Judges of the Supreme Court are increasingly being subjected to trenchant, often vicious attacks in respect of orders passed by them. Arguably this trend coincided with the ascent to power of the BJP under Prime Minister Modi.
As forces in the country opposed to the new dispensation, suffered setbacks in the highest court in cases tinged with political hue, the tenor of the attacks on individual judges responsible for the legal setbacks those forces encountered, became venomous.
A discernible pattern of the attacks also emerged: they emanated from a vocal and powerful coterie of successful Supreme Court lawyers, they did not consist of a rational critique of the judgements delivered but were an ad hominem assault on the bench concerned and were invariably mounted either in politically motivated cases but more alarmingly cases with an anti-national flavour involving jihadi or naxal subversion.
The most recent example of the trend is also one of the most audacious.
The protagonist, Kapil Sibal, is a highly celebrated member of the Supreme Court Bar with lustrous political credentials. The occasion was the celebration of his completion of 50 years at the bar organised by his lawyer admirers.
Speaking at the event this worthy lamented the failure of every institution in the country to stand up to the incumbent government.
While there was no ostensible reason proffered as to why “every institution” - media, investigating agencies, the election commission - were government acolytes, the veteran lawyers ire was specifically directed against the judiciary: “The silence of the judiciary is the most vocal part of the Indian system now.”
The immediate provocation was a Saturday hearing of a two-judge bench of the Supreme Court suspending the judgement of the Bombay High Court which in turn had set aside an order of conviction of GN Saibaba and five others for offences under the UAPA and sentences of life and other terms of imprisonment: “Never heard of acquittal being suspended in a special Saturday hearing” thundered the veteran.
Before analysing the extravagant claim of the learned veteran lawyer, the facts of the case before the trial court, the findings of the high court on the basis of which the trial court's order of conviction and sentence were set aside and the Supreme Court intervention and the reasons for the same are pertinent and instructive.
First the facts: GN Saibaba along with five other accused were charged by the State of Maharashtra under the Unlawful Activities Prevention Act (UAPA) for offences concerning Maoist terrorism in particular, inciting violence against the state in Gadchiroli.
The investigation took place between 2013-14 and the court trial started in 2015. After the framing of charges against them and after recording of detailed ocular, documentary and electronic evidence on behalf of the prosecution and accused, the Sessions Court found the accused guilty of hatching a criminal conspiracy the object of which was to wage war against the Government of India.
This process, after the long drawn adversarial process, is what is called a “conviction” which involves the court of law arriving at actual findings against the accused after an elaborate trial.
The High Court in its judgement has observed that the Sessions judge “authored a copious judgement which painstakingly marshals the material on record and concludes that the prosecution has brought home the charge to the hilt.”
All the accused in the present case, filed an appeal before a Division Bench of the Bombay High Court.
The UAPA has a provision which mandates that the investigating agency obtain the previous sanction of the Central government to prosecute the accused without which no court can take cognizance of the offences in the charge sheet.
The sanction was granted in the present case and none of the accused raised an objection either to the existence or the validity of the sanction at any time during the trial.
For the first time before the High Court, a plea was taken by the accused with regard to the validity of the sanction for prosecution granted by the government and in the case of Saibaba that no sanction was granted at all.
As per Section 465(1) of the Code of Criminal Procedure, “no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal... on account of any error or irregularity in any sanction for the prosecution unless in the opinion of that Court a failure of justice has in fact been occasioned thereby.”
Further, Section 465(2) expressly provides that: “In determining whether... any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.”
Despite this statutory position, in the appeal from the conviction by the Sessions Court, the High Court set aside the order of conviction and sentence of all the accused on the ground of invalidity of the sanction order and in the case of Saibaba - want of sanction.
In the specific case of Saibaba, sanction was admittedly obtained after the first witness in the trial had deposed but the witness was recalled after sanction was obtained to ensure that no prejudice was caused to Saibaba. Nor did Saibaba raise the grounds of absence of sanction at the trial stage.
The extraordinary and unusual approach to a conviction under anti-terror laws revealed by the High Court perhaps has no parallel precedent in law.
This situation would have led to terrorists found guilty after an elaborate trial being released, and, therefore, the State of Maharashtra approached the Supreme Court with the utmost expedition.
Given the gravity of the crime, which was the subject matter of the appeal to the Supreme Court, the latter listed and heard the matter the very next day, which was a Saturday.
During the course of the hearing, the bench posed the following pertinent question to counsel for the accused– “Has there been any incident in the history of criminal law where an order of conviction recorded after a detailed trial, has been set aside in appeal on the technical issue of sanction for prosecution in UAPA offences?”
The counsel for the accused fairly conceded that it is a unique question of law that deserves examination and only sought bail for his client Saibaba on medical grounds which the court rejected.
After hearing both the parties, the court framed three important questions of law that were required to be determined in the appeal and set them out in extenso in its order of that day.
The Court also separately considered whether the judgement of the High Court ought to be suspended and after hearing both sides on the issue recorded four detailed reasons as to why the High Court order was liable to be suspended.
The veteran lawyers' portrayal of the Supreme Court order as an unprecedented order of stay of a judgement of acquittal by way of a Saturday hearing is tendentious.
Firstly, the accusation of “Saturday hearing” has no basis as it is a mere coincidence that the order of the High Court was passed on a Friday and had the Supreme Court not heard the matter on the next day - a Saturday - the appeal would have been rendered infructuous. Had it been any other day of the week, the hearing would have taken place on the next designated working day.
Secondly, the allegation that the “acquittal” of GN Saibaba was stayed, is either maliciously false or borne out of manifest ignorance. GN Saibaba and others were not acquitted by the High Court. Acquittal denotes an adjudication by a court on merits that the evidence does not establish the guilt of the accused in the offences charged.
Saibaba and others were released on the ground of invalidity / want of sanction. This was not an acquittal or a finding or innocence of the charges. Even if the issue of sanction is ultimately decided in favour of the accused by the Supreme Court, the accused are still liable for a retrial on a valid sanction being obtained. Indeed the High Court itself in its order recognised as such when it recorded in its conclusions as under:
“(iii) the prosecution did submit that if the appeal is decided not on merits but only on the point of sanction we may grant liberty to the prosecution to obtain proper sanction and try the accused. In view of the well entrenched position of law, that the rule against double jeopardy has no application if the trial is held vitiated due to invalidity or absence of sanction, we see no reason to dilate any further on the said submission.”
If only the veteran lawyer had cared to read the very judgement which he so ardently defended he would perhaps have realised that his denunciation of the Supreme Courts suspension of the High Courts order of “acquittal” was wholly misconceived.
This falsehood premised on the cliche of “personal liberties” or “human rights” is no more than to weaponize those lofty concepts to undermine the majesty of the Courts for the ulterior purpose of pressuring them into being more amenable to causes dear to a powerful legal lobby that seeks to bend the court to its will.
This does not mean that Naxalites or other terror accused do not deserve due process or the mandates of the rule of law.
But what it does mean is that the rule of law itself and those that administer it be protected from the unholy machinations of those who would subvert it for their own ignoble ends.
The naxalite movement in India has inflicted a huge cost on the Indian state. It has undermined the unity and integrity of the country.
The movement seeks to poison the chalice it drinks from by replacing a stable constitutional order with a repressive one through violent means. Its proponents consist of men of high eminence and powerful voices.
These subversive voices can only be checked by a vigilant administration, a justice system that is fair and transparent and one that is manned by men of intellect and character.
As our Prime Minister recently exhorted, “both gun toting and pen wielding naxals must be uprooted.”
On Saturday, the 22nd of October, by its timely intervention a bench of the Supreme Court prevented a miscarriage of justice by urban naxals posing as defenders of our constitutional ideals.
Note: The views expressed are those of the author and do not necessarily reflect the view of Bar & Bench.