INDIA: Let justice take its course.
Long road to freedom Saibaba leaves Nagpur Central Jail in April 2016
after the Supreme Court granted him bail s sudarshan
On March 7, 2017, the Sessions Court of Gadchiroli,
Maharashtra, pronounced a life sentence on Delhi University professor GN
Saibaba and four others, and a 10-year imprisonment on another. Many
are now questioning the wisdom of handing life sentences to persons who
had no accusation of violence against them and had, at the most, been
charged only with sympathising with and supporting the Maoist movement.
The security agencies, in their turn, attempted to justify the court’s
verdict through press statements that painted Saibaba as a “mastermind
of many arsons, murders, and abductions”. The Maharashtra Anti-Naxal
Operations (ANO) office even seemed to criticise the Supreme Court for
granting him bail earlier, stating that “72 offences were registered
during this period [when Saibaba was out on bail], which included the
murder of two policemen in explosion and encounters, 15 other murder
cases and other offences”.
Many in the mainstream
media were quick to pick up the ‘mastermind’ angle, without pausing to
ask how a person with 90 per cent disability, who spent much of the
period in question in Delhi hospitals, could direct violent operations
1,200 km away in Gadchiroli.
Some did point out that
the ANO statement conveniently did not specify whether the cases were
registered against the professor after his release on bail in April
2016; 72 registered crimes “masterminded by Saibaba”, but without a
single FIR in his name!
What’s
more worrying is when trial court judges start buying into this
narrative of “violent resistance directed by ‘white-collar naxals’ in
far-off metros”.
The 827-page judgement of Suryakant S
Shinde, the principal district session judge in Gadchiroli, displays a
reasoning that runs counter to the maxim “Not only must justice be done,
it must also be seen to be done.”
‘Not harsh enough’
In
para 1,013, the judge says, “Hence, merely because the accused no.6
Saibaba is 90% disabled is no ground to show him leniency and though he
is physically handicapped but he is mentally fit and he is a think tank
and high profile leader of banned organization CPI (Maoist) and its
frontal organization RDF and by the violent activities of accused nos. 1
to 6... the situation of Gadchiroli district from 1982 till today is in
paralyzed condition and no industrial and other developments are taking
place because of fear of naxal and their violent activities. Hence, in
my opinion, the imprisonment for life is also not a sufficient
punishment to the accused but the hands of the Court are closed
(sic)...”
The judge makes it plain that he personally
feels the accused deserved the only harsher sentence available in
Indian law — death by hanging. The law restricts death sentence to only
the rarest of rare cases when aggravating circumstances outweigh
mitigating circumstances. Shinde, however, offers no convincing basis
for his assertion in favour of a death sentence.
His
mention of “violent activities of accused nos. 1 to 6” is without basis,
as there is nothing in the charges, chargesheet or judgment that
alleges (let alone proves) this charge against any of the accused. There
is also no evidence linking the development of Gadchiroli, or lack of
it, to naxal violence.
These assertions are merely
the judge’s personal opinions, which have limited weightage under the
Indian Evidence Act. They would, however, certainly have served to
prejudice him in favour of conviction and the harshest possible
sentence. This bias is also seen in the rest of the judgment,
particularly during the crucial evaluation of evidence.
Rules bypassed
The
case rests heavily on the authenticity of the electronic evidence —
memory chips, hard disks, pen drives and the like — shown to be seized
by the investigating authority. As it is easy to tamper with electronic
evidence, the law is stricter on its admission. The essential
requirement of a certificate under section 65B of the Indian Evidence
Act has been bypassed under the pretext that “prosecution has proved
beyond reasonable doubt that at no point of time there was any
alternation (sic) or manipulation in the electronic data contained in
electronic gadgets.”
A trial court cannot waive the statutory requirement, but Shinde just brushed it away.
Biased evaluation
Eighteen
of the 23 witnesses examined were police or government officials, and
most others were professionalpanchas(apanchais a person called to
witness and check the truthfulness of a police action), who had been
used by the police in several cases, and included one who was a home
guard and another employed to clean the police station. Among the most
crucial witnesses was Jagat Bhole, thepanchfor the search-and-seizure at
the Delhi University home of Saibaba. Illiterate, he had been
specifically picked by the police over the numerous professors and
students present there at the time — possibly because they felt he would
be more amenable to manipulation.
Bhole, however,
told the court that “the police kept myself and Saibaba out of the house
and locked the door from inside while the search was going on”. This
obviously rendered thepanchnama(a record of the search) unreliable, as
it violated the provisions for searches and evidence gathering.
Judge
Shinde got around this by simply rejecting this part of the witness’s
evidence. His logic: “It is to be noted that this witness is illiterate
witness. He cannot read and write English language and his cross
examination was held in whole day that too by eminent lawyer having
standing practice of more than 25 years and this witness might have
frightened because of Court atmosphere.”
But the
judge did not use the same yardstick for other crucial evidence — for
instance, the confessional statements of accused 1 and 2. Both young
Madia and Gond tribals, they retracted their confession after alleging
that it was extracted from them in police custody through torture and
intimidation.
Judge Shinde chose to disbelieve the
complaint of ill-treatment and used an unbelievable leap of logic to
assert that Marathi, the language in which the confession was recorded,
was known to the accused. He states that the confession was retracted
through an “application in Hindi language and... accused no.1 Mahesh and
No.2 Pandu also signed in Marathi language”. Since Hindi, Marathi and
even Gondi (the mother tongue of the accused), all use the Devanagari
script, it is meaningless to conclude that the “accused were well
conversant with Marathi and Hindi” from their Devanagari signatures.
Contrast
this with the confessions of Swami Aseemanand, a blast accused, that
were made well after he was out of police custody and in jail. His
subsequent retraction was accepted, leading to his acquittal.
Going bananas on evidence
The
court uses the flimsiest of reasons to convict Prashant Rahi and Dilip
Tirki. It says, “Finding of incriminating article i.e. Yatri card
(Art.126) shows that accused no.4 Prashant Rahi was going from Delhi to
Raipur and finding of newspaper with him which was usually used by the
members of CPI (Maoist) and its frontal organisation RDF as
identification code to recognize each other shows that he was going to
forest area to meet underground naxals as alleged by the prosecution.”
The
court arrived at this conclusion based on an article by award-winning
Hyderabad journalist C Vanaja, who once reported how she established
contact with Maoists by using a particular newspaper and bananas as
identification codes. This article was shown to have been found on
Saibaba’s computer and used as evidence at the trial — a bizarre
reasoning that was considered sufficient to grant Rahi a life sentence.
Saibaba
has been the joint secretary of the Revolutionary Democratic Front
(RDF). In trying to establish that it is a terrorist organisation under
the Unlawful Activities (Prevention) Act (UAPA), the judgment attempts
to take upon itself powers that only the Central Government has. Its
logic: “there is photo of accused no.6 Saibaba and there appears a
meeting under the head of banner “Release all political Prisoners
unconditionally”... Saibaba is addressing to the people. This shows that
accused no.6 Saibaba is the active member of banned organization.”
Similarly,
elsewhere it states, “Slogan “Lal Salam” is used by naxals and members
of banned organisation RDF and hence it is clear that accused no.6 is a
member of banned organisation CPI (Maoist) and its frontal organisation
RDF and inciting the people with slogans Lal Salam Lal Salam.”
The
Supreme Court has often held that the implementation of procedural
provisions must be more rigorous in the case of special and stringent
laws such as UAPA. In a similar case involving writer-activist Sudhir
Dhawale and eight others, the Gondia Sessions Court had acquitted all on
the grounds, among other things, of the non-fulfilment of provisions
under the UAPA. The State appealed against the acquittal, but was
rejected outright by the Nagpur Bench of the Bombay High Court. In an
order passed just seven days after the Gadchiroli judgment, the HC gave
prime importance to the sanction order showing compliance with the
mandatory provisions of law, such as an independent review within the
time limit, and that the sanctioning authority was aware of material
that would constitute an offence punishable under the UAPA.
Overlooking basic principles
In
contrast, the Gadchiroli court has been lenient to the prosecution,
holding that the relevant sections of the UAPA were non-mandatory, and
non-compliance did not vitiate the proceeding. Another important
provision of law was given the short shrift.
In a
criminal case, the proof should be beyond reasonable doubt — that is, no
other explanation can be derived from the facts except that the accused
committed the crime. A civil trial, on the other hand, simply requires a
preponderance of probabilities — that is, its version of facts is more
likely than not the correct version, as in personal injury and breach of
contract suits.
At several points the judgment has
dispensed with the principle of proof beyond reasonable doubt. On the
other hand, it seems to be applying the civil trial principle in what is
clearly a criminal proceeding. “According to the defence, the newspaper
Sahara dated 19-8-2013 was found in possession of accused no.3 Hem
Mishra and newspaper Lokmat dated 20-8-2013 was found in possession of
accused no.2 Pandu Narote. This shows that accused were arrested on
20.8.2013. However, merely because the accused persons were found in
possession of newspapers dated 19-8-2013 does not mean that they were
arrested on 20-8-2013. According to the prosecution, newspaper is used
as identification code by the members of banned organization... Hence,
the version of the prosecution appears to be more probable than the
defence”.
Similarly, the principle of adverse
inference — “evidence which could be and is not produced would, if
produced, be unfavourable to the person who withholds it” — has been
turned on its head. The prosecution admitted to obtaining the CDR (call
details report) of accused 1 and 2 but withheld it despite the defence
asking for it to be produced, as it would prove false the prosecution’s
arrest story (according to the prosecution, the accused were arrested
along with JNU student Hem Mishra on August 22, 2013, from Aheri,
whereas the defence contends they were picked up from Ballarshah on
August 20 and their phone SIM were removed. The CDR would have settled
the question and, had the defence been found right, proved the falseness
of the very FIR on which the whole case is based).
Judge
Shinde blames the defence for not obtaining the CDR on their own,
overlooking the fact that such information can be shared by a telecom
company only on the orders of a court. The judgment abounds with
numerous such transgressions. The defence plans to appeal before the
Nagpur Bench of the Bombay High Court at the earliest, given the fragile
health of Saibaba.
Apart from his disability and
cardiac and orthopaedic problems, Saibaba is suffering from acute
pancreatitis, for which he was hospitalised in Delhi for four days just
ahead of the judgment. Amnesty International has raised the issue of the
alleged denial of medical treatment to him in jail.
Saibaba the human rights activist, however, is more pained by the misinformation shrouding the case.
In
a letter to his lawyer from prison, he says, “We are deeply pained by
looking at the false and defamatory and negative propaganda stories in
newspapers... targeted for exerting pressure and influencing public
opinion, in turn seeking to affect the legal process.”
Several
civil liberties activists and organisations have raised their voice
against the judgment. Two members of the European Parliament from Spain
and Germany have written to the European Commission, calling for
measures to ensure “all legal guarantees are respected under the highest
human rights standards for him and the rest of prosecuted people”.
Saibaba and his co-convicts can only hope that, whatever be the views on
the bench, they will not be permitted to stand in the way of justice.
vernon gonsalvesandarun ferreiraare human rights activists and former political prisoners
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