally, the bail plea for Saibaba was rejected alongside.

The SC finally set aside the High Court ruling on April 19, 2023, and asked it to reconsider the matter afresh, without commenting on the merits of the case. This judgement indeed proves that the maxim of “bail and not jail” remains completely upended for people charged under stringent anti-terror laws like UAPA.

This controversial order of the Supreme Court may be read here:

Criminal Appeal Nos. 1184-1185 of 2023,

Acquitted for the second time on March 5, Professor GN Saibaba was released from the Nagpur Central Jail on March 7, by 12 noon.

[1] Prateek Goyal, “Disabled, Unwell but an Enemy of the State”, The Wire, 23 May, 2015. https://thewire.in/politics/disabled-unwell-but-an-enemy-of-the-state

[2] Amisha Shrivastava, “Bombay High Court Acquits GN Saibaba & 5 Others In Alleged Maoist Links Case”, Live Law, 5 March, 2024. https://www.livelaw.in/high-court/bombay-high-court/bombay-high-court-acquits-gn-saibaba-5-others-in-alleged-maoist-links-case-orders-immediate-release-251271?infinitescroll=1

[3] “GN Saibaba’s lawyer claims Nagpur jail officials refused essentials he brought for him”, Scroll, 25 December, 2020. https://scroll.in/latest/982339/gn-saibabas-lawyer-claims-nagpur-jail-officials-refused-essentials-he-brought-for-him

[4] Sonam Saigal, “Five years on, no relief for jailed Delhi University professor Saibaba”, The Hindu, 9 May, 2019. https://www.thehindu.com/news/national/five-years-on-no-relief-for-jailed-delhi-university-professor-saibaba/article27084472.ece

[5] “India must end inhumane detention of human rights defender GN Saibaba: UN expert”, OHCHR, 21 August 2023. https://www.ohchr.org/en/press-releases/2023/08/india-must-end-inhumane-detention-human-rights-defender-gn-saibaba-un-expert

[6] “GN Saibaba removed as assistant professor from Delhi University’s Ram Lal Anand College”, Scroll, 2 April 2021. https://scroll.in/latest/991267/gn-saibaba-removed-as-assistant-professor-from-delhi-universitys-ram-lal-anand-college

[7] S.C.No.13/2014 & 130/2015, https://gadchiroli.dcourts.gov.in/wp-admin/admin-ajax.php?es_ajax_request=1&action=get_order_pdf&input_strings=eyJjaW5vIjoiTUhHQTAxMDAwMTYzMjAxNCIsIm9yZGVyX25vIjoxMCwib3JkZXJfZGF0ZSI6IjIwMTctMDMtMDcifQ=

[8] Special Leave to Appeal (Crl.) No(s). 249/2016, Item No.44, https://main.sci.gov.in/jonew/courtnic/rop/2016/904/rop_570065.pdf

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The post GN Saibaba wheeled out of Nagpur Central Jail on March 7 two days after the Bombay HC resoundingly acquitted him & 5 others in Maoist links case appeared first on SabrangIndia.

India’s premier human rights network, National Alliance of People’s Movements (NAPM), has said, it “stands in solidarity with students from Delhi University (DU) who have been “bravely resisting Akhil Bharatiya Vidya Parishad’s (ABVP’s) repeated attempts at turning educational campuses in the country into hostile and polarised spaces fuelled by the language of religious intolerance and Brahminical patriarchy.”

In a statement, referring to the 1st December incident, in which DU students campaigning for the release of Dr GN Saibaba, former DU professor and 90% physically challenged, languishing in jail for alleged Maoist links, were beaten up by ABVP members using lathis and bricks, NAPM said, “In response to this dastardly act, students organised a protest meet against such hooliganism the following day, which is when ABVP goons attacked students again.”

“More recently”, it added, “A group of students had organised a sit-in on the 8th of December to appeal for peace and for the right to democratic dissent where they were struck by ABVP members without provocation.”

Regretting that “Delhi Police’s response to the ABVP violence is appalling”, NAPM said, “Following its established patterns, instead of taking action against the actual culprits, the Police assaulted and detained the students peacefully opposing these attacks, thereby continuing its streak of enabling ABVP miscreants who instigate such acts in university campuses.”

Asserting that this is the latest of instances “where the ABVP, the RSS-BJP’s student wing, has created violent disturbances in an educational institution”, NAPM noted, “Over the last 7 years, wherever students and teachers have tried to organise meetings and conventions on themes reflecting the spirit of the Indian Constitution, such attacks have become expected and have only increased in frequency over time.”

Believes NAPM, “ABVP has had a long history of opposing the culture of debate, democracy and peaceful dissent which colleges and universities are supposed to foster, and has instead created an environment of needless violence and fear. By refusing to lodge FIRs against the accused, the police force keeps putting common students in danger and fails to fulfil its responsibility in keeping everyone safe.”

“Knowing that they will get away with intimidation and assault each time has emboldened ABVP into scaling up the extent of their attacks with complete impunity”, NAPM said, demanding, that the authorities must “uphold the Constitutional rights to education, dissent and remediation, and take strict action against the recurrent crimes of the saffron brigade.”

“We hope that relevant authorities return campuses to the students, who want to learn, and put a stop to this culture of volatility and violence, perpetuated by systemic efforts to curb all diversity of thoughts and practice”, it insisted.

Courtesy: https://www.counterview.net

The post Protesting for release of GN Saibaba, Delhi students ‘assaulted’ by ABVP, cops appeared first on SabrangIndia.

On October 15, the apex court had suspended the Bombay High Court’s order discharging Saibaba and five others, in a sudden Saturday urgent hearing. Other accused in the matter Mahesh Tirki, Pandu Pora Narote (deceased during appeal), Hem Keshwdatta Mishra, Prashant Rahi, and Vijay Nan Tirki. State of Maharashtra v. Mahesh Kariman Tirki And Ors. Diary No. 33164/2022

SG Tushar Mehta, appearing before a division bench of Justices MR Shah and Hima Kohli, assured the court that all the evidence, comprising 10 volumes would be submitted along with convenience compliance within a week. “We cannot go through entire convenience compliance….”, the Court remarked, noting the number of volumes. “This is just to show that we are not being selective”, the SG said.

Senior Advocate R Basant appearing for Saibaba (Respondent 6) said that service is not complete and he would file a counter soon.

Senior Advocate Nita Ramakrishnan, appearing for Respondents 1 (Tirki), 4 (Narayan), and 5 (Nan Tirki) said that she does not wish to file any counter affidavit.

Accordingly, the Bench directed the parties to file their counter affidavits within 10 days.

Before the bench moved on with other matters, SG Mehta tried to convince the Court to move the coming-up hearing to a later date. “Yesterday also you did not appear in some important matters”, Justice Shah commented. “We were taking care of animal rights in the Jallikattu matter”, the SG replied.

At the hearing on October 15, the Supreme Court suspended the High Court’s order on the grounds that the accused were discharged only on the ground of irregularities in granting sanction for prosecution under the UAPA, without entering into the merits of the matter. The bench had then observed that it requires detailed consideration of whether an appellate court can discharge the accused on the ground of sanction after they have been convicted by the trial court based on the basis of evidence on record.

Factual Background of the Case

Professor GN Saibaba, bound by a wheelchair due to post-polio paralysis, had previously filed an application seeking suspension of sentence on medical grounds, which was rejected by the High Court. He has stated that he is suffering from multiple ailments, including kidney and spinal cord problems.

In 2019, the High Court had previously rejected his application to suspend the sentence. The order of conviction and sentence was passed by the Sessions Court at Gadchiroli, Maharashtra, in March 2017, for offenses under Sections 13, 18, 20, 38, and 39 of the UAPA and 120 B of the Indian Penal Code for alleged association with Revolutionary Democratic Front (RDF), which was alleged to be an affiliate of outlawed Maoist organization. The accused were arrested in 2014.

Related:

Unprecedented, Abnormal, SC order of ‘suspension’ of sentence in GN Saibaba case

Supreme Court suspends Bombay High Court order acquitting GN Saibaba and five others in Maoist links case, all to remain in jail

Bombay HC acquits Professor GN Saibaba & five others in Maolist link case, says ‘national security’ not above due process

Defence Committee for GN Saibaba Urges SC to Reconsider Case, Wife Says ‘Will Wait for Justice’

The post Prof GN Saibaba Case: Supreme Court to hear Maharashtra Govt’s appeal against HC’s discharge order on Jan 17 appeared first on SabrangIndia.

UPDATE:

Meanwhile, faculty and students told Sabrangindia that, on Friday, December 2, a protest has been organised by students against the hoolaginism of the ABVP at the Delhi University (DU). Section 144 has been imposed by the Delhi police prohibiting gatherings.

Also, anti-Brahmin and Baniya casteist grafitti appeared on the walls of the Jawaharlal Nehru University (JNU). ABVP has alleged that AISA and the left are responsible for this, as they are “anti-national and anti-Hindu”. The Left has pointed out that it is the ABVP that is at the source of the violence (attacks on meetings, disappearance of Najeeb Ahmed after a ABVP attack, beating up students on the campus and in hostels) but to date –due to the impunity enjoyed by the outfit –no action has been taken even when they are identified on CCTV camera.

[[Najeeb Ahmed, a first year MSc Biotechnology student in the JNU went missing on October 15, 2016 after the alleged attacks on him by members of the Akhil Bharatiya Vidhyarthi Parishad (ABVP), the student wing of the ruling party. This had sparked students’ movements across the country. His mother Fatima Nafees has been tirelessly following up his case. On multiple occasions she has faced extreme police brutality despite peacefully demanding for her son to be found.]]

All these developments have seriously vitiated the atmosphere on campus. JNUTA (JNU Teachers Association) has stated that there is no security on campus and that the JNU administration has failed completely. Both sides, meanwhile have demanded a speedy “free and fair enquiry” into these recent attacks.

ABVP goons attacked students campaigning on campus for a meeting demanding the release of Prof. G.N. Saibaba. Armed with rods and hurling bricks that injured several students who have been taken to Hindu Rao Hospital for treatment. ABVP students even surrounded the hospital where students were taken for treatment. Police reached after desperate calls and finally “removed” ABVP aggressors from the hospital.  The SHO of Maurice Nagar police station was also present at the hospital but it is yet unclear whether an FIR has been filed and against whom in the Akhil Bharatiya Vidyarthi Parishad (ABVP) affiliated to the Rashtriya Swayamsevak Sangh (RSS).

December 1: The incident took place during a protest organized by Bhagat Singh Chhatra Ekta Manch (BSCEM). According to reports, students from the Campaign against State Repression (CASR) were campaigning on the DU campus when they were allegedly attacked with stones first, then with lathis (batons).

Teachers and professors associated with the All India Forum for the Right to Education (AIFRTE) shared photos of the students attacked with Sabrangindia

Delhi University students campaigning for the release of jailed former Delhi University professor Dr GN Saibaba were beaten up by members of the Akhila Bharatiya Vidyarthi Parishad (ABVP), student wing of Hindu militant group RSS on Thursday.https://t.co/CO2e20CJoB

— Maktoob (@MaktoobMedia) December 1, 2022

Ravinder Singh, a final-year law student and the incumbent president of Bhagat Singh Chatra Ekta Manch, told the media (ABP News and Quint ) that around 10 to 12 students were holding a campaign to spread awareness about GN Saibaba’s unjust incarceration. Out of the blue, 40–50 ABVP students attacked them with lathis. Many students were injured, he added. Protestor Rajveer said his friend was hit with a brick, while another was pinned down and beaten up.

According to media reports the injured students were immediately rushed to the Hindu Rao Hospital. The students who were seeking treatment at the hospital allege that 40 to 50 people also surrounded the hospital and threatened them.

Ehtmam, a law graduate from Jamia Millia Islamia who was a part of the campaign, claimed that ABVP said that if they step out of the hospital, they will attack them again. This threat was given in front of police officials, he added.

Ravinder said that while some of the alleged attackers had the Aam Aadmi Party’s flag tied to their knees, he was certain that they all were from the ABVP.

Background:

On January 5, 2020, at the height of the anti CAA 2019 protests in the capital a masked mob armed with sticks and bricks went on a rampage at the Jawaharlal Nehru University (JNU), beating up students and vandalising university property. Many of them were identified as directly associated with the ABVP; to date they have not been arrested.

Related:

ABVP: In the footsteps of Pakistan’s Islami Jamiat-e-Talaba; ominously so

The post ABVP goons allegedly attack protesting students: Delhi University (DU) appeared first on SabrangIndia.

On October 21, 2022, senior advocate Kapil Sibal criticized the current climate of fear prevailing in the country while speaking at a private event organised by lawyers to felicitate him for completing 50 years at the bar. Senior advocate Sibal bemoaned the way that particular judges are assigned cases that have an impact on the ruling administration, which results in favorable rulings for the government.

To support his claim, Advocate Sibal used the recent case of GN Saibaba as an example. “I have never heard of an acquittal being suspended on a special Saturday hearing; sentences (after conviction) are only suspended in the rarest of circumstances. It is unsettling that the institution must worry for itself,” he stated, as reported by the Bar&Bench.

On October 15, Saturday, a Supreme Court bench comprising of Justices MR Shah and Bela M. Trivedi suspended a decision by the Bombay High Court that acquitted GN Saibaba in a case involving alleged Maoist ties.

According to Sibal, the problem lies with the Chief Justice of India’s (CJI) master roster of case-allocation authority. “The issue is with master of roster. Most cases dealing with government go to a particular judge. That is not automatically assigned. So why is that happening,” he said, as reported by Bar & Bench.

He pointedly urged lawyers to organise a movement to oppose executive overreach and urged them not to be intimidated. “I will be a part of this mobilisation. If you go to conquer Mount Everest you fear but still you go. It is the love of our country which will rid us of this fear. Ultimately toh sirf jail hi jana padega (At the most, you will have to go to jail),” Sibal said, as reported by Bar&Bench.

He condemned the institutional breakdown that had allowed the administration to operate unfettered. “Prior to 2014, the situation was not that bad. But after 2014 no institution is willing to stand up. Look at the University system and position of vice chancellor.. see what is happening in the judiciary, police force, Election Commission; media is the worst,” he said, as reported by Bar&Bench.

In response to a query on legislation such as the Unlawful Activities Prevention Act (UAPA), the Prevention of Money Laundering Act (PMLA), and the Prevention of Terrorism Act (POTA), Sibal remarked that it is not the law itself that is important, but rather how the executive branch uses it. “Even under ordinary laws the machinery is probing with a polluting mind. The law does not matter, it is the agency which is dealing with the law and implementing the same. It is not just the stringency of the law,” he opined.

In this sense, he emphasised how the executive was enabled by the judiciary’s silence. “If you misuse the law and the judiciary is silent, then what do you to. Silence of the judiciary is the most vocal part of the Indian system. What to do,” he asked, as reported by Bar&Bench.

He also had a negative opinion of the Bar’s inactivity. “Lawyers are silent and they see the profession as a money making venture. Lawyers must stand up without fear,” he stated. He urged lawyers to bring about social mobilisation so as to secure justice. “I want to personally do something and tell the lawyers of the country that they have a role to play in social mobilisation of this country. We need a platform for insaaf and justice. Insaaf requires sacrifice and you cannot be sitting in an office,” he stated, as reported by Bar & Bench.

According to advocate Aparna Bhat, there is fear among advocates, and even if they want to speak out, there is a support gap and a lack of it. She inquired as to “how to bring them together.” To this, Kapil Sibal replied, “If you go to conquer Mount Everest you fear but still you go. It is the love for our country which will rid us of this fear. Ultimately toh sirf jail hi jana padega (At the most, you will have to go to jail).”

The audience then questioned, “Lekin agar UAPA lag gaya?”

“Fir thode din aur jail bus. Aur kya (then some extra days in jail). I will start a lawyers movement in Delhi. It will happen and it has to start somewhere,” he stated, as reported by Bar & Bench.

Through his speech, Senior Advocate Kapil Sibal has brought in focus the injustices perpetrated by executive overreach and the judiciary’s compliance. The recent judgments against GN Saibaba, Umar Khalid, and Jyoti Jagtap depict the arbitrary sense displayed in rulings by the judiciary. While the Supreme Court has been dealing with petitions filed against instances of hate speech, their continual ambivalence on the misuse of UAPA has cost grave loss of personal liberty of some of India’s finest activists and thinkers.  

While gang rape convicts in the Bilkis Bano case were recently granted bail due to their “good behavior”, a differently abled professor, suffering from ailments,  GN Saibaba, has been kept in an Anda cell (solitary confinement), with constant surveillance. Where has the sense of justice gone? How has it gotten limited to the majority section of our country? When agents of the law, lawyers and judges, themselves living in a state of fear of incarceration, who will carry the baton of justice for those wrongly incarcerated. Advocate Kapil Sibal has, questioned the flaws in judicial delivery.

Related:

Supreme Court suspends Bombay High Court order acquitting GN Saibaba and five others in Maoist links case, all to remain in jail
Bombay HC acquits Professor GN Saibaba & five others in Maolist link case, says ‘national security’ not above due process
Defence Committee for GN Saibaba Urges SC to Reconsider Case, Wife Says ‘Will Wait for Justice’
We are living in constant fear of State: Kapil Sibal

The post Lawyers must break the silence of complicity, question flaws of executive overreach: Kapil Sibal appeared first on SabrangIndia.

Retired Supreme Court judge, Justice Madan B. Lokur, has described as “unprecedented” and “abnormal” the apex court’s recent order suspending Bombay High Court’s discharge of the paraplegic academic G.N. Saibaba in a Maoist links case.

Justice Lokur has also asserted that according to his knowledge, the apex court’s October 16 order has no judicial precedent.

In recent times, matters of custody have undergone a massive transformation. Those who should not be in custody are denied release and some even die in jail. Those who should remain in custody are released on the flimsiest of reasons and sometimes without any reason,” he has written in an article published in The Wire news portal.

The Nagpur Bench of Bombay High Court had on October 14 “discharged” Saibaba and four others.

The high court took the decision on the ground that the sanction to prosecute the former professor under the anti-terror law UAPA was “bad in law and invalid”, and this had rendered the entire trial null and void. In the reasoned HC order,  division bench has laid down the grounds of the acquittal.

However, the apex court ruled the very next day that the charges against Saibaba and the others were “very serious”, and the convictions could therefore not be set aside on a mere technicality. This is after a previous “urgent” hearing on the evening of the high court order, October 15, when another bench of the Supreme Court had expressed the view that not only was there no call for the kind of urgency displayed by the Maharashtra government, but how could a reasoned acquittal that too by the High Court be suspended just like that ? Tushar Mehta, Solicitor General appeared for the Maharashtra government in the matter.

“Issues of personal liberty are not technicalities” but a matter of fundamental right, Justice Lokur has written.

Justice Lokur writes: “There are several reasons for these thoughts, one of them being that the suspension order in a case of discharge by the SC is unprecedented and, to the best of my knowledge, not supported by any previous order of the top court. Is this the beginning of another new abnormal?”

The former judge says it’s a matter of the fundamental principles of jurisprudence that special criminal laws like Tada, Pota, Mcoca and the UAPA mandate prior sanction from the competent authority before proceedings start against an accused.

Yet, he says, the trial court proceeded with the trial (without a valid sanction against Saibaba), and convicted and sentenced Saibaba and others to life imprisonment.

Justice Lokur writes that the conviction was rightly set aside and the accused discharged as the entire trial had become “null and void”.

He notes that Saibaba was arrested on May 9, 2014, after about eight months of the investigating agency conducting searches at his home. The competent authority had on February 15, 2014, granted sanction for prosecution against five accused. Saibaba was not one of them — he had not even been arrested at the time.

“This is important because it suggests that either there was no case against him or the evidence against him was thin. The next day, on February 16, a final report on the investigations against six persons was filed by the police before a magistrate. Saibaba was one of them, even though sanction for his prosecution had not been granted. The final report made allegations against the accused of having committed terrorist offences under the Unlawful Activities (Prevention) Act (UAPA),” Justice Lokur writes.

He also notes that on April 6, 2015, an order was passed by the competent authority according sanction to prosecute Saibaba under the UAPA. But before the sanction order, charges had been framed against Saibaba and he had pleaded not guilty.

“The question is: Can a sessions judge take cognisance of an offence, frame charges against an accused person, record his plea and examine a witness without a sanction order permitting prosecution of an accused? You don’t need a law degree or too much imagination to answer that question,” Justice Lokur writes.

He then refers to Section 20A(2) of the Terrorist and Disruptive Activities Act (Tada) which says: “No court shall take cognisance of any offence under this Act without the previous sanction of the inspector-general of police, or as the case may be, the commissioner of police.”

Justice Lokur writes: “Plain and simple English. This does not need any paraphrasing and can be understood by anybody.”

He also refers to Section 50 of the Prevention of Terrorism Act (Pota); Section 23(2) of the Maharashtra Control of Organised Crime Act (Mcoca) and Section 45 of the UAPA, which mandates prior sanction from the government before cognisance is taken against the accused by the trial court.

 “In other words, in the case of Saibaba, the court could not have taken cognisance of the offence alleged, charges could not have been framed against him, his plea of not guilty could not have been recorded and the testimony of PW-1 (prosecution witness) could not have been recorded. Quite clearly, the entire proceedings against Saibaba are null and void without the previous sanction to prosecute him,” Justice Lokur writes.

He says: “A case of discharge places an accused person on a stronger footing than an acquittal. But that is only temporary — since a fresh trial can take place in the case of discharge, but a fresh trial cannot take place in the case of an acquittal.”

Justice Lokur has also referred to the way the Maharashtra government’s appeal against the high court verdict was listed before the Supreme Court for hearing the very next day.

The former judge underscored that the state government’s appeal was filed and mentioned at about 4pm on October 14 before a bench of two judges headed by Justice D.Y. Chandrachud. The bench indicated that the matter would be taken up for consideration on October 17.

“An article or two suggest that the petition was then taken up for consideration before the registry and disregarding what was said by the bench, the registry listed the case for consideration on Saturday (October 15)…,” Justice Lokur writes.

“Even though Saibaba was convicted of terrorist offences by the sessions judge, Bombay High Court found the trial to be null and void. As such, he is today not guilty of any offence…. Why then should he continue in jail, even without taking all the health conditions into consideration? Due to his disabilities, he obviously cannot be a flight risk, he cannot influence witnesses because the ‘trial’ is over and there are no more witnesses to be influenced by him or by anybody else,” he adds.

“Why then should he continue to remain in jail? …Issues of personal liberty are not technicalities. Personal liberty is a substantive fundamental right guaranteed by Article 21 of the constitution. Thank God for that.”
 

Related:

Supreme Court suspends Bombay High Court order acquitting GN Saibaba and five others in Maoist links case, all to remain in jail

Bombay HC acquits Professor GN Saibaba & five others in Maolist link case, says ‘national security’ not above due process

Defence Committee for GN Saibaba Urges SC to Reconsider Case, Wife Says ‘Will Wait for Justice’

The post Unprecedented, Abnormal, SC order of ‘suspension’ of sentence in GN Saibaba case appeared first on SabrangIndia.

The People’s Union for Civil Liberties (PUCL) has expressed its serious concern over the hurried manner by which the Supreme Court (SC) permitted the government of Maharashtra to move an urgent appeal on Saturday October 15, 2022 against the acquittal/discharge of Prof. Saibaba and 5 others by the Nagpur Bench of the Bombay High Court(HC) on October 14, 2022. The oldest civil liberties organisation, formed during the infamous emergency of the late 1970 said in its statement that, “It’s troubling that a well- reasoned judgment of the Bombay HC, acquitting Prof. Saibaba and others which pointed out to serious shortcomings in the prosecution case relating to mandatory procedural safeguards was thus suspended.

The statement goes on to say that “What is extraordinary about the Chief Justice of India (CJI)UU Lalit’s decision to permit hearing of the Maharashtra Government’s appeal against the acquittal, is that the state government represented by Solicitor General Tushar Mehta, had orally mentioned the matter to the 2nd Bench headed by Justice DY Chandrachud and sought stay of the acquittal by the Bombay HC. Justice Chandrachud is reported by Live Law to have remarked in open court that the appeal can be listed only on Monday, thereby in effect, refusing to list the matter on Saturday. Justice Chandrachud is also reported to have noted that “He has got an acquittal in his favour. Even if we take it up on Monday, and assuming we issue notice, we cannot stay the order”. It is thereafter that the Chief Justice, on the administrative side, chose to permit a hearing before a specially constituted Bench of Justices M.R. Shah and Bela Trivedi, on a non-working day, Saturday, October 15, 2022.”

Two issues of grave importance arise from the decision to permit the State’s appeal to be heard before a Special Bench on a non-working day lists the PUCL statement:

(i) Previously, extraordinary sittings beyond regular working hours/ days of the court were permitted only in exceptional circumstances when issues of imminent threat to personal liberty or a situation threatening grave constitutional crisis required urgent intervention of the court. Midnight hearings were permitted to stop the imminent hanging of prisoners in Yakub Menon’s case or Nirbhaya killers or threat to personal liberty as forexample in Arnab Goswami or Vinod Dua cases or in the context of status of Legislative Assemblies in cases arising from Maharashtra and Karnataka. It is highly debatable as to whether the present case of Prof Saibaba and his co-convicts, who were legally and properly acquitted by the Bombay High Court, constitutes ‘a grave and extraordinary situation’ warranting special hearing on a holiday’.

(ii) What is also worrying is that the Supreme Court stayed an order of acquittal passed by a competent court in a criminal appeal. It is not as though the state has no remedies to challenge acquittals through `due process of law’. However, when the State, by invoking an extraordinary procedure ensures a stay of a judicial order of acquittal, it seriously threatens the very basis of `Rule of Law’. It raises the question as to whether a person convicted under the UAPA will ever benefit from an appellate court acquitting him or her. This has implications for the very fundamentals of criminal and constitutional jurisprudence in India. The fact that this order is a precedent of the highest court of the land, will embolden states to press for stay of acquittal orders, thereby threatening the right to personal liberty.

Finally, says the statement, “This extraordinary alacrity shown by the Supreme Court in disregarding established conventions, is not disregard of procedure to serve justice better; rather it is a disregard of procedure to suspend a jurisprudentially rigorous judgment of the Bombay High Court which has kept faith with the Constitution.

“The substantive contribution of the Bombay High Court in Prof. Saibaba’s appeal was to insist that with respect to statutes such as the UAPA, which deviate significantly from established procedural safeguards, the State (prosecution) is under an obligation to comply strictly with existing procedural safeguards.

“The reason why procedural safeguards should be mandatory is because of the history of the misuse of anti-terror laws. The Bombay High Court, in its judgement, referenced TADA and POTA”, (which pre-dated UAPA), stating that they were “perceived as legislation bordering on the draconian” and that “cutting across political and ideological lines, the provisions of the aforesaid statutes faced severe criticism as susceptible to egregious misuse and weapon of stifling the voice of dissent.

“The procedural safeguards the Bombay High Court references in the UAPA are in Section 45 of the Act. The Bombay High Court held that the procedural safeguard of sanction by the Central or State Government must be strictly complied with before the Court takes cognizance. Under Section 45 (2) sanction for prosecution can be given by the Central/ State Government only after ‘considering the report of such authorityappointed by the Central/ State Government. The purpose of Section 45(2) is to ensure an ‘independent review of the evidence gathered during the investigation’ and on that basis to ‘make a recommendation’ to the Central Government within the prescribed time limit.”

“While the Bombay High Court wrongly holds that the submission of the report within the prescribed time limit of seven working days is not ‘mandatory’, it rightly recognizes that, ‘Sanction serves the salutary object of providing safeguard to the accused from unwarranted prosecution and the agony and trauma of trial, and in the context of the stringent provisions of the UAPA, is an integral facet of due process of law.’

“It goes on to hold that sanction must be based upon an independent review of evidence as mandated by Section 45(2) and this is a mandatory requirement. It draws support for its conclusion from the statement of Mr Chidambaram, the then Home Minister who when piloting the Bill in Parliament (in 2008-09), stated that, ‘let the Executive arm register the case, let the Executive arm investigate the case, but before you sanction prosecution, the evidence gathered in the investigation must be reviewed by an independent authority.’

“On the mandatory nature of an independent review of evidence, the Bombay High Court rightly concluded that ‘We are inclined to hold, that every safeguard, however minuscule, legislatively provided to the accused, must be zealously protected.’”

Succinctly summing up the issue, the PUCL argues that, “It is this finding of the High Court of the importance of procedural safeguards and in particular, the mandatory nature of an’ independent review of the evidence’ which the Supreme Court completely ignores.

“One is sadly reminded of one of the low points in the history of the Supreme Court, the decision in `ADM Jabalpur v Shivkant Shukla’ (AIR 1976 SC 1207) when the majority held that during the duration of the Emergency, there was no need for the executive to comply with the procedure laid down for detaining persons under MISA as the right to life under Article 21 stood suspended. This cavalier approach to procedure is castigated by Justice Khanna in his historic dissent in ADM Jabalpur who rightly opined that, ‘The history of personal liberty, we must bear in mind, is largely the history of insistence upon procedure’.

“The Bombay High Court delivered a judgment which was scrupulously fair, pointing out to the unfairness of the trial court’s conviction. The High Court observed that the UAPA Special Court / Sessions Court, Gadchiroli, had stated that ‘imprisonment for life is not a sufficient punishment to accused 6 – G.N. Saibaba and the hands of the Court are tied in view of the fact that the imprisonment for life is the maximum punishment statutorily provided’. This observation of the Sessions Court is rightly castigated by the Bombay High Court which notes that, *‘We do not approve of the unwarranted observations of the learned Sessions Judge, which may have the unintended consequence of rendering the verdict vulnerable to the charge of lack of dispassionate objectivity.’

“It’s unfortunate that the Supreme Court, cites the very same trial court judgment, ignoring the observations of the constitutional court, the Bombay HC. By relying on the Sessions Court judgment, which according to the Bombay High Court lacked ‘dispassionate objectivity’, the Supreme Court has provided its imprimatur to a decision which was prima facie prejudiced, lacked judiciousness and impaired the idea of justice as fairness.

“The Supreme Court by ignoring the reasoning of the Bombay High Court, also implicitly gave its stamp of approval to the state’s argument that those who were ‘urban naxals’ were not entitled to the benefit of procedural safeguards of law. By doing so, the SC put aside its obligation to ensure the ‘equal protection of laws’ to all persons without fear or favour.

“Finally, the Supreme Court did not take into consideration that Prof. Saibaba is suffering from 90% disability and has suffered from the inadequate health facilities in Nagpur Central Prison. He has suffered close to 8 years imprisonment and cannot take care of himself. This negligence regarding the protection of the right to health of prisoners, can have tragic consequences as seen by the death of one of the convicts in this case, Pandu Narote. If the Supreme Court had at least permitted house arrest, it would have thereby allowed for appropriate medical care and treatment to be rendered by his family members. Prof Saibaba is not a flight risk and detention at home should have been seriously considered by the Supreme Court. It is unfortunate that the Supreme Court did not show the requisite constitutional compassion.

“Regrettably, the consequence of the SC staying the Bombay HC order discharging him is hat Prof. Saibaba must remain in jail until the SC delivers its verdict in the appeal filed by the Maharashtra police against the Bombay HC ruling.

“The crucial question is what if eventually the SC upholds the Bombay HC order?

“If it does so, then Prof Saibaba and the others convicted will continue to be in wrongful confinement. This would be a deep blow to the idea of justice and fairness. If the Supreme Court were to go on to conclude that non-compliance with sanction requirements, especially in special enactments like UAPA are only procedural and directory and not substantive and mandatory, it would indeed be a tragedy. If that happens, the ghosts of ADM Jabalpur would have truly come home to roost.”

Related:

Defence Committee for GN Saibaba Urges SC to Reconsider Case, Wife Says ‘Will Wait for Justice’
Supreme Court suspends Bombay High Court order acquitting GN Saibaba and five others in Maoist links case, all to remain in jail
SC to hear urgent appeal against GN Saibaba’s acquittal
Bombay HC acquits Professor GN Saibaba & five others in Maoist link case

The post SC Staying acquittal of Prof. Saibaba and 5 others sets a dangerous precedent: PUCL appeared first on SabrangIndia.

New Delhi: For the supporters, friends, colleagues and family of former Delhi University professor GN Saibaba, a Bombay High Court judgement acquitting the wheelchair-bound academic on Friday was a resurgence of hope that lasted only a day. The very next day, the Supreme Court suspended the High Court’s release order.

The Committee for Defence and Release of Saibaba felt that the SC’s move undid the Bombay High Court’s judgment that finally served justice to Saibaba and others who have been incarcerated for almost seven years.

The Committee said that the reversal of the HC judgment in a great hurry was a reflection of the justice system in India.

Saibaba and others were convicted in 2017 on terrorism and criminal conspiracy charges under various sections of the Indian Penal Code (IPC) and Unlawful Activities (Prevention) Act (UAPA). The Bombay HC had quashed the conviction of Saibaba and others on grounds of a procedural lapse during the prosecution.

Amid the grim situation, Saibaba’s wife and activist Vasantha told Newsclick: “We have hope regarding the judiciary. We will wait for justice.”

Expressing deep worry about Saibaba’s poor health and further aggravation of his 90% disabilities, the Committee said in a statement, “We appeal to the Supreme Judicial Authority of the country to review and reconsider his case and take the Judgment of Bombay High Court into consideration and acquit him and others in this case. This would restore public confidence in the Justice system of our country.”

It said that the condition of Indian jails and their punitive (instead of reformative) nature has led to the deaths of Stan Swamy and  Pandu Narote.  “This should not repeat in the case of Saibaba who has been voicing his concerns on the suffering of the marginalised sections of the society,” it said.

The statement further said, “The observation of the court that he has a powerful mind is negation of the essence of freedom of thought J. S. Mill wrote in his book on “Liberty” that “Unrestrained Freedom of Thought is the hallmark of Democracy.” Dissenting voices as Justice D.Y. Chandrachud observed work as a check against the arbitrary exercise of power by the executive authority; unchecked power is like pressure cooker which can lead to a burst at any time if the dissent is not allowed.”

The Defence Committee noted that the judiciary must protect the freedom of citizens and balance it against the power of the State. “If they have to err it should be on the side of freedom,” it said.

A section of activists and Left outfits on Saturday expressed disappointment with the Supreme Court’s decision. The All India Students’ Association (AISA) held a demonstration at the Delhi University’s Arts Faculty, demanding the release of Saibaba hours after the SC stayed his acquittal, news agency  PTI reported.

The police detained around 40 students and teachers protesting at the DU Arts Faculty. The Left-backed AISA, however, claimed the number of detainees is higher, and also alleged the protesting students and teachers were “beaten up and manhandled” by the police.

Courtesy: Newsclick

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On Saturday, the Supreme Court suspended an order by the Bombay High Court that acquitted former Delhi University professor GN Saibaba and five others in a case surrounding their Maoists links. The SC held that the HC had not considered merits of the case and instead granted the acquittals on the grounds of lack of sanction. The result of this urgently heard intervention filed by the Maharashtra government is that professor GN Saibaba and all others, including Prashant Rahi will remain in jail.

LiveLaw quoted excerpts from the Order as it was being dictated: “High Court has not considered the merits. HC has discharged the accused only on the ground that sanction was invalid and some material which was placed before the appropriate authority and sanction was granted on the same day.”

The SC further held, “We are of the firm opinion that the impugned judgment of the High Court is required to be suspended…It is not in dispute that even considering Section 319 CrPC and the decision of this court in the case of 1976(3) SCC 1 the appellate court in an appeal against acquittal, can suspend the order of acquittal/discharge. Therefore, this court can suspend the HC order.”

The Supreme Court’s Order may be read here:

Acquittal by the Bombay High Court

Readers would recall that on Friday, a Nagpur Division Bench of the Bombay High Court had acquitted GN Saibaba (accused no.6), who is 90 percent disabled and wheelchair-bound. The court had also acquitted accused no. 1-5: Mahesh Kariman Tikri, Pandu Pora Narote (who died in August 2022), Hem Keshavdatta Mishra, journalist Prashant Rahi Narayan Sanglikar and Vijay Nan Tirki. In 2017, they had been accused of “waging war” against the nation and had been convicted under sections 13 and 18 of the Unlawful Activities (Prevention) Act (UAPA) read with Section 120 (B) of the Indian Penal Code by a Sessions Court in Gadhchiroli.

On Friday, the HC bench of Justice Rohit Deo and Anil Pansare, allowed their appeals and ordered their immediate release. The HC noted that the sanction to prosecute GN Saibaba under UAPA was granted by the Maharashtra government after the trial began, and not before it as is procedure. The court thus held that the entire trial was thus invalid. In case of the other five accused, the court held that the grant for sanction was sought without proper reasons, and was therefore a breach of the mandatory provisions of UAPA. The court noted, “We are inclined to hold that every safeguard, however miniscule, legislatively provided to the accused, must be zealously protected.”

The HC had ordered, “Sessions Trials 30/2014 and 130/2015 are null and void in the absence of valid sanction under Section 45(1) of the UAPA, and the common judgment impugned is liable to be set aside, which we do order.”

Urgent hearing in the Supreme Court

Shortly after the Bombay HC Order, Solicitor General Tushar Mehta demanded an urgent hearing against the appeal, claiming the acquittal was not justifiable. LiveLaw quoted excerpts from the State’s appeal against the acquittal: “The High Court by the impugned judgment has reversed a well-reasoned and detailed judgment of conviction of the accused which was after considering at length the provisions under the UAPA Act, the material collected against the accused and other facts and circumstances of the matter.” As the bench of Chief Justice UU Lalit had risen by then, the matter was presented before a bench of Justice DY Chandrachud and Justice Hima Kohli who directed him to move an application before the registry for urgent listing. On Friday evening, the matter was listed for hearing on Saturday, a holiday, before Justice MR Shah and Justice Bela M Trivedi at 11 A.M.

Arguments by both sides

On Saturday, Solicitor General Tushar Mehta informed the court that as far as accused number 1-5 were concerned, the contention was that the sanction was not proper. At this point Justice Shah pointed out that the High Court was of the opinion that the Central Forensic Science Laboratory (CFSL) report was not considered and that the sanction was granted the same day without adequate reason. Then SG Mehta pointed out that as far as accused no.6 i.e GN Saibaba was concerned, SG Mehta said that the grounds of sanction were not raised during the course of the trial, but only at the appellate stage.

He further invoked Section 465 of the Code of Criminal Procedure as per which mere irregularity in sanction was not a ground for acquittal. The section is reproduced here:

Cr PC 465 – Finding or sentence when reversible by reason of error, omission irregularity.

(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.

SG Mehta further submitted that the purpose of the sanction was to prevent a vexatious trial, that if after a full-fledged trial, persons are found guilty, the trial itself cannot be deemed vexatious later.

Senior Advocate R Basant appeared for professor GN Saibaba and submitted that while the date of framing charges was February 21, 2015, the date of obtaining the sanction to prosecute the accused under UAPA was April 6, 2015. He also submitted that though no application was made during the trial stage about the delay in obtaining sanction, a plea to this effect was raised during the cross examination stage.   

He also appealed that the HC order not be suspended, saying the accused was prepared to execute under section 437 A of the CrPC requiring accused to remain present before appellate court. He prayed that the order to release the accused not be suspended as it would only serve to prolong their incarceration.

Senior Advocate Basant drew the court’s attention to the fact that professor GN Saibaba was paraplegic with 90 percent disability. He submitted that Saibaba’s heath was deteriorating that he should be permitted to preserve his health. He further argued that while the State had claimed that he was the mastermind, there was nothing to show his involvement.

SC Bench passes order

The Supreme Court Bench then proceeded to dictate its order. It noted that even according to Saibaba, the appeals were argued on merit. However, the High Court did not enter into the merits of the case or consider anything on the merits of conviction.

The Bench proposed a detailed examination of the following questions:

1)     Whether considering Section 465 CrPC, after the accused is convicted on merits, whether the appellate court is justified in discharging accused on the ground of irregular sanction?

2)     In a case where the trial court has convicted the accused on merits, whether the appellate court is justified in discharging accused on the ground of want of sanction, particularly when objection with respect to no sanction was not raised specifically during the trial?

3)     What will be consequences of not raising the dispute with respect to sanction during the trial and thereafter permitting to trial court to proceed further despite the opportunities given to accused?

The court finally ruled, “We are of the opinion it is a fit case to suspend the impugned judgment and order of the High Court.” Suspending the HC order until further notice, the SC also said, “Counter if any to be filed on behalf of A6 within a period of four weeks. Counter is any on behalf of other accused to be filed withing four weeks of receipt of notice.”

Related:

SC to hear urgent appeal against GN Saibaba’s acquittal
Bombay HC acquits Professor GN Saibaba & five others in Maoist link case

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