On July 3, a two-judge bench of the Bombay High Court at Mumbai had granted Saibaba bail on reports that his health was deteriorated severely after 14 months in Nagpur jail. Wheelchair-bound Saibaba is over 90% disabled. He has been paralysed from waist-downward since contracting polio in childhood.
Saibaba had told Scroll that his muscles had been damaged while he was being taken to Nagpur from Delhi by the Maharashtra police. While in jail, the inadequate toilet and sleeping facilities caused damage in his left arm ligaments, nerves and his spinal cord. Since obtaining bail in July, the English professor has been undergoing treatment every week at the Indian Spinal Injuries Centre in New Delhi. He had an angioplasty in August.
On Wednesday, in a 22-page order the single-judge bench of Justice AB Chaudhari canceled Saibaba's bail and ordered him to surrender at Nagpur central jail within 48 hours by December 25, failing which he would be arrested.
No legal recourse
On Wednesday, at his residence in Delhi, Saibaba said he had applied for bail to the Nagpur bench three months ago. The Nagpur bench heard his bail application on December 11 but had reserved its order. Earlier, in September, the Bombay High Court's principal bench had extended Saibaba's bail till December 31. The new order of the Nagpur bench has now reversed this.
“In September, the Chief Justice of the Bombay High Court asked me to apply for regular bail at the Nagpur bench,” said Saibaba. “I was hopeful of obtaining bail. I have just now received this order, I am still to consult my lawyer.”
Rebecca John, a lawyer representing Saibaba, said that since the order had come at a “late stage”, it will be difficult for her client to get any relief from the Supreme Court in the next 24 hours. The court will close for winter break at the end of this week and only re-open on January 4. Saibaba will have to surrender in Nagpur by Friday.
The court order
The order canceling Saibaba's bail says that there is sufficient material for the court to consider that the allegations made against Saibaba under the Unlawful Activities (Prevention) Act as true and thus, to cancel his bail order. It states that the Revolutionary Democratic Front of which Saibaba is a member, though not banned by the central government, “could be called as frontal organization of the CPI (Maoist)”.
It cites a previous August 25, 2014 order of a single-judge bench of the Bombay High Court led by Justice SB Shukre that had then rejected Saibaba's bail on medical grounds, saying that the court had found that the applicant was then “being properly treated in jail” while in Nagpur Central Jail. The order notes that Saibaba did not challenge this at that time. It was only in June 2015 that the principal bench of the Bombay High Court admitted a Public Interest Litigation by a social worker Purnima Upadhyay to consider Saibaba's bail plea on medical grounds.
The order notes that Saibaba could have applied for bail on medical grounds, but adds:
“However, on 12.05.2015 an article appeared in Outlook along with a photograph of the applicant written by Arundhati Roy...”
The order cites several pages of Roy's article and notes that the article had a “mala fide motive to interfere in the administration of justice”.
“Instead of challenging the orders passed by Sessions Court and the learned Single Judge of this Court, the author appears to have invented a novel idea of bashing the Central Government, the State Government, the Police machinery so also judiciary and that was, prima facie, with a mala fide motive to interfere in the administration of justice.
The language used by the author in her article against the Government and the police machinery is as nasty as it could be and one really wonders whether the same would befit to the prestigious awards the author is said to have won. Calling the Government and police as being “afraid” of the applicant, “abductor” and “thief” and the Magistrate from a “small town”, demonstrate the surly, rude and boorish attitude of the author in the most tolerant country like India...
...The author has even gone to the extent of scandalizing and questioning the credibility of the higher judiciary by giving examples of the orders of 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. Is it not the fact that the Central Government, the State Government, the police machinery and the armed forces are fighting for prevention of unlawful and terrorist activities in the country when the Naxal plague has taken a pincer grip.”
At the end, the order cites a report of the Out-Patient Department of the Indian Spinal Injuries Centre dated December 2, 2015, that advises Saibaba to continue physiotherapy, exercises and medication to treat “reduction in left shoulder movements and pain in back”, as proof that his health is “perfectly normal and in the same position as it was when he was in jail.”
Surendra Gadling, a lawyer representing Saibaba in Nagpur, said the eight-month-old Outlook article
was submitted in an affidavit by a group of lawyers to the Nagpur bench in the first week of December. He said this had happened in the context of a debate in court over which of Nagpur's matters could be decided by the Bombay principal bench. “A group of lawyers submitted an affidavit containing Roy's article saying that it was yellow journalism and it interfered with the administration of justice,” said Gadling. “But Saibaba had no role in the article.”
Author Arundhati Roy said she will respond to the order in court. Roy has to reply to the notice by January 25, 2016.
Saibaba's family and his lawyers said the academic's post-polio residual paralysis had worsened while in jail. “For several months, he has had shooting pain in his limbs," said Saibaba's wife Vasantha. "It has got so bad that earlier, in July he was going to the Spinal Injuries Centre thrice a week, but now his left arm and back are so weak and in pain that he has to go it every day of the week."
His lawyers said they will make fresh appeals for bail on health grounds. “The order notes that a single bench of Justice SB Shukre had rejected Saibaba's bail plea on health grounds in August 2014, but then a year later, a two-judge bench of Chief Justice of Bombay High Court led by the Chief Justice Mohit Shah and the same Justice SB Shukre had accepted that Saibaba's health had deteriorated a year later,” said a senior lawyer representing Saibaba.
Saibaba's family members said he was being targeted for questioning the state's misuse of its powers. “A disabled person supports poor people's rights and this is what the courts choose to do to him?” said Vasantha. "They have canceled his bail even as real murderers roam free."