Opinion Bilkis Bano and G N Saibaba: A tale of two injustices

Rekha Sharma writes: While convicts in the Bilkis Bano case roam free after their premature release, wheelchair-bound Saibaba has been denied release after acquittal by raising the spectre of national security

It is nobody’s case that a person suspected of involvement in terrorist activities should not be dealt with with a heavy hand, but once acquitted he has every right to breathe free unless his acquittal is reversed into conviction by a higher court. (Express photos)

October 22, 2022 08:58 AM IST First published on: Oct 20, 2022 at 05:55 PM IST

The Supreme Court order suspending the operation of the judgment of the Bombay High Court’s Nagpur bench, which had acquitted former Delhi University professor, G N Saibaba, and four others in a case under the Unlawful Activities (Prevention) Act (UAPA) over alleged Maoist links, shows a disturbing trend. The High Court judgment was delivered on October 14. On the same day, the state rushed to seek a stay on it. The matter was taken up by a bench headed by Justice D Y Chandrachud, but it declined to stay the judgment. The state then approached the Chief Justice for immediate urgent listing of the case. The Chief Justice found the matter so grave, and the likely release of Saibaba from jail so serious a threat to the sovereignty and integrity of the nation, that he constituted a special bench, and directed the matter to be heard on the following day, which was a Saturday, a non-working day of the court. The desperation with which the state moved to stall Saibaba’s release was unprecedented. It was as though, on his release from jail, he would have vanished in thin air. Equally unprecedented was the alacrity with which the Chief Justice ordered the matter to be listed.

In the past, the Supreme Court has held special sittings, even at midnight, but these were cases where the accused were on death row. The only recent exception that comes to mind is of Chief Justice Ranjan Gogoi, who held a sitting on a Saturday in a case in which he himself was accused of sexual harrasment by a staffer. But Saibaba’s was a case of acquittal. The heavens would not have fallen if the matter had waited for two more days. The question is not about the power of the Chief Justice to order the listing of a matter before any bench at any time. It is about the unhealthy precedent that has been set. It is only in the rarest of rare cases that special sittings were held in the past, where the life and liberty of an individual was at stake. Never, perhaps, have they been held to take away the liberty of an individual who had secured the same through the process of the court, and not by executive fiat.

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In contrast to Saibaba’s case, we have before us the case of Bilkis Bano who was gang-raped during the communal violence that followed the Godhra train burning. She was 21 years old and five months pregnant at the time and 11 were convicted and sentenced to life imprisonment. However, the Gujarat government, as an act of state benevolence, granted remission to all 11 on Independence Day, and they were prematurely released from jail. On their release, they were greeted with garlands at the office of the Vishwa Hindu Parishad.

The incident led to public outcry, and many eminent persons petitioned the Supreme Court, urging it to revoke the early release of 11 convicts. But in this case the governments, both at the Centre and in the state, have maintained a studied silence, with no one standing up in the Supreme Court saying that the convicts’ release has led to grave miscarriage of justice. Now it has come to light that the Centre was also party to the 11 convicts’ early release. It was, therefore, futile to expect anything from the system. While the tormentors of Bilkis Bano are roaming free, she is once again condemned to live a life under the shadow of fear and uncertainty.

On the other hand, 59-year-old Saibaba is wheelchair-bound, and suffering from partial paralysis of his upper limbs with 90 per cent disability. He has been in custody since 2017, and was earlier twice granted bail on medical grounds. All these facts were brought to the notice of the bench by Saibaba’s counsel who pleaded, that if nothing else, he be ordered to be kept under house arrest, and all his telephone connections be disabled, but the judges were unmoved. Not very long ago, 84-year-old Stan Swamy, who was suffering from Parkinson’s disease, and who too was facing trial under UAPA, died in judicial custody. Such was the insensitivity of the jail authorities that he was not even given a sipper and straw, and the courts did not find time to hear his bail petition. His death caused public outrage, with many calling it judicial murder. One only hopes that Saibaba’s case does not go the same way.

It is nobody’s case that a person suspected of involvement in terrorist activities should not be dealt with with a heavy hand, but once acquitted he has every right to breathe free unless his acquittal is reversed into conviction by a higher court. UAPA is a stringent and draconian law. It is difficult — perhaps even impossible — for a person prosecuted under the said Act to obtain bail. That is why procedural safeguards, such as obtaining sanction from a competent authority appointed by the central or state government, as the case may be, before launching prosecution have been provided. It is against this background that the Bombay High Court made the salutary observation that “the fight against terrorism was important, but procedural safeguards cannot be sacrificed at the altar of perceived peril to national security.” The high-pitched arguments by the learned Solicitor General, raising every now and then the spectre of national security, cannot take away the fact that as of now the accused stands acquitted.

We are living in times for which hyper-nationalism is the byword. Nationalism is not the preserve of one political party, nor can it be said that those who think or act differently are necessarily anti-national. Let us hope and pray that our faith in the judicial system is not hurt when it is needed most.

The writer is a former judge of the Delhi High Court