Legally Speaking | Twists and turns of GN Saibaba’s legal battle - Hindustan Times
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Legally Speaking | Twists and turns of GN Saibaba’s legal battle

Mar 15, 2024 08:51 PM IST

The professor was released last week after the Bombay HC found no concrete evidence. HT speaks to his lawyer, Nihalsing Rathod, on what it took to get justice

GN Saibaba, a professor of English Literature at Delhi University was arrested on May 9, 2014, by the Maharashtra police on charges of having Maoist links. A decade later, he was acquitted on March 5 by the Bombay high court’s Nagpur bench. The Supreme Court refused to grant a stay and said the HC’s order was well reasoned. When he was finally released from prison, Saibaba thanked his legal team for its persistence.

GN Saibaba, who suffers from 90% disability, contracted Covid 19 twice and even caught swine flu, which impacted his health adversely. (HT file photo) PREMIUM
GN Saibaba, who suffers from 90% disability, contracted Covid 19 twice and even caught swine flu, which impacted his health adversely. (HT file photo)

Reflecting on the judicial process at a press conference soon after his release, Saibaba said: “There was no relief even after a court [had previously] discharged me. It was like Sita’s agni pariksha (trial by fire).”

For Saibaba’s legal team, the academic’s decade-long incarceration posed several unforeseen challenges, like advocate Surendra Gadling’s arrest in 2018 and the health troubles that Saibaba faced during the Covid-19 pandemic in prison. Saibaba, who suffers from 90% disability, contracted Covid-19 twice and even caught swine flu, which impacted his health adversely.

Gadling was arrested shortly after he had filed the appeal before the Bombay high court (HC)’s Nagpur bench, challenging the trial court’s conviction of his client. With his arrest, the lead counsel of Saibaba’s defence team was gone, which resulted in the formation of a quick legal team comprising Nihalsing B Rathod, Pradip Mandhyan, Barun Kumar, Harshal Lingayat and Akash Sorte to argue the appeal.

Rathod, a junior of Gadling, had assisted during the trial but became consistently involved after his senior’s arrest. After taking the case up, he was confronted by people holding placards calling him a “Maoist sympathiser”.

“Representing a murderer does not make you a murderer; representing a rapist does not make you a rapist. Then why is representing someone charged with Maoist links seen as any different?” he asked.

Last week, the Bombay HC stated something similar when it ordered Saibaba’s release.

Merely accessing content related to Communist or Maoist ideologies was not inherently illegal unless there was concrete evidence linking the accused to specific acts of violence or terrorism, the bench said.

However, that legal understanding wasn’t always put into practice. In 2019, Rathod realised that international WhatsApp calls his phone was receiving since 2018 were due to the Pegasus spyware. The software, used to spy on several members of political parties, and civil society including journalists and lawyers, was also surreptitiously installed in Rathod’s.

Canada-based Citizen Lab and Amnesty International put out a report in June 2020 detailing an operation that used email-delivered links to infect computers and devices of at least nine human rights activists with commercially available spyware in 2019. Among the targets were lawyers representing activists arrested over the Bhima Koregaon case, some of whom were subject to attacks through the Pegasus spyware that was delivered through WhatsApp. Rathod was one of the targets identified. “Between January and October 2019, each of the targets was sent spearphishing emails containing malicious links that, if opened, would have installed NetWire, a commercially available spyware,” they said in the blog post.

Fighting the legal case against Saibaba was exhausting, Rathod said. What the legal team lacked in experience had to be supplemented with hard work and rigour. As a result, his other cases suffered and several clients got annoyed, he said. One of the toughest challenges Rathod’s team faced was the lack of resources. Litigation involves the arduous process of filing legal documents, securing hundreds of copies, not to mention making decisions on which senior lawyer was to be approached for which client, preparing briefs for them, and managing the dates of the appeal. The voluminous record in this case did not make any of this easy. None of the lawyers in Rathod’s team charged for their work; all, including Rathod, worked pro bono. Often, charges for photocopying and filing came out of their own pockets.

“There were times when things seemed hopeless. But then knowing we were fighting for people who had dedicated their life to uplift society and were trying to uphold the rule of law kept us going,” Rathod noted.

Twists and turns in the legal case

Initially, the team planned on securing bail for Saibaba on medical grounds, but the HC rejected their plea in 2019 and found the state-provided medical facilities sufficient. The next setback came in 2020 when the HC refused Saibaba temporary bail to visit his ailing mother. His mother died four days after this order. Just as the team was gearing up to argue the appeal, the Covid-19 pandemic struck and led to an upheaval in the legal system. As all constitutional courts moved to conduct virtual hearings, bulky documentation made arguments difficult.

Finally, on September 12, 2022, the Nagpur bench of the Bombay HC commenced hearing the appeal on a day-to-day basis. It reserved orders on September 29, 2022. The legal team worked on this case for months preceding the hearing in preparation. Rathod recounted how the daily hearings would often go on till late evening, leaving time for nothing else.

The Unlawful Activities (Prevention) Act (UAPA), which Saibaba was charged with, mandates a competent authority to independently analyse the evidence collected, and grant or reject sanctions to prosecute. For Saibaba, the trial court had taken cognisance of the charges even before a sanction was granted.

Accordingly, on October 13, 2022, the Bombay HC ruled the trial court’s verdict against Saibaba to be null and void and ordered his release. Rathod recounted that while the order was sound on jurisprudence, it allowed the state to challenge the order on grounds that the entire appeal was decided only on the question of sanction without going into the merits of the evidence. Needless to say, the state moved the Supreme Court and succeeded in securing a hearing on October 15, a Saturday. A special bench was swiftly constituted to hear the matter on the Diwali weekend holiday which, on the same day, suspended the high court’s order stating that a lack of analysis on merits was a fit ground to intervene. The apex court also refused to grant bail to Saibaba pending disposal of the matter.

Once again, his legal team was in a quandary: Argue against the suspension of the HC order or consent to having the matter remitted? After much deliberation, they decided to consent to the case being sent back to the HC with all issues being left open. On April 19, 2023, the case was back in the high court.

Though the case was argued at length previously, it was prepared afresh, and each document was read and re-read, Rathod said. This time around, the focus was on dealing with the merits of the case, so the evidence was analysed in depth. Senior advocate SP Dharmadhikari appeared for Saibaba. Finally on March 5, 2024, the HC in a detailed judgement acquitted all the accused. Not only was the sanction invalid — but the court also observed that there was no evidence to link any of the accused to the crimes they were charged with.

While fighting this case, Rathod read the Statement and Objects of the Unlawful Activities (Prevention) Act and the debates in Parliament. The UAPA was passed not only to deal with terrorism but to prevent gross human rights abuses caused by previous legislations like TADA and POTA, he said. But, stringent procedural safeguards put in place in the legislation, were not taken seriously.

“The state prepares bulky chargesheets running into 15,000 pages, how is the sanctioning authority supposed to go through it in seven days? The sanctioning authority is often from the home department and the likelihood of them being independent is low. The state is also under pressure to showcase a tough stance on terrorism and in the process, sanctions are granted not on merits but for political reasons. The Act contemplates an independent report before issuing the sanction but we never get to see the report. All we are given is a one-page order granting sanction. Ideally, sanction and the validity should be looked at first, but the court waits till the end of the trial and goes into the issue only after the sanctioning authority has been examined," Rathod added.

Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.

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