HC Sets Aside GN Saibaba's Conviction, But UAPA Co-Accused Pandu Died Waiting

GN Saibaba's co-accused Pandu Narote died less than two months before he might have been allowed to walk home.

Former Delhi University Professor GN Saibaba is 90% disabled. He is wheelchair bound and inflicted by serious ailments.

He has also been serving a life imprisonment sentence for over half a decade, and several civil society organisation have repeatedly made calls for his release, saying:

"...Prof GN Saibaba has been losing his remaining bodily abilities because of neglect and lack of proper care and so his “life sentence” is turning into a “death sentence.”"

These appeals, however, fell on deaf ears. Saibaba’s parole request was reportedly rejected thrice and his medical bail was denied twice, despite him being on the “edge of death.”

Still, on Friday morning (14 October) news came that Saibaba and his co-accused have been discharged in the 'maoist-links' case against them by the Nagpur bench of the Bombay High Court.

The entire sessions court trial, which had led to their conviction under the UAPA, was held to be "null and void" for want of legitimate sanction (under Section 41(1) of the UAPA).

This means the High Court saw that proper procedure wasn't complied with and the orders sanctioning the trial were effectively illegal. This also means, as per the high court order, GN Saibaba and his co-accused can finally, after years of being locked up, return home to their families...

Barring...

Pandu Narote, who lost his life as an incarcerated UAPA convict less than two months ago.

Pandu Narote's Death

Narote was only 33 years old when he breathed his last on 25 August this year.

An agriculture worker prior to his arrest, he belonged to a scheduled tribe and hailed from a deeply forested area of Eastern Maharashtra's Gadchiroli district.

His death once again raises questions about the health and hygiene condition of prisons and the treatment of ailing inmates.

So how did the 33-year-old die?

Speaking about his meeting with Narote in a government hospital, two days before his demise, his lawyer Akash Sorde said:

"Pandu told me on 23 August that he had been suffering for about two weeks by then. It was only after many requests by him that he was first treated at the prison hospital. He had also requested to be sent outside for further treatment, but they only shifted him to GMC when he started exuding blood in his vomit and urine."

According to Sorde, Narote's family was kept in the dark about his illness for a long spell by the prison authorities. He too only learnt about it from external sources, he said.

Commenting on condition of anonymity, a figure of authority in the prison however refuted the allegations, claimed that Narote was sent for an immediate check-up and regular follow ups. The anonymous authority also said that they followed proper procedure and informed Narote's family immediately upon his admission at GMC.

Meanwhile, criminal law expert Shrey Sherawat told The Quint that any under trial prisoner or convict, suffering from any ailment must be treated immediately at the jail medical facility. He also added:

"If in the opinion of SMO, the concerned jail does not have adequate or specialised facilities to treat a particular ailment, the inmate should immediately be shifted to the nearest government hospital having adequate facilities to treat the inmate."

The Quint also reached out to Human Rights lawyer Mihir Desai, who said:

“The prison authorities should ideally inform the family as soon as a person falls sicks. You don’t have to wait till a person is admitted in a hospital to inform the family. Because the family should know.”

The fact remains that had Narote survived he too would have, in all likelihood, been permitted by the High Court to leave the jail premises, and go home to his wife and his (now-teenage) daughter whom he had not seen since his conviction in 2017.

The very fact that the entire trial which had resulted in his conviction (and years of arrest) has now been declared null and void by a higher court implies that Narote should not have been in jail in the first place.

Those Who 'Messed Up' Should Be Made Liable: Human Rights Lawyer

Commenting in the aftermath of the High Court's judgment, Desai told The Quint:

“Obviously the state has messed up very badly, and it is not enough to say that these people (the other accused) are being released because the authorities have messed up very badly."

"The persons who messed up should be taken to task. Or in the words of the Supreme Court (as employed in the judgment dismissing Zakia Jafri's petition after which activist Teesta Setalvad was arrested), should be in the dock.”

Human Rights Lawyer Mihir Desai

"If Teesta Setalvad can be arrested for making purportedly false allegations, should you not hold the people who granted false sanctions guilty of the same?" Desai asked.

Section 45(1) of the UAPA spells out the conditions that must be met by a court taking cognisance of an offence under chapters III (offences and penalties), IV (punishment for terrorist activities) and VI (terrorist organisations)  of the Act. 

According to the bench, the sanction to prosecute Saibaba was granted by the Maharashtra government only after the trial began, instead of being accorded before.

With regard to his co-accused, the court said that the Directorate of Prosecution’s report to the State Home Department was without reasons, which in turn, is a breach of mandatory provisions (under Section 45(2) of UAPA).

“We are inclined to hold, that every safeguard, however miniscule, legislatively provided to the accused, must be zealously protected”

Nagpur Bench of the Bombay High Court

According to Desai, the person who granted the sanction should be made personally liable, because the sanction was illegal. 

"Whosoever is the person, they must be made personally liable to pay compensation to each person who was convicted in this case and has now been discharged," Desai said.

High Court's Disapproval of Session Court's Remarks

The High Court, in its judgment, also expressed its disapproval of the sessions judge's observation that no leniency can be shown to GN Saibaba, who is suffering from 90% disability, since he is "mentally fit and is a think tank of the banned organisation which by its violent activities has brought industrial and other development in naxal affected areas to grinding halt."

Noting that the sessions judge also observed that imprisonment for life is "not a sufficient punishment for Saibaba" but the "hands of the court are tied" as that was the maximum punishment provided by the statute, the High Court said:

"We do not approve of the unwarranted observations of the learned Sessions Judge, which may have the unintended consequence of rendering the verdict vulnerable to the charge of lack of dispassionate objectivity."

But Problems With UAPA Continue to Loom

"Lack of dispassionate objectivity", however, is not unique to this case.

UAPA-related proceedings are plagued with a lack of dispassionate objectivity. One might even go so far as to say that the entire Act is a manifestation of a lack of dispassionate objectivity, dripping with injustice and swathed in apathy.

Or as articulated by Desai:

“The whole purpose of the Act is to keep people behind bars for a long period without prior trial. Even if the initial purpose of the UAPA was to convict people, that is not what it is being used for now. So you just slap UAPA, ensure that person doesn’t get bail, and It doesn’t matter whether they are convicted or not convicted. The whole idea is to put people behind bars."

The Near Impossibility of Bail under UAPA

You can be held back in jail for years on end if a court just looks at the police version and feels that there are reasonable grounds to believe that the terror-related accusations against you are prima facie true.

Statistically, most UAPA cases result in acquittal. But before that, like Pandu, like GN Saibaba, you would have already spent years in jail. (According to reported Rajya Sabha figures, 97.5% of those arrested between 2016 and 2020 under the UAPA, have been incarcerated for multiple years without a trial in sight).

"It is like preventive detention multiplied 10 times. You don’t have to prove anything. You just keep people behind bars.”

Human Rights lawyer Mihir Desai

Inhuman Treatment & Poor Prison Conditions

And how else can one explain the inhuman treatment meted out to UAPA accused and convicts? We already know that the jails in which they are incarcerated, eyes peeled for the slightest shadow of relief, are teeming with disease and riddled with health and hygiene related inadequacies.

Again there are several disturbing illustrations of this beyond what Narote and Saibaba's well-wishers have shared.

In February 2020, granting bail to Bhima Koregaon accused Varavara Rao, on medical grounds, the Bombay High Court had noted that “sending him back to prison is fraught with risk.” But this came after his health had already deteriorated drastically and he had submitted before the court that there were only three Ayurvedic practitioners and no staff nurses, pharmacists or medical specialists to attend to inmates at the prison hospital in Taloja.

In May, 2021, as the second wave of COVID-19 wreaked devastation across the country, the family and friends of the other accused in the Bhima Koregaon case, who have been lodged in Mumbai’s Taloja and Byculla jail, held a press conference drawing attention to the purportedly dangerous living conditions there. These included overcrowding, the lack of medical care, paucity of clean water, and flimsy access to basic human rights.

According to a report published by Outlook (last updated on 22 August), Mumbai’s Arthur Road Prison has four doctors for over 3800 inmates.

And these are only to name a few.

There's Also Stan Swamy, Altaf Shah, and... Pandu

And finally, how else can one make sense:

Of the death of octogenarian Jesuit priest Stan Swamy, as an incarcerated under-trial in a UAPA case, while his health crumbled and he waited endlessly for just one chance to go home? "My deterioration is more powerful than the small tablets that they give… Whatever happens to me I would like to be with my own," he had told the court.

Of the death of UAPA accused Altaf Ahmad Shah, whose daughter had begged for his release so he can "die a free man” after he was diagnosed with renal cancer? She had also previously (in May 2020) drawn attention to her father's advanced diabetes, hypertension, and other co-morbidities.

Of Pandu Narote's demise less than two months before the high court could have potentially allowed him to walk home?

A retrospective glance at these deaths, however, begs a question: what threat, what danger, what security risk are we rebuffing by keeping people, crippled by ailments, locked up, especially when there's no guarantee that the case against them would even stand the test of law?

But that's perhaps how the UAPA operates. And therefore, regardless of how undesirable it may sound to our courts, a lack of dispassionate objectivity, compounded by apathy that is intrinsic to the Act, will cloak our judicial system as long as this Act, in its present form, exists.

And About Saibaba's Case...

For now, the Supreme Court has listed the Maharashtra government’s plea challenging the high court order discharging GN Saibaba in the UAPA case for hearing on Saturday – merely a day after the high court had discharged him and noted:

Procedural safeguards "legislatively provided", and which are "an integral facet of the due process of law" cannot be sacrificed "at the alter of perceived peril to national security."

(With inputs from Outlook, The Wire and Rohini Roy.)