My freedom is your freedom: The institutional murder of Prof. Saibaba
By PUCL Bulletin Editorial Board
The death of Prof G.N Saibaba on 12 October, 2024 sparked a deep sadness that a voice of struggle and resilience had been stilled; anger and outrage burst at the injustice of what was in essence an `institutional murder’.
Prof. Saibaba died at the relatively young age of 57, a victim of the callousness of the state, which had instead of protecting life, in his own words ‘become the anarchy itself’. He joins the ranks of the by now innumerable victims of a ‘lawless law’ called the Unlawful Activities Prevention Act wielded with impunity by a state wreaking terror on anyone challenging it. He was also the victim of the criminal failure of the prison authorities to provide timely and adequate medical care, which resulted in the progressive deterioration of the health of every organ of his body, culminating in his ultimate death.
Prof Saibaba was arrested in 2014 and spent over eight years in jail convicted for UAPA offences of being a member of a terrorist gang, giving support to a terrorist organisation and conspiracy to commit a terrorist act. Twice, once on 14.10.2022 and later on 05.03.2024, the Bombay HC acquitted him of all charges under UAPA, raising questions about the unjust incarceration for close to 10 years for an offence that was not committed!
The role of the judiciary
The first and perhaps most consequential failure of the judiciary was the intemperate judgment of the Sessions Court at Gadchiroli in 2017. The Sessions Court while convicting Saibaba and others had egregiously observed that ‘imprisonment for life is not a sufficient punishment to accused 6 – G.N. Saibaba and the hands of the Court are tied in view of the fact that the imprisonment for life is the maximum punishment statutorily provided’.
After five years of imprisonment had rolled by in which Saibaba’s health further deteriorated due to the malign neglect of the state, in 2022, the Bombay High Court, acquitted all the accused. The foundation of the decision of the Bombay High Court was that the sanction to prosecute under the UAPA must be based upon an independent review of evidence as mandated by Section 45(2) and this was not complied with.
However, this remarkable victory did not even last forty eight hours. The Supreme Court, in an extraordinary order suspended the well-reasoned judgment of the Bombay High Court. The then CJI, UU Lalit, permitted a hearing before a specially constituted Bench of Justices M.R. Shah and Bela Trivedi, on a non-working day, Saturday, 15th October, 2022. This was an extraordinary deployment of the power of the Supreme Court to sit on a holiday, to deny a person his liberty as per the judicial process, after he was properly acquitted.
The order of the Supreme Court ensured that a man who should have rightly been released in 2022 had to suffer imprisonment till March, 2024. What was also troubling was that despite Saibaba’s lawyers arguing for medical bail in the interim, courts refused to grant him bail. The denial of medical bail by all courts in the judicial hierarchy, in spite of ample evidence about the deterioration of Saibaba’s health undoubtedly put him on the path to his ultimate demise. The decision of the Supreme Court put the final seal of imprimatur on this unconscionable approach to the right to life of a man who was suffering from 90% disability.
On 5th March, 2024, 18 months thereafter, another bench of the Bombay High Court acquitted him, this time on both procedural and substantive grounds. This Bench also reiterated the procedural point that sanction must be based on an ‘independent review of the entire evidence’. Hence there was non-compliance with the provisions of the UAPA itself and a ‘trial held despite violation of mandatory provisions of law itself amounts to failure of justice.’
The High Court based its decision on the fact that the electronic devices which constituted the bulk of the case against the accused were not ‘secured at all’. The hash value was not noted, contents which were taken in the panchnama were not mirrored, and the unique identification number of the hard disk and electronic gadgets seized were not recorded in the panchnama. There is non-compliance of Sections 43-A and 43-B of the UAPA pertaining to arrest, search and seizure. This is again one of the reasons for acquittal.
More damning was the Court’s conclusion that there is no evidence as to ‘any incident, attack, act of violence’ regarding ‘a terrorist act’ or any connection of the accused to such act either ‘by participating in its preparation or its direction or in any manner providing support to its commission.’ It also notes that, merely because ‘a citizen downloads this material or even sympathizes with the philosophy, [Naxalite or Communist], would itself not be an offence unless there is specific evidence led by the prosecution to connect an active role shown by the accused with particular incidents of violence and terrorism.’
Prof Saibaba on his acquittal held a moving press conference where he thanked the media for not falling prey to the narrative of the prosecution as well as to his lawyers, who were responsible for securing an acquittal twice under very difficult circumstances.
Jail is incompatible with the right to life
Prof Saibaba in his press conference poignantly pointed out that when he entered prison he was suffering from polio, but when he exited prison, as he put it, ‘each and every organ is failing me’. His heart was functioning at 55% capacity; he was subject to many other ailments including stones in his gall bladder and acute pancreatitis.
What caused Prof Saibaba’s death is undoubtedly the prison conditions he was forced to suffer as a person with disability. The harsh prison conditions caused progressive deterioration in Saibaba’s health resulting in violation of rights to health, dignity and finally to life itself. The Indian Constitution does not contemplate judicial silence in the face of the progressive deterioration in a prisoner’s health. The Supreme Court has ruled that ‘fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration.’
Prof Saibaba’s time in jail saw the violation of the core dimension of the right to life, namely the right to live with dignity. As Saibaba put it, going to the toilet meant he had to be lifted and taken there as the toilet was not accessible to a person on a wheel chair. If he had to go to prison mulakat, again he had to be carried. The jail authorities failed to comply with the core principle of disability law – the principle of reasonable accommodation and ensure wheelchair access to prisoners with disabilities to all facilities they are entitled to.
Prof Saibaba is not the only victim of prison injustices. Saibaba’s co-accused, Pandu Narote, a young Adivasi man died of swine flu caused by criminal negligence of the prison authorities in not providing treatment. Fr. Stan Swamy also died due to the neglect of the right to health in Taloja prison. As Fr Stan put it, ‘When I came to Taloja, whole systems of my body were very functional, but during these eight months there has been a steady but slow regression of whatever my body functions were’. Poignantly he foretold his eventual death:, “if this were to go on,” he would “possibly die very shortly.”
It is patently unconstitutional that the Courts did not consider home arrest which would have been a ‘reasonable accommodation’ for a person with 90% disability. The fact that this was not considered a suitable option only indicates the callous disregard of the state for the life of Prof Saibaba.
Undoubtedly, these deaths are the tip of an iceberg, as Indian prisons do not have adequate medical facilities to cope with seemingly routine illnesses. They are entirely ill equipped to deal with prisoners with disability like Prof Saibaba or older prisoners with multiple health complications like Fr. Stan Swamy.
Justice for Prof Saibaba
In the context of institutional callousness and judicial failures – including wrongful arrest, denial of bail, ill treatment in prison and lack of meaningful intervention by the Courts – what does justice for Prof. Saibaba mean? Justice should include both reparation and the guarantee of non-recurrence.
Reparation for Saibaba must take the form of an acknowledgement and apology by the government of the wrongness of the decision to arrest him and to deny adequate standard of health care to a disabled person in prison, resulting in his death. It should also include compensation provided to his wife Ms. Vasantha for the trauma and hardship she was forced to undergo. It should perforce include punishment of all those who contributed to the death of Saibaba, through their actions and inactions including police officers and jail authorities.
The principle of non-recurrence would mean that what happened to Prof Saibaba should not happen to anyone else. This would necessary imply that the arbitrary and unconstitutional law which is the UAPA must be repealed to prevent further such miscarriages of justice. Non-recurrence would also mean that prison authorities must ensure that prisons comply with the constitutional mandate of ensuring that every prisoners right to health, dignity and life is complied with. The mandate of disability law for `reasonable accommodation’ must be implemented in all prisons. The `repeal UAPA campaign’ should demand that the state respect the right of all prisoners to health, dignity and life itself. The campaign should also demand that there be clear guidelines laid down by the state which should ensure adequate medical care for all prisoners.
Spontaneously condolence memorial meetings for Prof Saibaba have been conducted in Uttar Pradesh, Maharashtra, Delhi, Telangana, Tamil Nadu and Karnataka giving voice to the collective pain and anguish which people have felt. Memorialising Saibaba’s life should be about each of us cultivating a public conscience. Remembering his life should be about enlarging our hearts capacity to feel the pain of the others and acting on that feeling. As Saibaba himself put it ‘I hope none of you should feel sympathetic to my condition. I don’t believe in sympathy, I only believe in solidarity. I intended to tell you my story only because I believe that it is also your story. Also because I believe my freedom is your freedom.’