“Sai’s ideology is why he was arrested, and punished,” Vasantha Kumari had said about her husband, over a year ago in an interview with The Caravan. Sixteen months later, on 5 March 2024, the Bombay High Court did not disagree. In fact, in an order acquitting former Delhi University professor GN Saibaba and ordering his release, the Bombay High Court noted:
“No evidence has been led by the prosecution by any witness to any incident, attack, act of violence or even evidence collected from some earlier scene of offence where a terrorist act has taken place, in order to connect the accused to such act...”
This means the High Court found no evidence that could tie Saibaba to the terrorism charges he had formerly been convicted for. Thus, the court found that the case against him fell flat. It also found (among other things) that –
The state had not complied with various mandatory provisions which in itself “amounts to failure of justice,”
The sanction to prosecute had been invalid,
Mere access to literature on “Communist or Naxal philosophy” or even sympathy for it would not amount to an offence
And in an ideal world, this would have been enough. But GN Saibaba’s case is far from being ideal. In fact, the manner in which it has unfolded has the potential to permanently stain the legacy of our country’s law and order machinery. It is a case in which all mechanisms for and institutions of justice appeared to have crumbled. It is a case which begs one simple question:
Who keeps a disabled, ailing, wheelchair-bound professor in jail for 10 years, when the evidence against him proves nothing?
As per Vasantha, her husband has no muscle growth below his waist owing to polio. He is also a cardiac patient and has a cyst in his brain.
Brief Recap
GN Saibaba was arrested in 2014 and subsequently convicted for terror-related offences, under the stringent UAPA (which makes grant of bail virtually impossible) in an alleged Maoist-links case. In October 2022, the Bombay High Court cited an absence of adequate, legal sanction and ordered his discharge and immediate release. However, before the former professor could even take a step out of jail, the Supreme Court sat, that too on a Saturday, and suspended the High Court order.
Then in April 2023, it sent the matter back to the Bombay High Court, ordering that a different bench reconsider the appeal. But this different bench too found no reason to hold him back, obliterating the prosecution’s case against him.
Additionally, as soon as the High Court order was passed, the State filed an appeal against the decision in the Supreme Court - once again.
But if Saibaba’s is a long, meandering tale of horrors, that of his co-accused seems scarier still.
What Good is an Acquittal for Pandu Narote?
While the Bombay High Court has also acquitted all five of Saibaba’s co-accused, one of them, an agricultural worker and a member of a scheduled tribe from Maharashtra’s Gadchiroli, will never get to return home.
This is because Pandu Narote contracted swine flu in jail and died as a prisoner in August 2022.
He was 33 years old at the time of his death. He had neither met his wife nor his daughter since his incarceration in 2013. Narote’s life, snuffed out by the horrors of incarceration, begs yet another question:
What good can an acquittal, as delayed as this one, ever do for him?
It also reminds us of Father Stan Swamy’s death, as an incarcerated under-trial in connection with the Bhima Koregaon case. The Jesuit priest was 84 years old and suffered from Parkinson’s disease, and his health had continued to crumble significantly during his imprisonment. And yet, his pleas for bail had been rejected several times. Weeks before his death, Stan Swamy had told the Bombay High Court that all he wanted was to go home.
“The courts have to be liberal about granting bail. They have to also consider disabilities, illnesses, trauma inflicted on the undertrial and the family, and adopt a compassionate approach. Stan Swamy was 84 years old and he died in jail. Saibaba is over 90 per cent disabled. Why are these things not taken into consideration?”Former Supreme Court Justice Madan Lokur
Reflecting on the plight of those still incarcerated, Justice Lokur said: “It seems to me that increasingly, the courts are lacking compassion.”
He noted that former Delhi Deputy CM Manish Sisodia’s wife is unwell and the court has granted him permission to visit his wife once a week. “The court appreciates that he needs to be with his wife. Why not grant him bail? There is no question of him running away,” Justice Lokur added.
Should There Be Compensation?
Since the acquittal order in GN Saibaba’s case, several people have questioned whether there should be a means of compensating Saibaba and others for the trauma and loss inflicted by prolonged spells of incarceration.
Compensation, by itself, is not unheard of in Indian law.
In 1983 (Rudul Sah vs State of Bihar), a man was awarded a compensation of Rs 30,000 after he had remained incarcerated for 14 years post his acquittal. In Sebastian M. Hongray vs Union Of India (1984), the Supreme Court awarded Rs 1 lakh as compensation to the kin of two people who had disappeared after having been picked up by the Army. In 1993 (Nilabati Behera vs State of Orissa), a woman was given compensation of Rs 1,50,000 after her son died in police custody.
Justice Lokur had recounted these instances (among others) in a speech quoted by The Wire in 2021. Then, he had added:
“But for some reason, after Nilabati Behera’s case in 1993, or perhaps these illegal arrests did not take place or for some other reason which I don’t know, the jurisprudence of granting compensation for violation of human rights more or less died down.”
On being asked if GN Saibaba’s case too warranted compensation, the former judge told this reporter:
“GN Saibaba was first discharged by the High Court in October 2022. This order was immediately stayed by the Supreme Court and later the matter was remanded to the High Court. He has now been acquitted about a year later. He deserves to be compensated for years of avoidable incarceration.”
In Justice Lokur’s opinion, there ought to be a mechanism for compensation, and at the very least, Saibaba should be reinstated as a DU professor and given his salary.
“But there is another very serious problem,” Justice Lokur added. “Cases take years for decision.”
“This means that even innocent people spend several years in jail, until the court finally decides that there is no evidence against them. Since there are so many such cases, it will become very difficult for the State to compensate everybody. Therefore, the more important thing is that the trials should be expedited or bail should be granted.”
The Cost of Freedom
Meanwhile, it also ought to be mentioned that while the Bombay High Court order does pave the way for Saibaba’s release, it still does not appear to fully set him free.
Far from being awarded compensation, Saibaba and his surviving co-accused have in fact been asked to execute a bond of Rs 50,000 each with surety. This, the court says, is in accordance with Section 437-A of the CrPC. The bond and sureties, as per the section, remain valid for a period of six months.
But does this direction stand scrutiny by legal experts?
According to Justice Lokur, “the High Court’s order to Saibaba and others to execute a bond of Rs 50,000 each under Section 437-A is incorrect.”
This, he says, is because the High Court is operating on the assumption that the Supreme Court is an appellate court for the High Courts. But, he points out:
“The Supreme Court is not an appellate court for the purposes of 437-A. This provision is applicable in the event of an appeal, from a magistrate to a district judge, or from a district judge to the High Court.”
And How Much Compensation is Enough Compensation?
Looking past the legal whirlwind of sureties and appeals and compensations, a few questions of human pertinence linger. And they are terribly difficult to answer:
What truly is the cost of time lost? Will any amount buy GN Saibaba his lost decade? The one in which he could have taught and healed and been with his Vasantha. Will any amount fill the hole that has been burned into Pandu Narote’s family? Will any compensation ever be enough?
Two years after Stan Swamy's death, his friend Father Joseph Xavier had said: "What happened to him shouldn’t happen to others."
One must think of those who can still be saved. Those who must still be saved. Those who still remain locked behind the thick bars of injustice, with their liberty out of reach.
In a poem in 2019, Saibaba had asked, from the confines of his cell:
Kabir says,
He’s a messenger of love for people
Why do you fear my way so much?
(The other five who have been acquitted along with GN Saibaba are Pandu Narote, Prashant Rahi, Mahesh Tirki, Hem Mishra and Vijay Tirki)
(With inputs from Caravan, Wire, Scroll and Livelaw.)
(Mekhala Saran is studying Global Media and Digital Communications at SOAS, University of London. She was formerly The Quint's Principal Correspondent - Legal. Find her on X @mekhala_saran.)
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