‘Deeply troubling’: Why experts criticise SC order suspending Bombay HC’s acquittal of GN Saibaba

The Supreme Court decision on Saturday suspending an order of the Bombay High Court on Friday discharging wheelchair-bound former Delhi University professor GN Saibaba and five others in a case where they had been convicted for having alleged links to Maoists has invited sharp criticism from legal experts.

Many have questioned the haste in listing the matter before a special bench on a holiday, as well as the preliminary suspension of a High Court’s reasoned order on the first day of the hearing without going into the facts of the case.

Saibaba’s case

Saibaba, who is 90% disabled, and five others had been convicted by a trial court in 2017 for allegedly having links to the banned Communist Party of India (Maoists) and a frontal organisation, the Revolutionary Democratic Front. Five of them were sentenced to life imprisonment, while one was sentenced to ten years imprisonment.

On Friday, the Bombay High Court found that the proceedings in these trials were “null and void” as they did not have a “valid sanction”. Under Section 45 of the Unlawful Activities (Prevention) Act, 1967 – the anti-terror law used to convict the six accused – a government sanction is mandatory before a court can take cognisance of an offence. The government also has to consider an independent report by a prescribed authority reviewing the evidence before it decides on granting permission.

For Saibaba, the sanction was given after the trial began. For the five others, the independent report recommended the sanction for the prosecution without giving any reasons. As a consequence, the High Court held that the trial had been flawed from its inception. It ordered the convicts to be released as soon as they furnished bail bonds of Rs 50,000 each.

Supreme Court appeal

At 4 pm on Friday, the Maharashtra government filed an appeal against this order before the Supreme Court. Tushar Mehta, the solicitor general, went before a bench comprising the senior-most judge Justice DY Chandrachud (as Chief Justice UU Lalit was not sitting) and asked that an appeal against the High Court order be heard. The chief justice of India has the sole discretion in how cases are listed and who hears these cases.

Chandrachud said that he could list the case on Monday, but cautioned that “even if we [they] take it up on Monday, we [they] cannot stay the order” since “he [Saibaba] has got an order of acquittal in his favour”.

Mehta then made an application to the registry – which handles case listings under instruction from the chief justice – that the petition be listed on Saturday. This was accepted.

As a result, on Saturday, which is a non-working day for the court, a special bench comprising Justices MR Shah and Bela Trivedi heard the matter. While Mehta appeared for the Maharashtra government, only one accused person, Saibaba, was represented before court.

The court said that the accused persons 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 the accused not guilty. Rather, it only discharged all the accused on the ground that the sanction was not valid.

It said that the accused could apply for bail and listed the matter for the next hearing on December 8.

Undue haste

Many legal experts have criticised the Supreme Court’s handling of the case, on the grounds that the case was listed before a special bench on a holiday and that the the Bombay High Court’s order was suspended at the very first hearing.

While cases are urgently listed before the court in emergencies, lawyers said that Saibaba’s case was not an emergency. “Saturday hearings are ordinarily sought to protect individual rights,” senior advocate and former Karnataka Additional Advocate General Aditya Sondhi told Scroll.in. “Rarely so at the instance of the state to keep an acquitted/discharged accused in custody.”

Besides, said Delhi-based senior advocate Sanjoy Ghose, “I can understand the hurry for priority listing of a death sentence matter, where the execution is to be carried out in the evening…or [a case involving a] dreaded terrorist who is at flight risk, is listed on priority.”

However, according to both Ghose and Sondhi, Saibaba was unlikely to flee. “The accused in this case could hardly be considered a flight risk, keeping in mind his disability, and the conditions imposed by the Bombay High Court in its order,” Sondhi said. Civil society groups had earlier asked for him to be released on health grounds.

Reversals rare

Several experts said that the Supreme Court’s suspension of the High Court’s decision at the first hearing was also unusual.

The Bombay High Court judgement acquitted the six accused, Mumbai-based criminal lawyer Yug Mohit Chaudhry pointed out. “A judgement of acquittal is entitled to the greatest respect, and the liberty of an acquitted person cannot be stayed except in the most compelling circumstances, which in this case….are completely absent,” he said. Justice Chandrachud had also raised the same concerns when Mehta had mentioned the case before him.

In this case, the Supreme Court’s decision was based on the fact that the High Court had not considered the order on merits but only on the grounds that sanction was not sought properly. However, lawyers explain that even these seemingly “technical” grounds become extremely important in criminal cases.

“In criminal courts, especially [in matters related to] the Unlawful Activities (Prevention) Act, you cannot even get bail, unless you have a ‘technicality’ in your favour,” Mumbai-based senior advocate Mihir Desai, who had earlier been involved in Saibaba’s medical bail, said. Laws such as the Unlawful Activities (Prevention) Act have been criticised by legal experts for being unduly harsh and being used by governments to target critics.

“These ‘technicalities’ are substantive rights which the accused have,” Desai explained.

The order by the Supreme Court will lead to “disproportionate and irreversible outcomes where the accused remains in confinement pending the hearing...even when the High Court has highlighted the gross violation of his right to liberty,” Sondhi said.

Several legal experts said that the court could have issued notice to the other side and continued with the case while letting the High Court’s order be in force.

Bench’s composition

Further, several lawyers also questioned the composition of the bench that heard the matter. Shah and Trivedi, who heard the case on Saturday, are not hearing cases together on regular working days. Further, according to the Supreme Court roster, which specifies the kind of cases that will be allotted to a judge, Shah (who led the Saturday bench) is not allotted criminal cases.

“The choice of judges who constituted the bench is also unusual and deeply troubling,” said Chaudhry. “Why was the matter not assigned to a regular bench which would have happened had this matter been listed on a regular court day?”

Chaudhry clarified that while “these factors may not be decisive or even determinative, but the appearance of justice being done is equally important”.

Ghose, also raising questions about the Saturday bench, said there might be good faith justifications for these concerns, such as the non-availability of other judges. But he thought that the chief justice should have sent the matter to a regular bench.

“In sensitive matters, you should act with caution, so that you do not give the public the wrong perception,” he said. “Optics of a case is also important: justice must not only be done, but must [also] be seen to be done.”