Prosecution as Persecution

The Jamia Teachers Solidarity Association brought out a report titled “Framed, Damned and Acquitted” in 2015. It compiled 16 high profile cases of acquittal, in which the Supreme Court reprimanded the police for systematic and rampant fabrication of evidence. Needless to say in all these cases, the accused persons languish in prisons for many years. The report rightly pointed out that cases are presented in courts not backed by evidence but mostly by the belief that the court will be seduced by the hysteria of national security. Is the fate of G N Saibaba, whose bail was rejected by the Nagpur Bench of the Bombay High Court on 23 December 2015, going to be any different?

The verdicts that acquit the accused after long incarcerations often point out the “inefficiency” of prosecutions. But inefficiency of the police is an understatement. This purges the judiciary of its complicity in incarcerating innocents for an indefinite period. In fact, a lot of planning seems to be behind the concoction of evidences, especially against those accused of crimes against national security. In none of these cases any representative of state is ever made accountable. Judiciary is more often not willing to accept the version of prosecution in these cases. The 16 cases of acquittal are not rare cases in which evidences are concocted efficiently. The process of prosecution itself is designed as persecution by the state. It requires enormous ideological affinity with the dominant political thought of our times not to recognise these trends. This is the context in which the case of G N Saibaba, a professor at Delhi University and human rights activist, has to be seen. 

The court describes the material against Saibaba as “collected.” The defense has been contesting this claim and pointing out the high handedness of the police in his arrest and confiscation of evidence. The authenticity of material gathered is being questioned. The computers of Saibaba were confiscated without conducting a panchanama, and things were taken away from him without a list or receipt. The court should have appreciated the legal issues raised. But it maintained total silence about the process of collecting the evidence. The bench openly defended all organs of the state. But they have to earn their own share of credibility and it is hardly the business of independent judiciary to bat on their behalf.

The primary accusation against Saibaba is that he used his intellectual ability for anti-national activities. The fact is that the sense of personal security in general, and national security in particular,  are deeply shrouded in competitive politics in all societies. What constitutes anti-national activities has always been contested by intellectuals but accusing them of punishable crime is an attempt to silence the debate.  

The court thinks that creating public opinion and defending the rights of the accused deserves contempt of court charge. It felt offended and construed questioning the justness of order that rejected the bail since it was perceived to have questioned the sanctity of judiciary. In the same breadth it displayed its contempt for human rights sarcastically describing the petitioner before Bombay High Court, Purnima Upadyaya and author Arundhati Roy as “so called human rights champions.” It may have forgotten the role of public intellectuals in the field of judicial activism.  In fact, judiciary has never been immune to public opinion. A healthy public debate always forces public institutions to take a hard look at the alternative facts and ways of interpretations. The landmark judgments by the Indian judiciary in public interest litigations are inspired by the reports of social activists. The experience of the women’s movement too is that as long as there was vibrant public debate on the layers of gendered violence that women are subjected to, even the most toothless laws were applied by the judiciary to defend their rights. But in the absence of such intellectually vibrant debates, even the most powerful laws could not come to their rescue as the judiciary in general is inclined to drown itself in technicalities. Of course when it comes to the issues of national security, our sense of loyalty overrides our faculties. Judiciary, too, is susceptible to this process.  The sanctity of judicial orders should flow from the philosophy of justice they are girded in and cannot be protected with contempt orders.

As per this verdict, protesting against the arrest of Maoist leaders and demanding their immediate release is equal to sharing the ideology of the banned organisation. Those who believe in the constitution and perceive the arrest of Maoist leaders as unjust also openly demand their release. Does that make them Maoists? 

The court accuses the author of scandalising and questioning the credibility of the higher judiciary. At least half a dozen retired chief justices of Supreme Court can also be charged with the same accusation as they spoke about the levels of corruption in judiciary, unfortunately only at the time of their retirements.

The court feels that instead of challenging the order before the larger bench, the author wrongly chose to write. But the authors are different kind of advocates. They do not challenge the powerful in judiciary. They tease the executive in the court of ethics. That is not interfering in dispensing justice but challenging injustice. The ideas of authors cannot be regimented. The freedom of expression is meaningless if alternative narratives of truth are throttled. They do not need to be eyewitnesses to express moral anger against the perceived injustice.  

And in any case being judgmental is not just the monopoly of the judiciary. While anybody could be players of truth, the writers as the teasers of the truth do irritate those who exercise power. British writer of Indian origin, Hanif Kureishi aptly described the writers as wreckers of fatuous utopias, who unmask the reality and leave the bleached bones. They leave society’s sense of immaturity bruised. 

At this juncture we have to ask whether rational thinking is the monopoly of the powerful and whether citizens should surrender their capacity to think what is just and unjust to manipulators of facts. Such dangers are not unfounded and therefore the independence of civil society and media needs to be fiercely defended. Where life and liberty of citizens are valued more than the sanctity of social institutions, the judiciary too is expected to be independent of the ideology of the powerful ruling class.