By suspending the Bombay High Court order aquitting Delhi University professor G.N.Saibaba and four others convicted in a case under the Unlawful Activities Prevention Act UAPA,1967,the Suppreme Court has caused grave injustice.
The manner in which the Supreme Court dealt with the Màharashtra governments appeal against the Bombay High Court order setting aside the conviction of Saibaba and four others have shocked the leagal fraternity.
The order of the Nagpur bench of the Bombay High Court comprising Justices Rohit Deo and Anil Pansare came on Friday 14 October. The same evening the Solicitor General Tushar Mehtha , in the absence the Chief Justice U.R Lalit , approached the senior most judge Y.B Chandrachud praying for a stay on the order directing the immediate release of the five convicts . Justice Chandrachud and Hemma Kohli refused to stay the order and said He has got an order of aquittal in his favour…we cannot stay the order.The matter could be taken up on Monday for issuing notice to all concerned, he added.
However the SG on Saturday evening approached CJI , U.R Lalit who referred the application to a bench comprising Justices M.R Shah and Bela M Trivedi which at a special siting the same evening suspended the High Court order.
Never before did the Supreme Court convene a special sitting to consider an application for stay on an High Court order, that too to keep five people confined in jail. The Supreme Court convenes special sittings only when matters of grave sonsequeces are involved, like the country’s security, breakdown of governance or matters of life and liberty of citizens. One fails to understand the urgency in the present case specially when the main accused and convicted and acquitted in the case, 55 year old Professor G.N Saibaba is wheelchair bound and suffer from various ailments due to which 90 percent of his body is disabled.
Justice M.R.Shahs remark during the proceedings that the High Court did not go into the merit of the case, but found a short cut is soomething very disturbing even to the dumbest law student , considering the fact that the 101 page High Court judgement is very comprehensive , well argued and will go a long way in reforming the shody criminal investigation and trial system that has resulted in arrest and prosecution of hundreds of civilrights activists in the country on trumped up charges even since independence.
Justice Shah , echoing the prosecution argument further remarked that the High Court did not pass an aquittal but a dicharge order and no finding of the trial court was reversed. Whether acquittal or discharge the convicts were to be freed following the High Court order. At one point during arguments Justice Shah asked Senior Counsel R.Basant whether the accused should benefit where the High Court erred. Has the Supreme Court already conclluded that the High Court erred even before the the very vital issues of law in the the use and abuse of the provisions of UAPA which the High Court has dealt with in its judgement is analysed in detail.
When senior advocate R.Basant drew the attention of court to the medical condition of Saibaba and pointed out that he is being only alleged to be the brain and only ideological involved Justice Shah refusing to grant any relief to Saibaba responded so far as Maoist activities are concerned the brain plays a significant role !
Acquitting Delhi University professor G.N Saibaba and four others in Maoist linked case under UAPA teh Nagpur bench of the Bombay High Court held that the entire trial against theaccused to be null and void in the absence of valid santion uder section 45 ofthe UAPA. The sanction to prosecute G.N.Saaibaba was accorded by the Maharashtra goverment after the trial began against him instead of being submitted before,rendering the entire process invalid the High Court order said.
As for the remaining accused the Directorate of Prosecutions , reviewing authority, report to the State home department seeking grant of santion was sans reasons , a breach of mandatory provisions of sub-section (2) of section 45 of UAPA, the court held. It rejected the prosecution,s argument of egregious defect in or absence of sanctin is a curable defect.
We are inclined to hold that every safeguard , however miniscule legislatively provided to the accused must be zealously protected.Departure from the due process of law fosters an ecoosystem in which terrorism burgeons and provides fodder to vested interests to propagate narratives the order 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 civill democratic society can ill afford sacrificig the procedural safeguards provided , and which is an integral facet of the due process of law, at the altar of perceived peril to national security, the judges observed
The Siren Song that the end justifies the means, 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 order said .
The HC judgement has cleared a very important aspect that under UAPA , a court cannot take cognizance of an offence until sanction is received from the Union or State government .The sanction is to be given within a prescribed time only after considering the report by an independent authority which is expected to review the evidence and give its recommendation.
Sanction serves the salutory object of providing safeguard to the accused from unwarranted prosecution and agony of trauma and trial, and in the context of the stringent provisions of the UAPA, is an integral facet of the due process of law the order added.
Saibaba was arrested on 16 February 2014, the court had taken cognizance of the case ,framed charges against him in February 2015 and examined the first witness before the sanction for prosecution was submitted in April 2015.Consequently the High court said : We hold , on the authority of the Constitution Bench decision of the Hon,ble Supreme Court in Baij Nath Prasad Tripathi , that if cognizance is taken without complying with the requirement of valid sanction the entire trial shall stand vitiated.
