SC’s Saibaba order raises doubts about safeguards in UAPA, authority of HCs

On October 14, the Bombay high court (HC) passed a judgment discharging professor GN Saibaba and five other people in a case under the Unlawful Activities Prevention Act (UAPA). The accused were convicted and sentenced to life imprisonment by a trial court for various offences, including links with the banned Communist Party of India (Maoist). The case was appealed to the Bombay HC, and at the time of its judgment, the accused had spent more than five years in jail.

The basis of the HC’s judgment was that certain important procedural requirements under UAPA were not followed. Under UAPA, before a prosecution can go ahead, the government must grant sanction for it. This sanction follows upon a recommendation by a competent authority, which is supposed to conduct an independent review of the evidence provided by the investigative agencies.

In this case, however, the HC found that the directorate of prosecutions — the competent authority — failed to apply its mind to the material before it. This, the HC held, was a critical failure in maintaining the procedural safeguards under UAPA, especially given the stringent character of the Act. Consequently, the convictions of the accused were set aside.

The six accused, however, were not fated to walk free despite the HC’s judgment. The same evening, the State’s counsel “mentioned” the case before the Supreme Court (SC). The SC listed the State’s appeal against the HC’s judgment for the following day (ie, Saturday, the weekend). After a hearing, a two-judge bench of the SC “suspended” the HC’s judgment while it considered the “larger issues” in the case. In the meantime, the accused persons would stay in jail.

The SC’s conduct is profoundly concerning and undermines the procedural safeguards under a draconian law such as UAPA and the authority of the HCs.

First, the urgency with which the appeal was heard was extraordinary. Yes, the SC — and other courts — have had weekend sittings before, and sittings at late hours of the night, in exceptional cases. But these were cases where an individual’s life or liberty was under immediate threat: A death sentence at dawn, imminent imprisonment or loss or destruction of property. This is consistent with the judiciary’s role as the guardian of fundamental rights and a bulwark against State impunity. However, in this case, the position was reversed: Here, the SC held an extraordinary weekend sitting to suspend an HC judgment that granted certain people their liberty and to keep them in prison. When we notice that one of the accused — professor Saibaba — is 90% disabled, the SC’S action grows even more concerning.

Further, this was compounded by the fact that the two-judge bench that heard the case was not a “regular” bench but was constituted for this hearing; indeed, one of the judges on the bench — justice MR Shah — is not even on the roster for hearing criminal law cases. All this calls into question the way in which the Chief Justice of India — as the “master of the roster” — exercised his discretion in the assignment and listing of this case.

On its terms, the SC’s order is of equal concern. The HC passed a reasoned, 100-page order justifying its conclusion, including the importance of taking procedural safeguards under UAPA seriously. None of this is dealt with in the SC’s order, where the basis for “suspending” the HC’s judgment is that “larger issues” must be addressed. Apart from depriving the accused of the liberty they were entitled to by virtue of the HC’s reasoned judgment, the order sends a signal across the judiciary, ie, that the sanctity of procedural safeguards under UAPA is negotiable, at best. Given that UAPA has several draconian provisions — which make the grant of bail virtually impossible — procedural safeguards are all that stand between the individual and State impunity.

In recent times, the SC has won praise for re-establishing its role as a constitutional court, hearing matters that have been in storage and holding the State to account. However, with its order in GN Saibaba’s case, one cannot help but fear a reversion of the SC to an “executive court”, where considerations of expediency and reasons of the State submerge individual liberty and constitutional rights.

Gautam Bhatia is a Delhi-based advocate

The views expressed are personal