Kept GN Saibaba in Jail, Made UAPA Harder: What Justice MR Shah Did in SC

On the day after Justice MR Shah's retirement, we reflect upon his time as a Supreme Court judge.

”The Indian Penal Code is punitive and deterrent, with its principal aim and object being punishing offenders for committing offences under the act."

There is perhaps no better way of describing Justice MR Shah's judicial philosophy than these words he reportedly uttered, while reversing a Punjab and Haryana High Court decision to reduce the sentence imposed on a motor accident case convict. The order, penned by Justice Shah, can also be read as a note of caution against "undue sympathy."

This is irrespective of the fact that the apex court has repeatedly favoured a gentler, more reform-oriented approach while interpreting penal provisions, even going so far as to say (as per Hindustan Times, in November 2021):

"The idea of punishment has to be reformative…We do not want to punish persons. They must be reformed and sent back to society.”

But reformative and restorative justice aren’t new, fashionable ideas. As early as in 1978, Justice Krishna Iyer had said (in Narotam Singh vs State Of Punjab):

“…the finer, more perceptive and sociologically relevant approach to punishment…is to take a holistic, realistic and humanistic size-up action (so) as to promote rehabilitation without offending community conscience.”

Justice MR Shah, however, with his orders on UAPA, default bail, IT Act, among others, has repeatedly trodden the more conservative road. He has also shown a striking tendency to lean, by way of his orders, in favour of the executive.

THE 'TERROR' OF AN ANTI-TERROR LAW (UAPA)

In March this year, a three-judge bench of Justices MR Shah, CT Ravikumar, and Sanjay Karol, passed an order criminalising even passive membership of an unlawful organisation under The Unlawful Activities (Prevention) Act, 1967.

Experts described this judgment as “one of the worst and most damaging civil rights judgments in its history” and said that it made an already draconian law (UAPA) further prone to misuse.

Pointing out that the “bench fails to note the generally low threshold applied to identify associations as unlawful under the UAPA”, advocates Jahnavi Sindhu and Vikram Aditya Narayan wrote for The Quint:

“Beyond associations already declared unlawful, people in India would now increasingly fear joining any association engaged in activities which might even partially involve forms of political dissent because of the fear of criminal prosecution ultimately resulting from the rampant invocation of the UAPA.”

The UAPA was already notorious for its capacity to stifle dissent. This judgment, unfortunately, takes that capacity to a whole other level, and it is hard to imagine how a Constitution that guarantees freedom of expression and liberty can curl in on itself to make room for such an onslaught on rights.

THE FAULT IN OUR STARS DEFAULT BAIL?

In January, a bench of Justices MR Shah and CT Ravikumar held that default bail can be cancelled after the chargesheet has been filed, if a strong case is made out.

Default bail is usually granted to an accused if the chargesheet is not filed within a set period of time (90 days or 60 days, depending on the offence).

The bench said that if the argument that the bail cannot be cancelled on merits is accepted, it will be akin to “giving a premium” to –

• Lethargy and/or negligence by investigating agency

• Deliberate attempt on the part of the investigating agency to not file the chargesheet within the prescribed time period

“In a given case, even if the accused has committed a very serious offence, may be under the NDPS or even committed murder(s), still however, he manages through a convenient investigating officer and he (the officer) manages not to file the chargesheet within the prescribed time limit…and (the accused) got released on default bail, it may lead to giving a premium to illegality and/or dishonesty,” Justice Shah further elaborated in the judgment.

Thus, the court drew upon extreme scenarios in which investigating officers supposedly help the accused by drawing out the investigation for far too long.  But how often are investigating officers realistically in cahoots with the very person they are investigating? And how much more frequently do they fight tooth and nail to hold an accused back in jail, to deprive them of liberty for as long as they can?

While the intent of this judgment is noble – to prevent lethargy, negligence, or dishonesty in the investigation, there may be a likelihood of the judgment having the very opposite effect.

Because the ramifications of this order will still be on the accused, the investigating agency may have far fewer reason to file the chargesheet in a timely manner. In case of non-bailable offence, as long as the agencies are able to disclose some special reason, the judgment allows cancellation of default bail and for the accused to be sent right back to jail.

Note: All this well before the accused is found guilty.

AND GN SAIBABA REMAINS IN JAIL

On 14 October 2022, the Bombay High Court discharged former DU professor GN Saibaba in an alleged ‘Maoist-links’ case. A mere twenty-four hours later a special bench of Supreme Court Justices MR Shah and Bela M Trivedi sat especially on a Saturday, and suspended the High Court judgment and stayed Saibaba’s release.

In their judgment suspending the High Court’s order, the apex court said “the High Court has not entered into the merits of the case and considered anything on merits of the judgment and order of conviction and sentence passed by the learned trial Court.” 

But experts noted that the bench did not say that the High Court’s conclusion was prima facie wrong.

“Unless, a superior court finds that the lower court’s order is unsustainable, you cannot stay the order. Not just because the court wants to look into the very fine points of law,” Senior Advocate Colin Gonsalves told The Quint.

Gonsalves also noted that this is not civil case, but a criminal case, where a man was scheduled to leave the jail, but is no longer allowed to.

Questions were also raised regarding the special sitting and the tearing hurry with which the appeal was heard by the apex court on a Saturday.

Manu Sebastian, in an article for LiveLaw, pointed out that extraordinary sittings have been held in the past when pressing issues of personal liberty were involved or to avert grave constitutional crisis. But “why a special sitting for a plea to take away the personal liberty granted by a High Court?”

Meanwhile Gonsalves said: “They could have let him go (home) for a month, two months, three months, however long it takes to hear the appeal properly. And then if they wanted they could have set aside the order and directed him to return to jail.”

GN Saibaba is 90 percent disabled, inflicted by 19 chronic and acute post-polio conditions, and is wheel-chair bound. 

Six months after staying his discharge and release, a bench of Justices Shah and C T Ravikumar remanded his case back to the High Court to be decided afresh by a different bench. He remains in jail.

OPTICS – NO BAR?

Even the optics of his judicial decisions did not seem to matter much to Justice Shah. For instance, only last week senior advocate Devdatt Kamat asked him to recuse himself from hearing incarcerated ex-cop Sanjeev Bhatt's plea (seeking to adduce additional evidence), but he chose not to.

Kamat had argued that Justice Shah had, as a High Court judge, passed strictures against Bhatt in hearings emanating from the same FIR. He also pointed out that the test is not whether the judge is actually biased or not, but whether there is a reasonable apprehension in the mind of a party of a likelihood of bias.

"Justice is not only to be done, but also seen to be done," the senior advocate submitted.

But Justice Shah was unmoved. Not only did he refuse to recuse himself, moments later he, along with Justice Ravikumar, also dismissed Bhatt's application for want of reasons to interfere with the High Court order.

The Executive Lens

Additionally, Justice MR Shah is believed to have often seen the side of the executive more clearly than that of any other.

For instance, earlier this month he held that where there is a clear law demanding tax, a doctrine of expectation (of exemption) from government won’t apply. This was a split verdict as Justice Krishna Murari was of the opinion that the doctrine would apply when industrial units are constituted with the allurement of tax exemption for a specific period.

Justice Shah, on his part, said:

“As per the settled position of law, nobody can claim the exemption as a matter of right. The exemption is always on the fulfilment of the conditions for availing the exemption and the same can be withdrawn by the State.”

In conversation with The Quint, Advocate Harshit Anand referred to this view as "conservative and in line with a school of jurisprudence which by its insistence on dogmatic interpretation, furthers the interest of the government."

Last month, a bench of Justices Shah and Ravikumar also held that an amendment to the Income Tax Act which replaces the word(s) “belong/belongs to” with  "pertain/pertains to" (as in who the incriminating material pertains to) will retrospectively apply to searches conducted prior to the date of the amendment, as well.

In an analysis for LiveLaw, Justice Akhil Kureshi, former chief justice of the Rajasthan High Court and the Tripura High Court, argued that this latest order warrants reconsideration.

He also noted that “the judgments across the board were thus unanimous that the expression “belongs or belong to” cannot be equated with “refers to” or "relates to." The revenue, however, desired a "lower threshold requirement.” 

In other news, Justice Shah is, controversially enough, reported to have referred to Prime Minister Narendra Modi as a “model and a hero” and “our most popular, loved, vibrant and visionary leader” on two separate occasions.

But he maintains that personal views are immaterial in a court of law, telling Bar and Bench: "Our personal belief has never affected the ultimate decision we give."

And while Justice Shah's judicial legacy may be dotted by controversies, and underscored by questions, it has also not been without some remarkable orders.

Career Highlights

Settling the law on the subject with a fair bit of finality, a bench of Justices Shah and Sudhansu Dhulia have held that once undisclosed income is found during an IT search, the Assessing Officer (AO) can (under section 153 A of the IT Act) assess or reassess the total income even in case of completed assessments.

However, if no incriminating material emanates from the search, the AO cannot do so.

Experts have hailed this judgment as “limiting the scope of reassessment to limit criminality,” and pointed out that this will prevent the assessing officer from going on a wild goose chase. 

But Justice Shah's personal favourite – a judgment which he says gave him "immense satisfaction" – perhaps really is the highlight of his career.

In March 2019, a three-judge bench of Justices AK Sikri, SA Nazeer, and MR Shah found six death row convicts had been falsely implicated, acquitted them and exercising powers under Article 142 (apex court's unique power to do complete justice) ordered the state of Maharashtra to pay Rs 5 lakh as compensation to each of the accused.

In Justice Shah’s own words (as told to Bar and Bench):

“We felt that this was a clear case of acquittal, because six persons were there and one person was in jail for a number of years and had psychological problems. We were in a dilemma as to what to do. Six poor tribal persons. So ultimately, we acquitted all.”

But do some acts of complete justice soften the blow of others? Is justice so temperamental, that it shines its light over some, while others languish in its shadow – perhaps under the UAPA or maybe post cancellation of default bail?

(With inputs from Hindustan Times, LiveLaw, Bar and Bench, The Print, and SCC.)