Professor GN Saibaba suffers from over 15 critical ailments, some of which may prove fatal. He is 90 percent disabled and his health has steadily deteriorated since he was arrested in 2014. The pandemic has only heightened the risk to his life. Yet, on July 28, the Delhi University teacher who is serving a life sentence for alleged links with the Maoists was denied bail by the Bombay high court. The court had previously rejected a petition to suspend his sentence temporarily.

After the pandemic hit India, the Supreme Court and several high courts asked for decongesting prisons by granting inmates bail or parole. Citing these directions, Saibaba’s lawyer, NB Rathod, pleaded with the Bombay high court to grant the wheelchair-bound professor bail, or suspend his sentence temporarily. Rathod contended that with his multiple comorbidities, Saibaba was at high risk of falling prey to Covid-19. In fact, his health had significantly deteriorated and he required urgent medical attention, including surgery. Saibaba had nobody to look after him in prison, and the pandemic had made it hard for his family and friends to get him medicine. The lawyer further pleaded that Saibaba’s mother was critically ill and he was needed to be with her.

The Maharashtra government countered that Saibaba was being held in a high security zone inside the Nagpur Central Jail where chances of him contracting coronavirus were minimal. He was, in fact, more likely to catch it in Delhi, where he lived. The court agreed. It also said since Saibaba’s brother was looking after their mother, the professor did not need to visit her. His mother died soon after. Her dying wish to see her son one last time went unfulfilled. Saibaba was even denied a video call from her funeral. He then applied for emergency parole to attend the post-funeral rites. The application will be heard by the Bombay high court on August 18.

Saibaba came to national prominence for rallying against Operation Green Hunt, a military operation launched by the Manmohan Singh regime in 2009 to clear Central India’s forests of the Maoist rebels. However, as has been documented since, the security forces also targeted ordinary Adivasis, torturing, raping and killing them, and driving thousands from their homes.

Saibaba was one of the leading dissenters against Green Hunt. He helped mobilise prominent civil rights activists and groups against the operation, which they alleged was really intended to hand over the resource-rich Adivasi land to private corporations.

Saibaba’s dogged campaigning compelled the government to deny the very existence of Green Hunt. However, 11 years on, Adivasis are still being killed and their lands are being taken away. And activists, lawyers, scholars who oppose such atrocities are still being thrown in jail.

In 2017, Saibaba was convicted of being associated with Maoist rebels and the Revolutionary Democratic Front, a federation of worker, peasant, youth, student, women, and cultural groups that’s banned in Andhra Pradesh and Odisha. In its over 800-page verdict, the Gadchiroli Sessions Court claimed that the work of people like Saibaba and organisations like the RDF had a “deterring effect” on industrialisation and development in Gadchiroli, a hotbed of Maoist activities in Chhattisgarh. Such was the resulting damage, the court ruled, that even life imprisonment was not sufficient punishment for the ailing professor, he deserved greater retribution. Nonetheless, it settled on a life sentence.

As incriminating evidence of Saibaba’s guilt, the court relied largely on a cache of CDs, pen drives, hard drives, and laptops seized during a search of Saibaba’s Delhi residence in 2013. That the court had admitted this evidence in the first place raised troubling questions.

The curious case of the frightened witness

The witness who had signed the police’s seizure panchnama was one Jagat Bhole, from Delhi. He admitted in court that he had stayed outside while a joint team of Delhi and Maharashtra police searched Saibaba’s house; he could not tell a DVD from a CD, a pen drive from a bluetooth device and didn’t know what a hard drive was; he didn’t even know how to read or write.

Saibaba had requested that the search be done in the presence of a professor or a lawyer, but the police had refused to allow any of the teachers or students who had gathered outside his home on the DU campus to enter.

This was a clear violation of Section 100 of the Criminal Procedure Code that mandates the presence of the panchnama witness at all times during the search and seizure exercise. It also clearly declares that the occupant of the place being searched, or any other person on their behalf, shall be present during the search. These are basic and critical procedures enshrined in law to ensure transparency of investigation in a criminal trial. In Saibaba’s case, even these basic procedures were brazenly disregarded.

Similarly, in the panchanama, unique IDs of the electronic gadgets taken from Saibaba’s home weren’t mentioned. The labels on them had no seal or signature. This was in violation of Section 100 of the CrPC and also the Evidence Act, which lays down that for electronic evidence to be admissible, it must be accompanied by an affidavit detailing who collected which device from where. To this end, the device must be preserved and forensically examined.

Further, during his cross examination, Bhole admitted that he had been staying in a police shelter in Gadchiroli during the course of the trial, a fact that the prosecution hadn’t disclosed to the court. This, Saibaba’s lawyer Surendra Gadling argued, indicated that Bhole was a tutored witness. There were 5,000 students and teachers on the campus, but the police got hold of an illiterate man as witness, Gadling contended, because it would allow them to plant incriminating material and tamper with data from Saibaba’s devices. Section 118 of the CrPC states that a person who doesn’t understand the questions put to them and is unable to provide rational answers isn’t competent to testify before a court, the lawyer pointed out and asked for Bhole’s testimony to not be admitted.

The court was not moved, holding that the electronic evidence was credible. As to Bhole’s testimony calling into question the legality of the seizure of material from Saibaba’s Delhi home, the court mystifyingly said he might have been too frightened by the courtroom atmosphere to contextualise his statements. Ironically, Gadling, whose exceptional lawyering extracted the admissions from Bhole, became the reason for the court to deny any police manipulation in the matter: it observed that Gadling’s experience of over 25 years and knowledge of courtroom functioning might have frightened Bhole. Interestingly, Gadling was arrested in connection with the Bhima Koregaon case in 2018.

This month, Hany Babu, a DU professor who is a member of the Committee for the Defence and Release of Dr GN Saibaba, was arrested in connection with the same matter. The house of his wife, Jenny Rowena, was searched and documents about Saibaba which are publicly available were seized. These documents are now being used to implicate people associated with Saibaba like Prof PK Vijayan, who was summoned for interrogation by the National Investigation Agency last week.

The legality of Saibaba’s conviction

Saibaba’s case falls in the grey zone of anti-terror legislation such as the Unlawful Activities Prevention Act. The most important principle in criminal litigation is establishing guilt beyond reasonable doubt. In civil proceedings, in contrast, the preponderance of probabilities is favored. In Saibaba’s case, it appears that the criminal matter was decided casually according to a civil litigation principle.

The Supreme Court has reiterated that procedural provisions must be adhered to in all criminal matters. It has also said constitutional provisions and fundamental rights can’t be overlooked because of the statutory provisions of the UAPA. In Indra Das v State of Assam, the top court held the constitution was the highest law of the land and no legislation could violate it. Specifically, in the context of legal provisions that make mere membership of a banned group illegal, it observed:

The court added that the matter was similar to Arup Bhuyan v State of Assam, which related to the Terrorist Activities Prevention Act of 1987. In Arup Bhuyan, the court held that mere membership of a banned group couldn’t be held to be illegal.

Yet, in Saibaba’s case, weak and disconnected pieces of evidence were used to establish his links with banned groups. The disregard for procedures in the collection of evidence was particularly striking. In a similar matter involving Sudhir Dhawale, the Gondia Sessions Court in 2014 acquitted the journalist and human rights activist of UAPA charges because the police had failed to follow procedures and transparency in collecting evidence. The Kerala high court put it more eloquently in Shyam Balakrishnan v State of Kerala:

The judgement added:

In Saibaba’s case, these principles of the CrPC as well as the Evidence Act were utterly disregarded. The Gadchiroli court accepted mere slogans such as Lal Salaam as incriminating evidence of Saibaba’s involvement in inciting people to violence, a picture of him under a banner calling for the unconditional release of political prisoners as evidence of his active participation in unlawful Maoist initiatives. The judgement undermined every norm of justice and good conscience, and ended up being a tragic travesty.

Saibaba’s appeal against it is now pending before the Bombay high court.

In the meantime, despite appeals from international organisations such as the United Nations Human Rights Council and the Amnesty International, Saibaba remains incarcerated. He lives in pain, in unimaginable suffering. And without his income, his family is struggling for sustenance.

Update: On August 18, GN Saibaba's emergency parole application was also rejected by the Bombay high court. The government opposed the plea on the grounds that the last rites of his mother had already been completed. The court observed that given the coronavirus crisis it would be difficult to arrange for security personnel to transport Saibaba from Nagpur to Hyderabad. He has, however, been allowed one video call with his family. His pending appeal against his conviction in the high court has also been delayed due to the pandemic.

Ujjaini Chatterji is a lawyer in Delhi.

***

The media must be free and fair, uninfluenced by corporate or state interests. That's why you, the public, need to pay to keep news free. Support independent media by subscribing to Newslaundry today.