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. 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.