GN Saibaba’s long struggle for justice: Why the Bombay HC had to overturn his conviction – twice

Human rights activist and former Delhi University professor GN Saibaba’s acquittal by the Bombay High Court for terror-related offences under the stringent Unlawful Activities (Prevention) Act on Tuesday and release from the Nagpur Central Jail on Thursday was the culmination of an arduous legal struggle.

The High Court described the criminal trial that led to Saibaba being sentenced to life imprisonment a “failure of justice” and ruled that there was no incriminating evidence against Saibaba. It shows the investigation and prosecution of the case against him in poor light.

Saibaba, who is 90% disabled, wheelchair-bound and suffers from myriad health issues, had been convicted in 2017 to life imprisonment for allegedly having links to the banned Communist Party of India (Maoist) and a front organisation, the Revolutionary Democratic Front.

In 2022, the High Court discharged him from the case. An accused is discharged by court when there are not sufficient grounds for criminal proceedings against them. This is different from an acquittal – secured by Saibaba this week – which is when a court decides after a trial that there is no evidence that they committed an offence.

But in a highly unusual move, the very next day after he was discharged, the Supreme Court suspended the order and stayed Saibaba’s release. In April last year, it went on to set aside the discharge order.

Saibaba’s encounter with the Unlawful Activities (Prevention) Act and the Indian criminal justice system has been onerous and Kafka-esque.

Arrest, conviction and struggles in prison

Saibaba’s legal ordeal stemmed from a case in which the first information report was filed in August 2013. During its investigation, the Maharashtra police had conducted a search of Saibaba’s home in Delhi in September that year and then arrested him in May the next year.

At that time, Saibaba was an assistant professor of English at the Ram Lal Anand college in Delhi University. He was associated with campaigns against state repression and was a vocal critic of the Indian state’s treatment of tribal communities. He had no criminal record.

Between June and December 2015, he was granted interim bail for medical treatment by the Bombay High Court. The trial in the case began in December 2015. In April 2016, he was granted bail by the Supreme Court.

On March 7, 2017, the district and sessions court in Gadchiroli, Maharashtra convicted Saibaba under the Unlawful Activities (Prevention) Act for the offences under section 13 (punishment for unlawful activities), 18 (punishment for conspiracy), 20 (punishment for being member of terrorist gang or organisation), 38 (offence relating to membership of a terrorist organisation) and 39 (offence relating to giving support to a terrorist organisation) of the act.

While in Maharashtra’s Nagpur central jail, Saibaba was denied adequate medical care and dignified living conditions.

Already suffering at least 19 medical ailments, some of them life-threating, Saibaba’s health deteriorated significantly. Jail officials refused to allow medicines, stationery and other essentials brought by his lawyer to reach him. He also contracted Covid twice, in 2021 and 2022.

Placed in a high-security “anda cell” meant for solitary confinement, he was instructed only to use Hindi or English when writing letters or speaking to his relatives and not his mother tongue Telugu. He had to go on hunger strike to pressure the prison authorities to remove the cameras that captured his toilet and bathing area.

When his mother died in 2020, he was not allowed parole to attend her post-funeral rites.

In 2021, Ram Lal Anand College removed him from his post as assistant professor.

Discharge by High Court

In March 2017, Saibaba challenged his conviction before the Nagpur bench of the Bombay High Court. Five years later, in October 2022, the High Court discharged Saibaba, holding his conviction to be legally void.

It said that the proceedings in Saibaba’s trial did not have “valid sanction” under Section 45 of the Unlawful Activities (Prevention) Act. Under this provision, government sanction is mandatory before a court can take cognisance of an offence. Before it decides on granting permission for a case, the government also has to consider an independent report by a prescribed authority reviewing the evidence.

For Saibaba, the sanction was given two months after the police submitted the chargesheet against him to the court. By then, the court had already taken cognisance of the offences and he had been charged with them. As a consequence, the High Court held that the trial had been flawed from its inception.

Later that day, the Maharashtra government filed an appeal against the order at the Supreme Court.

Reversal by Supreme Court

Though the next day was a Saturday, a day on which the court was not working, the Supreme Court conducted a special hearing of the appeal. It suspended the order and stayed Saibaba’s discharge.

The court reasoned that Saibaba had been convicted of a “very serious” crime “against the sovereignty and integrity of the country”. Further, it said that the High Court had not dealt with the facts of the case and found Saibaba not guilty. Rather, it had only discharged him on procedural grounds.

In a way, the Supreme Court ruled that it was not sufficient for the High Court to have merely discharged Saibaba instead of acquitting him. However, under the law, a discharge delegitimises the entire trial, doing away with the need for an acquittal.

As Scroll had reported, the undue haste of the Supreme Court in holding the hearing and immediately suspending the High Court’s order had been sharply criticised by legal experts.

In April 2023, the Supreme Court set aside the High Court order. It directed the High Court to hear Saibaba’s appeal against his conviction afresh and decide the case on substantive grounds.

Acquittal by High Court

In May last year, the High Court assigned Saibaba’s appeal to another bench of its Nagpur bench. The new bench reserved its judgment in September and pronounced it on Tuesday.

This time, the court acquitted Saibaba. It endorsed the view of the discharge judgment that the prosecution was vitiated and the trial was “null and void” due to lack of timely sanction. In addition, it went into substantive grounds and decided that there was “total non-compliance” of provisions of the Unlawful Activities (Prevention) Act by the police relating to arrest, search and seizure. This rendered the trial a “failure of justice”, the court ruled.

Further, there was no incriminating material or evidence seized from Saibaba connecting him to any violence or terrorist attack, it held.

The court also flagged the credibility of evidence furnished by the prosecution against Saibaba. The prosecution side had relied on some pamplets of the Communist Party of India (Maoist), a report by the Revolutionary Democratic Front of its work and some interviews of the leaders of these organisations that the police had found on Saibaba’s computer to claim that he was connected with the banned extremist party.

However, the said that the mere possession of alleged Naxal literature, without any connection with any terrorist activities, is not an offence and that the prosecution’s case rested on “vague allegations”.

The judgment cast aspersions over the manner in which Saibaba’s home had been searched, outlining violations of provisions of the Indian Evidence Act and the Information Technology Act by the police.

A few hours after the order was pronounced on Tuesday, the Maharashtra government moved the Supreme Court against the acquittal.