Life To Saibaba, 4 Others: A New Low In Judicial Propriety

Judicial propriety hit a new low with the sentencing to life imprisonment of five persons – Mahesh K Tirki, Pandu P Narote, Hem K Misrha, Prashant Rahi and GN Saibaba, and to 10 years imprisonment of Vijay N Tirki, by the Gadchiroli Sessions Court in Maharashtra on March 7 this year.

The 827-page judgment is both bizarre and extremely disquieting. After perusing it we wonder whether the judge was ‘far more executive minded than the executive itself’.  HRF condemns the imposition of such a harsh punishment for acts construed as offences under the highly debatable Sections 13,18, 20, 38, 39 of the Unlawful Activities (Prevention) Act, 1967 read with that other equally dubious statute – Section 120-B of the Indian Penal Code, 1860. 

Human rights organisations have been consistently demanding repeal of the UAPA and Section 120-B, IPC on the grounds that they disrespect fundamental political freedoms guaranteed under the Constitution. We have pointed out time and again that these statutes outlaw ideologies and criminalise political belief and thought. Successive governments have paid no heed and have gone on to introduce even more undemocratic provisions through a series of amendments to UAPA.  The amendment to UAPA introduced in 2012 is a replica and a replacement of the Prevention of Terrorism Act, 2002 (POTA).  The ambiguous definition of ‘terrorist’ contained in POTA was reintroduced in UAPA. The amended UAPA criminalisesfreedom to form an association and affords unbridled discretionary powers to the investigating officers leaving much room for misuse. This is a statute tailor-made for abuse. It is not just obnoxious and objectionable in principle, but evidence points to its abuse, among others, against politics that is inconvenient to the establishment.

It needs to be borne in mind that the six were not charged and convicted for committing acts of violence. They were charged and convicted for purportedly being members of and being associated with the outlawed Communist Party of India (Maoist), for being in possession of literature of that proscribed organisation and for providing financial assistance to it. HRF is in principle against the banning of a political party or organization. Various statutes invoked to ban parties or organisations are basically political instruments camouflaged as penal law. What they ban is not violence – which has been proscribed ever since the birth of the State in history – but social sympathy and political like-mindedness with the view point of the naxalites. Such an approach is unacceptable in a democracy.

Our rulers are fond of saying that all those who oppose undemocratic laws like UAPA are supporters of terrorism. We refuse to be cowed down by this tactic of silencing critics with threats. Opposition to unjust laws does not mean support for violence and crime. A law, like the UAPA, that has lost the sense of distinction between justice and injustice should find no place in a democracy. It is no longer possible to deny that behind the political militancy that is called Naxalite terrorism there are deep-rooted social and economic problems. It is foolish to say that proclamation of this truth is the same as support for terrorism. Governments that do not have the patience and the will to identify and address the problems invariably try to meet them with cruel laws. Consequently, the rights of the people, impartiality of the judicial system and democratic political culture are the casualties. A judicial system that does not give the accused the aid of principles of natural justice is no judicial system. A criminal law that calls freedom of expression a crime is no criminal law. It is because UAPA and 120-B IPC exhibit both these defects that wecall it a blot on civilisation.

This judgment is bad in law on several counts.  In convicting the six, the judge of Gadchiroli Court relied upon untrustworthy evidence. Pertinently, there were hardly any independent witnesses.  It was a virtual beeline of police witnesses, stock witnesses and tutored ones which is hardly convincing enough to convict a person, much less for life. The judge relied upon documentary evidence consisting of material saved in electronic gadgets like scandisk memory cards, mobiles, pen drive, CDs, hard disks and a few pamphlets which were allegedly seized from the accused. Their contents were anything but incriminatory. Several doubts were raised by the defense counsel about the modus operandi of the seizures that were not answered properly in the judgment. There was heavy reliance upon confessional statements of Accused No. 1 and 2 which they later retracted. In fact, the two were vulnerable adivasis, compelled to be witnesses against their own cause.

HRF hopes that the appellate court would reverse the judgment. We call upon all those who cherish the rule of law and democracy to seek repeal of the draconian UAPA and Section 120-B, IPC.

14.03.2017
Hyderabad