The unprecedented order of the Supreme Court suspending the acquittal judgment of the Bombay High Court, which declared Prof. GN Saibaba innocent, shocked many people, including legal luminaries. The undue haste with which the apex court had taken up the issue of hearing the appeal filed by Maharashtra Government squashing an exhaustive and well written order of Bombay High Court is clear injustice to the former professor of Delhi University who served more than seven years of imprisonment proving once again that the process itself is punishment. The Bombay HC on Friday discharged Saibaba and four others in an alleged Maoist conspiracy case. Within hours of the HC order, the Maharashtra government, appealed to the SC against HC decision and the apex court thought it necessary to hear the case posthaste on Saturday, a holiday.
It is understood that the appeal was made to Justice DY Chandrachud who said he would take it up on Monday indicating that he would not in all probability suspend the acquittal order of Nagapur Bench of Bombay High Court. It was then that a special bench was formed and the appeal was heard on Saturday morning. The opinion of the senior most judge, slated to become Chief Justice of India soon, Jutice Chandrachud, was rejected and a special Bench was formed. It indicates that there are divergent views in the same apex court on the same issue. It is said that justice should not only be done but it should be seen being done. In this case the people are left guessing in the absence of transparancy.
As an observer commented, it may be mere coincidence that it was all Gujarati affair. The Solicitor General Tushar Mehta is a Gujarati. The two learned judges comprising the special SC Bench Justice MR Shah and Justice Bela Trivedi have Gujarati roots. Even the judiciary appears to have a Gujarat Model. On the top of everything, the accused Prof. Saibaba is disabled to the extent of 90 percent and is confined to a wheel chair. Never before, perhaps since 1976, an order of release by a HC was suspended by the SC in this hurried manner. The 1976 judgment gives the SC the power to suspend an acquittal order, but the suspension should not have been resorted to without hearing the full case. Heavens would not have fallen had Saibaba and others were out of the jail for a few days abiding by the condition that they should be available to the authority for further proceedings in the court. They are also required to file a bond.
The HC’s contention was that the required sanction for prosecution under UAPA was invalid because the cognizance of the charges was taken and a witness was examined even before the sanction was furnished. The HC said the procedure followed by Gadchiroli sessions court was invalid. The HC had dealt with the issues involved in a detailed manner.
The High Court judgment has important aspect about the sanction. The HC order said, “We must note in all fairness to the learned Special Public Prosecutor that the position that the learned Sessions Judge took cognisance of the offence against accused Saibaba and framed charges in the absence of sanction, is not disputed.” Colin Gonsalves writes in his article titled ‘Court Vs Court,’ published in Mumbai Indian Express on Monday, that the HC said in its order, “We hold, on the authority of the Constitution Bench decision in Baij Nath Prasad Tripathi case, that if cognisance is taken without complying with the requirement of valid sanction, the entire trial shall stand vitiated. This is a complete answer to the strenuous submission that the invalidity or absence of sanction is a curable defect”. The then Home Minister P Chidambaram said in Parliament that the government is providing full safeguards and the entire evidence would be examined by an independent authority whose findings will be interposed by the government with its own inputs to arrive at a conclusion whether to give the sanction for prosecution or not. The HC described the six-line report by Director of Prosecution for the State of Maharashtra as ‘laconic.’ The report has conclusions sans reasoning. The HC said the sanctioning authority had paid lip service to the legislative part of the matter. It is a serious indictment which was not considered by the special bench of the SC.
The SC Bench which emphasised that the law and facts have to be thoroughly examined before the acquittal was given failed to do the same before suspending the acquittal order. The SC did not follow what it said. It did not find fault with the judgement of the Bombay High Court. It only said the Bombay HC did not go into the merits of the case and it gave the order basing on the technicality. The SC Bench only went by the argument of the Solicitor General that the charges against the professor and others are serious in nature. But the report submitted by the Mahatashtra Director of Prosecution was non-serious. It was not based on the exhaustive examination of the evidence gathered by the police, as it was expected to be. The unseemly haste on the part of the apex court in making the life of the professor and others more miserable without any evidence of their alleged crime being examined is astounding, to say the least.
