New Delhi: The Gadchiroli I.G. claims that it was the court’s issuance of a non-bailable warrant in FIR case number 3017/2013 (Aheri PS, Dist. Gadchiroli) against Prof. G.N. Saibaba that led them to arrest him. Did the court also order that a person who suffers 90 per cent disability be blindfolded and abducted? That no arrest warrant be served? That his wife should not even be officially informed of her husband’s arrest?
Following the arrest of JNU student Hemant Mishra and journalist Prashant Rahi in the above-mentioned FIR, Prof. Saibaba’s home has been raided and searched several times over. The police claim that incriminating material has been seized from Prof. Saibaba’s home. The so-called recovery of ‘incriminating material’ follows the set pattern of all cases registered under the draconian Unlawful Activities Prevention Act (UAPA), where participation in the activities of a banned organization is sought to be proved through seizure of literature: Marxist literature in cases where Maoism is alleged; Urdu/ Arabic literature where links with SIMI are alleged. A large number of UAPA cases are based only on seizure of literature rather than evidence of participation in any violent act.
But even in anti-terror laws, which allow the criminalization and outlawing of ideas, opinions and organizations according to the state’s subjective biases, a plethora of Supreme Court judgments have advised greater caution.
In the Arup Bhuyan vs State of Assam (2011), the Supreme Court held:
“In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in the light of our observations made above. Hence, mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.”
Similarly, in Sri Indra Das vs State Of Assam (2011), the Supreme Court said:
“It has been submitted by the learned counsel for the Government before the TADA Court that under many laws mere membership of an organization is illegal e.g. Section 3(5) of Terrorists and Disruptive Activities, 1989, Section 10 of the Unlawful Activities (Prevention) Act 1967, etc. In our opinion these statutory provisions cannot be read in isolation, but have to be read in consonance with the Fundamental Rights guaranteed by our Constitution.
The Constitution is the highest law of the land and no statute can violate it. If there is a statute which appears to violate it we can either declare it unconstitutional or we can read it down to make it constitutional. The first attempt of the Court should be try to sustain the validity of the statute by reading it down.”
It is now learnt that the patently illegal arrest of prof. Saibaba has been compounded by gross violations of his basic human rights in judicial custody. He is being lodged in the high security ward of Nagpur Central Jail in solitary confinement. Given the disabilities he suffers, Prof. G.N. Saibaba requires special facilities and medical attention, which are being denied to him. In fact this treatment militates against the Supreme Court judgement of Sunil Batra vs Delhi Administration (1979), which condemned solitary confinement and denial of necessary amenities as a violation of Article 21.
We quote: “(ii) Inflictions may take many protean forms, apart from physical assaults. Pushing the prisoner into a solitary cell, denial of a necessary amenity, and more dreadful sometimes, transfer to a distant prison where visits or society of friends or relatives may be snapped, allotment of degrading labour, assignment to a desperate or tough gang and the like, may be punitive in effect. Every such affliction or abridgement is an infraction of liberty or life in its wider sense and cannot be sustained unless Art. 21 is satisfied. There must be a corrective legal procedure, fair and reasonable and effective. Such infraction will be arbitrary under Article 14, if it is dependent on unguided discretion, unreasonable under Art. 19 if it is irremediable and unappealable and unfair under Art. 21 if it violates natural justice. Some prisoners, for their own safety, may desire segregation. In such cases, written consent and immediate report to higher authority are the least, if abuse is to be tabooed.”
What Prof. Saibaba is being subjected to is gross abuse. JTSA condemns it in no uncertain terms and demands that Prof. Saibaba be released without delay. His incarceration is all the more puzzling, as the Gadhchiroli police have not even sought his custody for questioning.
Released by Jamia Teachers’ Solidarity Association (JTSA) on 15th May 2014.