Hyderabad: After five years of sufficient turmoil, repeated appeals and one demise, Delhi University professor GN Saibaba, agriculturalist Mahesh Tikri, student Hem Mishra, journalist Prashant Rahi, and labourer Vijay Tikri, finally found themselves released from prison.
The five individuals alongside their now deceased co-accused Pandu Narote, were accused of “hatching a criminal conspiracy to wage war against the Government of India and planning to use criminal force to overawe Maharashtra government and the Government of India.”
The accused were charged under Sections 13, 18, 20, 38 and 39 of the Unlawful Activities (Prevention) Act read with Section 120B of the Indian Penal Code (IPC).
The arrest of GN Saibaba and the remaining five men garnered significant media attention owing to allegations of being Maoists. Saibaba, an advocate of Adivasi rights, had in the past condemned Operation Green Hunt, a military offensive launched by the then Congress government in 2009 with the sole aim of crushing Maoist rebels across the tribal belt of India.
The Bombay high court’s remarks with regard to the acquittal of GN Saibaba and the others in fact warrants a closer look at what was said in the courtroom. This becomes all the more pertinent considering the Supreme Court will have a special sitting on Saturday at 11 AM to hear the petition filed by Maharashtra Government challenging the acquittal.
As opined by various human rights activists, GN Saibaba’s involvement in terrorism or any form of violence has been disputed. The Bombay high court’s judgement today was welcomed by many with activist Kavita Krishnan remarking, “disabled human rights defender – proved innocent now – had to suffer what amounts to torture in prison for so long, damaging his health.”
This article is an attempt to better understand on what grounds GN Saibaba and his co-accused were acquitted. Siasat.com has accessed the judgement and will be breaking down the arguments presented by the two judge bench comprising of Justice Rohit Baban Deo and Justice AL Pansare.
“No real proof of terrorist activity”
The Bombay high Court bench discussed Section 20 of the Unlawful Activities (Prevention) Act (UAPA), under which Saibaba and the other accused were booked by the Maharashtra police.
Section 20 of the UAPA states, “Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.”
The Bombay high court bench accepted the submission canvassed on behalf of the defense. It accepted the argument put forth by the defense counsel that unless there is proof that the banned organisation was in fact involved in terrorist activities, Section 20 of the UAPA does not hold. In this regard, the bench impugned the order put forth by the sessions judge and invoked the Supreme Court order in Arup Bhuyan v State of Assam (2011) and Indra Das v State of Assam (2011).
‘No leniency to a man with 90% paralysis is dispassionate objectivity’
The earlier sessions judge verdict of March 2017 which had convicted the men observed that no leniency can be shown to GN Saibaba who is suffering from 90% disability since he is “mentally fit. It added that he is a “think tank of the banned organisation which by its violent activities has brought the industrial and other development in the naxal affected areas to grinding halt.”
The sessions judge further observed that imprisonment for life is not a sufficient punishment to GN Saibaba, but the hands of the court are tied in view of the fact that the imprisonment for life is the maximum punishment statutorily provided.
Responding to the sessions court verdict, the high court observed, “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.”
Sanction order: the failure of the prosecution
As per Section 45 (1) (i) of the UAPA:
“No court shall take cognizance of any offence
(i) under Chapter III without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf.”
In other words, the court cannot take cognizance of and start prosecuting a case unless the central government or an officer appointed by the Centre (a sanctioning officer) grants it permission to do so. After a sanctioning officer grants permission based on a thorough review and record of the case, can the court take cognizance of the matter at hand.
Pradeep Mandhyan, the lawyer representing all accused (except for Saibaba) argued that the report of the review committee in the current case conveys only recommendation of the analysis of the evidence collected.
Just the recommendation alone, Mandhyan argued, defeats the purpose of a sanctioning authority. The law intends that a sanctioning authority, must be aided and assisted by the review made by an independent and legally trained mind.
SP Dharmadhikari, who led the submissions on behalf of G.N. Saibaba, would submit that the sessions judge took cognizance on, framed charge and recorded the plea of GN Saibaba, and commenced the recording of evidence in the absence of sanction.
Essentially, the trial court had framed charges against all six accused on February 21, 2015 but sanction was only accorded later on April 6, 2015 thus going against the very notion of due process.
The court agreeing with the arguments put forth stated that “if cognizance is taken by the Sessions Judge in the absence of valid sanction, the Court is not a Court of competent jurisdiction..”
Court weighs in on sanction
Discussing sanction, the bench observed, “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.”
Statement given by Directorate of Prosecution Vidya Gundecha
“I perused – 1. Copy of F.I.R. 2. Copy of Panchanama. 3. Copy of Statement of witnesses, etc. 4. And other related documents (Image documents).
It is clear that there is prima facie evidence against the arrested and non-arrested accused persons in the Police Station, Aheri, Gadchiroli C.R. No. 3017/2013 (1) Mahesh K. Tiraki, (2) Pandu P. Narote, (3) Hem K. Mishra, (4) Prashant Rahi, (5) Prasad @ Vijay N. Tirki, (6) G.N. Saibaba u/s. 13, 18, 20, 38 and 39 of Unlawful Activities Prevention Act.
I therefore recommend to accord sanction in this case. This report regarding review of evidence is only with regard to the offences under the Unlawful Activities (Prevention) Act, 1967. sd/- (Vidya Gundecha) I/c. Director, Directorate of Prosecution, Maharashtra State, Mumbai.”
Response of the Bombay high court
The court pronounced that the report submitted by sanctioning authority (against Saibaba and others) is bereft of the summary of the analysis of the evidence collected during the investigation.
“In our considered view, the purported report of the appointed authority is, nothing less and nothing more than, a communication conveying the conclusion in the form of recommendation,” read the judgement.
The court further said, “We unhesitatingly hold that the sanctioning authority paid lip service to the legislative mandate and the report of the appointed authority was sought, and unfortunately given as a ritualistic formality.
The aforementioned reasons led to the acquittal of GN Saibaba and five others. While the conviction rate for UAPA is ridiculously low, the Bombay HC judgement has been cheered by the civil society.