The acquittal of GN Saibaba raises more questions about the judiciary

Can a judge — who not only convicted the accused but also said he would have meted out more stringent punishments only if the law allowed him — be booked for delivering a faulty judgment without any evidence beyond a reasonable doubt?

Can the state organs — the police, the prosecution, and the judiciary — ride roughshod over citizens’ rights in the name of “discharge of duties” and “protection of law and order”?

Who decides whether the discharge of duties and protection of law and order were according to the principles of natural justice and civilised, democratic rule of law or with mala fide intentions to please the powers that be?

Related: ‘A wonder I could come out alive’

Subverted rule of law

The present case is a classic and textbook instance of subverted rule of law. It’s a case of travesty of justice, prolonged legal harassment, agonising incarceration, cruel and deliberate persecution, and procrastinated justice delivery.

It’s going to remain one of the landmarks in the Indian criminal justice system where justice had to wait 10 long years, killing one of the accused and imprisoning five others for seven to 10 years in the meanwhile, to be ultimately pronounced not guilty.

It is also a convoluted and hazardous journey in the legal jungle with several twists and turns.

The case became famous — or infamous — since one of the accused, Prof GN Saibaba, was an internationally-noted English teacher and a world-renowned scholar at one of the Delhi University colleges.

However, officially, the case is Mahesh Kariman Tirki and Others vs State of Maharashtra, registered in 2014 under Sections 10, 13, 20, 38 and 30 read with Section 18 of the Unlawful Activities (Prevention) Act of 1967 and Section 120-B of the Indian Penal Code.

Mahesh Tirki, Pandu Narote, and Vijay Tirki are Adivasis from Gadchiroli implicated in the case, along with journalist Prashant Rahi, JNU student Hem Mishra, and Saibaba.

The case was registered at the Aheri Police Station in the Gadchiroli district of Maharashtra in August 2013.

According to the police, Pandu Narote, Mahesh Tirki, and Hem Mishra were first arrested on 22 August, 2013, and Vijay Tirki and Prashant Rahi were arrested in the second batch on 1 September.

Saibaba was arrested on 9 May, 2014, and the Gadchiroli District and Session Judge Suryakant S Shinde delivered the judgment on 7 March, 2017.

Related: Saibaba, 5 others, acquitted

How not to write a judgment?

Shinde, who sentenced five accused to life imprisonment and imprisoned another for 10 years, was interestingly promoted to director of prosecution in the Government of Maharashtra immediately after the judgment.

Thus, he is now in charge of hundreds of prosecutors who manage cases on behalf of the state.

In that capacity, he delivered an online lecture on “how to write judgments” for the candidates appearing for a magistrate examination.

Ironically, he was introduced as one who delivered a “milestone judgment in the Naxalite Saibaba case”.

Even more ironically, during the lecture, he referred to the principle that “it is better a 100 guilty persons should escape than one innocent person should suffer”.

Indeed, his judgment made six innocents, as demonstrated by two different judgments of two different benches, in 2022 and now, suffer beyond imagination.

One innocent even died in jail on 25 August, 2022. The faulty life sentence turned out to be capital punishment for him.

Among the other five, four have been in prison for almost 11 years since their arrest in August-September 2013. Only one among them got bail for a brief period.

Then, Saibaba’s house was searched on 12 September, 2013, and he was arrested on 9 May 2014. He was released on bail on 3 July, 2015, but was again arrested and sent to jail on 7 March, 2017.

The conviction judgment was voluminous — 827 pages long. And at least 600 pages were filled with unnecessary full citations of various books and pamphlets several times.

Also read: Saibaba defence approaches Supreme Court

Sole reliance on prosecution

Without connecting the cited material to any “offence”, the judgment repeated whatever the prosecution said. It also quoted defence arguments and summarily rejected them without any counterarguments.

Even when the defence counsel proved that all the prosecution witnesses were stock witnesses — illiterate former home guards who stood witness to the seizure of electronic gadgets — the judge dismissed the arguments and followed the prosecution’s baseless accusations.

The judgment did not even consider that the prosecution did not follow mandatory provisions of the UAPA in search, arrest and sanction.

Thus, the 827-page hold-all judgment, even from Day One, would not have stood any scrutiny.

Naturally, the defence went for appeal, and within months — in June 2018 — principal defence counsel Surendra Gadling was arrested and shown as an accused in the Bhima Koregaon case. The appeal did not reach the bench for a long time.

Finally, on 14 October, 2022, Justice Anil L Pansare and Justice Rohit B Dev set aside the judgment purely on technical grounds.

In their 101-page judgment, they found fault with the conviction judgment on the technical grounds of sanction by a designated authority, said the conviction judgment was invalid, and acquitted all the accused.

Within hours, the Maharashtra government approached the Supreme Court, and with unusual haste on a Saturday, the Supreme Court bench stayed the Nagpur bench’s order.

Again, it took six months for the Supreme Court to set aside the Nagpur bench’s judgment and send back the appeal to be considered afresh by a different bench.

This bench, consisting of Justice Valmiki SA Menejes and Justice Vinay Joshi, reviewed the Gadchiroli judgment and, in its 293-page judgment, considered both technical and merit issues.

‘Suspicious, unreliable, invalid’

The current judgment’s comments on the conviction judgment as well as the so-called evidence and prosecution’s case are noteworthy — “suspicious”, “unreliable”, “invalid”, “supports the defence version”, “not inclined to rely on this evidence”, “not free from doubt”, “the suspicion is further raised”, “illiterate witness”, “speak volumes about the credibility of the process of entire search and seizure”, “not admissible”, “could not be relied upon”, so on and so forth!

Here are some quotes from the judgment that show the conviction judgment in a poor light:

• “The laconic half-page communication cannot be called a report since there is no material found therein to infer that the authority has reviewed the evidence gathered and formed a particular opinion on that basis.”
• “Every statutory safeguard made by a special statute must be followed scrupulously.”
• “The case in hand… persuades us to hold that the sanction is in variance with the special requirement of the UAPA and would go to the root of the matter, making the entire process invalid.”
• “Scanty communication of the Director of Prosecution does not stand the test of a valid report expected under the special law. Consequently, the sanction accorded in the absence of compliance with the mandatory pre-requisite cannot be termed a valid sanction within the meaning of Section 45(2) of the UAPA.
  “This was a fundamental error invalidating cognizance as being without jurisdiction. A defect of this kind is fatal and cannot be cured with the aid of general provisions of the Code. It must, therefore, follow that the Trial Court could not have taken cognizance of the offence punishable under the provisions of the UAPA for want of valid sanction.”
• “As regards accused No.6, G.N. Saibaba, the situation is even worse. We have amply expressed above that a valid sanction is a pre-requisite for launching prosecution under the UAPA.

‘Trial court framed charge without sanction’

The current judgment also notes: “We may reiterate that Section 45(1) of the UAPA puts a complete embargo on the Court to take cognizance in the absence of sanction. Admittedly, the Trial Court has taken cognisance and framed the charge without sanction.”

It adds: “To be noted here that the Trial Court has taken cognizance and framed the charge against accused No. 6, G.N. Saibaba, on 21.02.2015 whilst sanction against him was accorded on 06.04.2015 and tendered in the Court on 30.11.2015. Thus, there is total non-compliance with the sanction provision, which goes to the very root of the case, vitiating everything against accused No.6 from its inception for want of the authority of the Trial Court to proceed. In sum and substance, the prosecution against accused No.6 G.N. Saibaba for want of valid sanction is also totally vitiated.”

Its observations also include:

• “In substance, the entire process of search and seizure from the house of accused No.6 G.N. Saibaba is doubtful.”
• “The content of these documents, if taken cumulatively, would perhaps demonstrate that the accused were sympathisers of a Maoist philosophy or sympathized with the cause of certain tribal groups or certain people who were perceived to be marginalized or disenfranchised, and mere possession of such literature, having a particular political and social philosophy by itself, is not contemplated as an offence under the UAPA.”
• “These videos are of a rally at Hyderabad somewhere in 2012 in an open space, accessible to any member of the public, where various persons made certain speeches. The content of the speeches may portray dissent or criticism or even a streak of militancy, but by themselves, the content of these videos does 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 which had taken place in the past or to demonstrate how the persons in the video were directly connected with and responsible for the commission of any other act of terrorism.”
• “Playing several videos or requesting the Court to read through hundreds of pages of literature does not constitute evidence.”
• “It is submitted that no incident of violence occurred or is even alleged to have occurred. There is no material to infer the conspiracy since the prosecution has not spelt out what has been conspired to be done by the accused, besides a vague allegation of conspiracy to wage war against the Government.”

Those scathing remarks against the erroneous judgment now cannot bring back the life of Pandu Narote or 10 precious years lost in prison for the five others.

Who is to blame?

(The writer is the editor of Veekshanam, a Telugu monthly journal of political economy and society. Views are personal.)