Blind to justice

Why the December 23 order of the Nagpur bench of the Bombay High Court — refusing Professor Saibaba bail and issuing a notice of contempt to Arundhati Roy — takes one’s breath away.

Written by Manisha Sethi | Published:December 30, 2015 12:01 am

 

saibaba, professor g n saibaba, DU professor, DU professor saibaba, Saibaba maoist link, saibaba maoists, saibaba medical check up, Bombay high court, saibaba news, mumbai news, nagpur news, india news Social activists staged a protest in Nagpur Thursday, demanding Saibaba’s release on bail. (Source: Express Photo)

Law is no stranger to prejudice or moral anxieties. Judicial pronouncements can sometimes cast aside constitutional values and defer to societal biases masquerading as righteousness. The recurrence of “collective conscience” in terror cases, where the threat of terrorism looms so large that it can overshadow the lack of evidence, is only too well known. Even so, the December 23 order of the Nagpur bench of the Bombay High Court takes one’s breath away. It rejected the regular bail plea moved by the lawyers of Delhi University professor, Saibaba, cancelled his interim bail which allowed him to receive treatment till December 31, and ordered him to surrender within 48 hours. Besides, the court issued a notice of criminal contempt to Arundhati Roy for her article, ‘Professor, POW’, published in Outlook magazine. The order will be remembered for its naked display of contempt for civil rights, partisanship and renunciation of judicial independence.

Wheelchair bound, Saibaba spent over a year in jail before the division bench of the Bombay High Court granted him interim bail on the plea of a social activist in June 2015. (Illustration by C R  Sasikumar) Wheelchair bound, Saibaba spent over a year in jail before the division bench of the Bombay High Court granted him interim bail on the plea of a social activist in June 2015. (Illustration by C R Sasikumar)

Wheelchair bound, Saibaba spent over a year in jail before the division bench of the Bombay High Court granted him interim bail on the plea of a social activist in June 2015. By then, three of Saibaba’s own applications had been rejected — twice by the sessions’ court in Gadchiroli and once by the Nagpur bench of the Bombay HC. Dismayed by Saibaba’s long and debilitating incarceration, Roy wrote the article, calling into question the manner in which he was arrested and charges framed against him and the successive denial of bail. Being 90 per cent disabled, Saibaba found it impossible in jail to perform simple, ordinary functions of changing clothes, relieving and cleaning himself, which robbed him of any modicum of dignity that even the worst offenders and convicts deserve. His fragile health was deteriorating rapidly. A medical report by the Central India Institute of Medical Sciences, Nagpur, presented in the court, said Saibaba suffered from anterior horn cell disease, in which progressive atrophying of nerves and muscles, unless treated, could lead to death. It could only be averted through pain management and supportive care apart from regular clinical follow-up with a neurophysician. His chest and cardiac ailments too required constant monitoring and re-evaluation by specialists.

While granting interim bail, the Bombay HC noted that supportive care required by Saibaba could be provided only by his family members. Further the court noted, “We are satisfied that if Professor Saibaba is not released on temporary bail for medical treatment and supportive care, as indicated above, there could be a risk to his life and health. On the other hand, releasing Professor Saibaba on bail for a period of three months for medical treatment would not cause any threat or risk to the security of the Nation.”

For the Nagpur bench, the medical certificate stating that Saibaba requires physiotherapy, medication and monitoring for the next three months “clearly shows” the condition of the accused is “perfectly normal and is in the same position as it was when he was in jail”. Such a justification to reject bail is perverse by ordinary standards of human decency. It wilfully ignores his declining health. Saibaba, long used to working with his two arms, had returned from the Nagpur jail with only one limb, his left arm as lifeless as his polio-struck lower limbs. Recalling Saibaba to jail is to impose an excruciating, slow death sentence on him.

The reason for denying bail to Saibaba on grounds of merit is identical to the reasons for which the court arraigns Roy for contempt of court. To speak up, dissent, question, and worse, accuse the government of wrongdoing, is seen by the honourable court as an act worthy of punitive reaction. The court calls Roy’s article her “game plan” to secure bail both on merit and health grounds. As far as one’s knowledge of law goes, arguing for bail — on whatever grounds — has not been listed a diabolical conspiracy. Accusing Roy of using intemperate language, the court calls her “nasty”, “surly”, “rude” and “boorish”, out to exploit the magnanimity of a “most tolerant country like India”. Few would have expected a judicial weighing in on the tolerance debate like this.

The court asks how Roy could vouch for Saibaba’s innocence: “The question arises whether she was an eyewitness to the arrest, search and seizure.” The legal and procedural requirements of joining in independent witnesses at the time of arrests, search and seizure are clearly laid out in the Supreme Court’s D.K. Basu guidelines. However, when the Gadchiroli police and intelligence personnel conducted a raid at Saibaba’s Delhi house in 2013, the occupants of the house were locked away in different rooms. None of his friends and colleagues were invited to witness the search and seizure. The “police machinery” ensured there were no witnesses. The seized laptops, pen drives and mobile phones were not sealed. Nor was a list of seized items made available to Saibaba. It was a patently illegal operation.

In fact, Roy’s description of Saibaba’s arrest as “abduction” is accurate. Waylaid by the Maharashtra police when he was returning home from the university, Saibaba was blindfolded and spirited away. Neither his family nor lawyers were informed.

The court is riled by the comparison Roy drew between the rejection of Saibaba’s bail applications and the bail granted to Babu Bajrangi, Maya Kodnani and Amit Shah. “Does the author know that the grant of bail depends on the facts and evidence in each case and there cannot be any such comparison,” the court asks. Indeed, the comparisons are farfetched. Kodnani and Bajrangi were convicted for their involvement in the Naroda Patiya massacre of 2002, where over 97 men, women and children were killed, whereas Saibaba at best is accused of being a member of a banned organisation.

But then, the Nagpur bench gives up all pretence of being an independent arbiter and protector of citizenry’s rights and displays a decidedly Home Ministry view of things. It taunts the applicant on whose letter the Bombay HC granted interim bail as an “alleged activist” and “the so-called human rights champion”. Every word of this order seethes against those who write or speak against “the Central government, the state government, the police machinery and the armed forces”who “are fighting for prevention of unlawful and terrorist activities in the country when the Naxal plague has taken a pincer grip”.

The Bombay HC had in June mobilised its “extraordinary prerogative and discretionary writ jurisdiction under Article 226 of the Constitution” to grant bail to Saibaba. The court held it “would be failing in its duty of protecting the fundamental rights of Professor Saibaba under Articles 14 and 21 of the Constitution, who was confined to a secluded cell and was not in a position to move this court on his own” if it did not grant bail under Article 226.

The virtuous anger of the Nagpur bench blinds it to its constitutional duty of protecting a citizen’s fundamental rights. It has allowed its own paranoia about “Naxal plague” to overwhelm judicial wisdom and commitment to law.

The writer teaches at Jamia Millia Islamia

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  1. P
    prashanth
    Jan 4, 2016 at 9:43 am
    Why dont you write about the human rights of those who these naxalites have killed, maimed raped and macered.
    Reply
    1. J
      Jai Kumar
      Dec 30, 2015 at 11:27 am
      Andher nagri. Chaupat Raja. The same judiciary declares Dalman Khan innocent. As they say Judiciary and the police are tools of state repression.
      Reply
      1. M
        maitreymehta
        Dec 30, 2015 at 8:12 pm
        Extraordinary article. Just being sympathizer of a banned organization can not be considered crime. Maoists might be wrong in principle and action but one should not forget it's creation by frustration against oppression for long time by corrupt politicians,police force and civil administration. Cure the disease not the symptoms.
        Reply
        1. K
          K SHESHU
          Dec 30, 2015 at 8:04 am
          Gone are the days when a dictum like "I may differ with your opinion but I will give my life to protect your freedom of speech' is valid. At least, he should be provided access to legal and medical help besides attendent to look after his daily necessities including commods for his use. Number of handicapped medically ill detainees are facing excruciating slow death.
          Reply
          1. M
            Mavala
            Dec 30, 2015 at 12:21 am
            The article held sway until it wheeled in the narcissist Roy. To the courts to their credit, described her accurately.
            Reply
            1. S
              Sukmm
              Dec 30, 2015 at 10:45 am
              Shocking, disturbing and dispiriting. Refusing bail to a handicapped, degeneratively ill person just on suion of naxal activity in a country where known murderers and rapists roam around free, makes one wonder if there is even a functioning justice system in this country. Terrifying what next this government will get up to.
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              1. D
                disgusted
                Dec 30, 2015 at 7:28 am
                Such tactics to pressurize the judiciary are utterly condemnable. Paid sympathizers must be dealt with sternly by the 'collective intelligencia'.
                Reply
                1. G
                  Guest4321
                  Dec 30, 2015 at 5:14 am
                  only thing breathtaking is the delay in this action. Naxals/Maoists and their sympathizers should have been tackled long ago. Arundhati Roy called Maoists "hians with guns" was that not incitement to violence? Where was the intolerant brigade then!
                  Reply
                  1. G
                    Girish
                    Dec 30, 2015 at 3:24 am
                    well, the judge must have been well rewarded for bootlicking.
                    Reply
                    1. G
                      Gopal
                      Dec 30, 2015 at 10:44 pm
                      Once, he is out on bail, the defendant's lawyers will start the process of delays. It will be decades, if ever, before a verdict is rendered. This is the modus opei of how powerful criminals escape punishment in India. Meanwhile, does this author care about justice or the civil rights of the railway pengers who dies then the tracks were sabotaged or the policemen or election officials who are blown up by cowardly Naxals using IEDs?
                      Reply
                      1. G
                        Gopal
                        Dec 30, 2015 at 10:49 pm
                        So the innocent people who are butchered by the Naxalites don't deserve justice because these people are supposedly fighting "oppression"? What about Saibaba or Arundhati Roy are they oppressed as well? In a billion people there will always be some who will have legitimate issues. Do they all have a license to murder?
                        Reply
                        1. P
                          prem singh
                          Dec 30, 2015 at 10:51 am
                          It is like how M/s Sonia & her son tried to pressurize judiciary, when summoned in court for alleged fraud in the National Herald news paper case, now Indian express is using same tactics in this case, please remember gone are the days when media used to blackmail judiciary or politicians in power. I will be surprised, if the print media will survive more than a decade from now.
                          Reply
                          1. R
                            Raj Menon
                            Dec 30, 2015 at 6:40 am
                            Justice needs to be done. Agree. At the same time, pseudo-intellectuals like Arundhathi should be restrained too.
                            Reply
                            1. R
                              Roshan
                              Dec 30, 2015 at 12:55 pm
                              Welcome to the new shining BJP/RSS led india where one and all have to bow to the RSS interpretation of the law and even Judges of the law are showing their true saffron colors and cowards are creeping out of their closets to make their long concealed feelings public.
                              Reply
                              1. V
                                Vinod Vinayak
                                Dec 30, 2015 at 6:32 am
                                The writer Manisha sethi says, “ law is no stranger to prejudice or moral anxieties”. I ask, “Do bullets, IEDs, Tiffin bombs, gas cylinder bombs, axe, and knives used by the Maoists are stranger to prejudice and moral anxieties”.
                                Reply
                                1. V
                                  Vinod Vinayak
                                  Dec 30, 2015 at 6:41 am
                                  ans to 3rd line: Do the ch inki sh it ea ters Ma o is ts show any form of “collective conscience” while de stroy ing school buildings, roads, bridges, etc, and ask for ex tor tion money from whoever is building the above (school buildings, roads, bridges).
                                  Reply
                                  1. V
                                    Vinod Vinayak
                                    Dec 30, 2015 at 6:46 am
                                    ans to last line 1st paragraph: What about the civil rights of those people who were killed by the te rr o r i s ts. The courts of India are dependent and the people courts held by the ch inki sh it eat ers are independent; this is the conclusion I figured out. The culprit is wheelchair bound and likewise hit ler was bunker bound. Hence no war crime should be ascribed to hit ler, and when we are with this thought process, we must broadcast the innocence of ma o, pol pot, sta lin, as they were co mmu ni sts. No one who takes the name of communism can commit any crime; isn’t it. The bi go try of the writer is so high that even one paragraph of her article is sufficient to fill any one with rage. Are we so uneducated that any can lecture us on civilized behaviour? We have to give her an educated reply. So Indian get ready to fight for real freedom.
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                                    1. V
                                      Vinod Vinayak
                                      Dec 30, 2015 at 6:38 am
                                      the indian express is again blocking my message.
                                      Reply
                                      1. V
                                        vasoo kamulkar
                                        Dec 30, 2015 at 11:19 am
                                        Vasoo Kamulkar Go back to your marbles, child. Do not babble and cry-out until muma gives you permission. I am ashamed that these children with pseudonyms are allowed to romp in the middle of serious conversation. The child is tarnishing the name of the INDIAN judiciary. There is no further adjectival qualification needed. I apologise Your Lordships on behalf of the spoilt children-Arundhati included.
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