The Supreme Court’s institutional memory of its vibrant contribution to individual liberties stood neglected in its recent decision to suspend the Bombay High Court’s order in favour of Dr.Saibaba.
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IN a curious and jilted recent turn of events, the Supreme Court, in contravention of the decades-old settled law and the procedural practice laid down by itself, had on a special Saturday hearing, overturned the acquittal of Dr. G.N. Saibaba by a division bench of the Bombay High Court. Although the high court had ‘acquitted’ him of allegations of conspiring with Maoists and Naxalites in a manner prejudicial to the sovereignty and security of India, both the Mahrashtra Government and the Supreme Court preferred to use the word ‘discharged’ to describe the high court’s order, on the ground that it did not go into the merits of the allegations against him.
On a mentioning by the Solicitor General of India, requesting the Supreme Court to stay the high court judgment, a bench presided over by Chief Justice-designate Dr. D.Y. Chandrachud categorically declined his request, stating that there was no earth-shattering necessity that the judgment acquitting Dr. Saibaba be stayed. The matter was, later in the day, mentioned before Chief Justice U.U. Lalit. The Chief Justice, acceding to the request of the Solicitor General, constituted a bench to examine the correctness of the judgment ‘discharging’ Dr. Saibaba.
What happens next is most shocking and least expected, especially of an institution as gallant as the Supreme Court. The court assembled on a Saturday and stayed the acquittal granted by the high court.
A little factual history is necessary here before venturing to examine the legal and moral propriety of the order passed by the Supreme Court, and whether or not judicial precedents were adhered to or even referenced. Dr. Saibaba, is an academic who was teaching English as an Assistant Professor at the Delhi University.
Along with six others, he was found to be in possession of literature and books that gave an impression of his association with certain banned organisations, namely the Communist Party of India (Maoist) and the Revolutionary Democratic Front, that were allegedly acting against the sovereignty and State interest of India. On the basis of finding this literature (papers, audio and visual media) and other such allegedly subversive and anti-national material, strong charges of waging war against India and provisions of the then anti-terror law were levelled against Dr. Saibaba. Based on this, he was arrested on May 9, 2014. He was denied bail by courts until recently, when he was acquitted by the high court.
The general opinion is that Dr. Saibaba deserves conditional bail, and at least his access to healthcare is not impeded by the State.
One of his co-accused is on bail; another one died pending conviction, and the remaining five, including him, were convicted by a sessions court in 2017. Since then, he has remained in jail without bail. Overall, he has spent over eight years of his life incarcerated.
High court’s reasoning
The foremost reason for the acquittal of Dr. Saibaba is that the in-built safeguards in the Unlawful Activities (Prevention) Act (‘UAPA’) were not followed, and that the sanction obtained to prosecute him was insufficient in light of the amendment of the law that envisaged sanction to be overviewed and examined by another committee under the UAPA. The high court held that no matter what the offence alleged is, it has to pass muster under the statutory procedure, and if the procedure has in place a mechanism to operate as a measured check and balance on the unbridled power under the Act, then it should be followed to the hilt. It therefore acquitted Dr. Saibaba on account of the procedure being not sufficiently complied with as per the UAPA.
Further, the high court only interpreted the law to say that since sanction is a sine qua non in the framework of special laws such as the UAPA (sanction is essential under the Prevention of Corruption Act as well as the Maharashtra Control of Organised Crime Act/Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act) and without a sanction, attempts to prosecute will be futile. Therefore, as an upholder of the law and abiding by the principle of parliamentary democracy and rule of law, the high court acquitted Dr. Saibaba, and more importantly, ordered a retrial which could be pursued by the State authorities after complying with the necessary safeguards prescribed by law. The only reason for doing so was because the sanction obtained was insufficient and would waylay a successful prosecution.
The Supreme Court, for reasons special, curious and unbeknownst to a rational mind, assembled on a Saturday and stayed the judgment of the high court. The lawyer appearing for Dr. Saibaba accepted the bench’s decision to stay the acquittal but prayed that he be placed under house arrest. This request again was opposed by the Union Government, and the high court’s judgment was stayed because if it was not, a colossal error on part of the high court would have been perpetrated, leaving a dreaded ‘naxalite’ and ‘urban naxal’ on the loose.
The high court held that no matter what the offence alleged is, it has to pass muster under the statutory procedure, and if the procedure has in place a mechanism to operate as a measured check and balance on the unbridled power under the Act, then it should be followed to the hilt. It therefore acquitted Dr. Saibaba on account of the procedure being not sufficiently complied with as per the UAPA.
The dichotomy here is that a week after the passing of this order, the Supreme Court granted bail to an undertrial accused of embezzlement and cheating in a housing scam, and interim bail was granted on medical grounds. The greater and more surprising aspect of this is that the same judge was present in both the division benches, staying the acquittal and refusing to grant house arrest to Dr. Saibaba, and granting bail on medical grounds to the promoter and alleged chief scamster of the Amrapali project.
A question that surfaces here is that – how can one judge have such disparate grounds of distinction in granting or refusing to grant bail, when in both cases, extraordinary medical attention is needed to be afforded to the individual? The chief technical difference, perhaps, is that the builder/promoter was accused of jaded offences such as cheating, fraud and embezzlement, whereas Dr. Saibaba’s case is a case of an ‘urban naxalite’ who has allegedly sought to create a storm by secretly conspiring against the territorial and sovereign interest of India.
The correct legal position
The law on the point is that an acquittal strengthens and bolsters the presumption of innocence that is conferred on every accused. It, in a manner of speaking, reinforces the belief of an accused not having committed the crime as alleged. It is relevant to quote what the Supreme Court held on this point in Ram Jag versus State of U.P. (1973):
“While holding that in appeals against acquittals the High Court has full power to review at large all the evidence and to reach the conclusion that upon that evidence the order of acquittal should be reversed, the Privy Council had pointed out that before reaching its conclusions on facts the High Court must always give proper weight to certain matters like the presumption of innocence, the benefit of doubt etc. This qualification upon a power otherwise wide and unlimited was no more than differently expressed by this Court in Surajpal Singh v. State [AIR 1952 SC 52 : 1952 SCR 193 : 1952 Cri LJ 331] , by saying that though it is well-established that the High Court has full power to review the evidence on which the order of acquittal was founded, “it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons”. (emphasis supplied by the author)
Previous special hearings
Let me briefly traverse through the recent history of the Supreme Court having special hearings. The court had a special midnight hearing in 2015 to get the death warrant executed against Yakub Memon, convicted in the 1993 Mumbai blasts case. The court had also in public interest intervened at midnight when approached to resolve the tussle between opposing factions in the state government immediately after elections in Karnataka. The court sat specially on a Saturday in 2019 to probe into allegations of sexual misconduct made by a Grade IV staffer against the then sitting Chief Justice of India.
Pertinently, the court sat specially in a case concerning malicious prosecution by a state government against a sole individual who was at the receiving end of its excesses for exploiting his right of freedom of speech and expression. The court, through a bench headed by Justice Dr. Chandrachud, not just sat for an entire day, dedicating all its judicial wisdom to the case, but gave a thumping judgment eloquently upholding the right of free expression.
The court has gone through a repertoire of judgments from the late 1970s to enlarge and expand the meaning of freedom, liberty and life. It acted as an almost divine protector of undertrials, bonded labour, economically backward sections and other vulnerable identities in the 1980s by securing a host of rights to them that were unavailable to them due to accessibility issues, and cracked the whip on locus standi to review larger public policy issues affecting individuals.
How can one judge have such disparate grounds of distinction in granting or refusing to grant bail, when in both cases, extraordinary medical attention is needed to be afforded to the individual?
Lastly, the court, most recently through a bench of Justices S.K. Kaul and A.S. Oka, upheld the bail granted to a leader belonging to a political party in Kashmir who was also charged with similar UAPA provisions. Another glimmer of positivity is that the Delhi High Court, while releasing an UAPA accused on bail, has directed the special courts to decide the issue of bail in a time bound manner, within 75 days of filing for bail.
A question that keeps harking is that whether the case of a person who suffers from many disabilities be decided adversely when there is an order of a division bench of the High Court acquitting him of all charges after a long legal battle of eight years.
One cannot believe that this is same Supreme Court which once stood as a bulwark of social justice and has now resorted to adopt a questionable procedure to reverse an acquittal, especially in a Saturday sitting, as though the liberty of the subject concerned was a mammoth public safety issue, when a parallel bench of the court upheld the bail granted to a similarly placed accused charged under the UAPA. It really propels one into an overdrive as to what were the compelling and urgent reasons for the adoption of a special process like this in the facts and circumstances of this particular case.