Wordplay is a literary technique often used to enhance the impact of writing on readers and usually to mislead. It is generally a part of the repertoire of lawyers, passing in the courtroom as court craft. To the general populace who lack legal understanding of technical terms, this wordplay can often portray half-truths as facts and mislead them, bringing the administration of justice to disrepute.
In criminal law, to “acquit” means to decide in a court of law, after a detailed and elaborate trial on every factual allegation and evidence presented by both sides, that a person is not guilty of the crime alleged against him. Conversely, to “convict” means to decide, in a court of law, after the investigation and presentation of charges against the person and after a detailed trial on all facts alleged and evidence collected by both sides, that a person is guilty of committing a crime.
There can be a third category of decision in a criminal proceeding which leads to a person being released, known as “discharge”, which is a result either of a technical irregularity in the process or the failure to establish any charge against the person after investigation. The exchange of words, or wordplay, between technical discharge and acquittal and the failure to use them correctly in the proper context, can be misleading.
G N Saibaba along with five other accused were charged by the State of Maharashtra under the UAPA for offences concerning Maoist terrorism. The investigation took place between 2013-14 and the court trial started in 2015. After the framing of charges against them and recording of detailed ocular, documentary and electronic evidence on behalf of the prosecution and accused, the sessions court found the accused guilty of the charges mentioned above. 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.
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All the accused in the present case, after this conviction, filed an appeal to the division bench of the high court. For the first time before the HC, a plea was taken by the accused with regard to the sanction for prosecution granted by the government. The UAPA has a provision that requires the prosecution to obtain permission of the government prior to filing of the chargesheet in order to proceed. The sanction was granted in the present case but the accused raised a technicality regarding the same for the first time after conviction. The question of sanction under the UAPA is different from the protection of sanction provided to public servants in the anti-corruption laws. While the law seeks to protect public servants over actions during the discharge of their official duties, the law does not seek to create the same degree of protection for persons accused of offences concerning terrorism. In either case, the law states that unless there is a failure of justice, a technicality can never override an order of conviction passed after detailed examination of facts and an elaborate trial.
Despite this settled position, in appeal from the conviction by the sessions court, Saibaba and the other accused were let off by the HC on a mere technicality of sanction. This extraordinary and unusual approach to anti-terror laws shown by the HC, perhaps, has no parallel precedent in law. This situation would have led to terrorists found guilty after an elaborate trial being released. Therefore, Maharashtra approached the Supreme Court and the matter was taken up just the next day which is usual and required under such circumstances. The SC posed a simple question to the 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 to address the Court on the issue of Saibaba’s medical condition.
Considering the overall situation, the Court was not inclined to provide any special treatment to the accused since his earlier pleas on similar grounds had been rejected. It suspended the operation of the order of the High Court and thereby prevented release of these Maoists on a mere technicality.
Some sections of the media and certain vested interests have portrayed this order as if the Court has stayed an order of “acquittal” by way of a Saturday hearing. First, the accusation of “Saturday hearing” is no basis as it is a mere coincidence: The order of the HC was passed on a Friday and the SC could not have waited for a hearing and risked making the matter infructuous. Had it been any other day of the week, the hearing would have taken place on the next designated working day. More importantly, the charge that the “acquittal” of Saibaba was stayed is dangerously delusive and misleading. This deception is caused by the conveniently cunning use of the word “acquittal”, giving the impression that the order was anti-liberal or toed the government line without reasons.
This falsehood, premised on the preening catchphrase of “personal liberties” or “human rights”, is often used by critics to berate the Court mostly to bring pressure on the judiciary. The Court must rise above this perception threat as liberties have no meaning if exercised at the expense of liberties of the law-abiding public at large. This does not mean that terror accused or Naxalites do not deserve to be tried in accordance with the rule of law or in accordance with basic protections inbuilt in criminal law. What it means is such accused do not deserve any special treatment merely because some sections of the media and the intelligentsia have a soft corner for the veils of activism that the Maoists or Naxals often wear.
The charges against Saibaba and the other accused are not of mere membership or interaction with banned terrorist organisations; they have been factually found by the competent court to have been working, supporting and conspiring in activities of terrorism of the Naxal variety. A fatuous technicality is inapplicable after the conviction on merits.
One must not forget that terrorism or naxalism has an impact not just on national integrity but also on society. It preys on the helplessness of the young and poor, often giving them a “choice” between enrolment with Naxals or death. It is an ideology that has taken more Indian lives in the past two decades than any other form of terrorism (including the one from across the border). It seeks to poison the chalice it drinks from by replacing the constitutional order created for establishing a free, liberal and democratic India that its apologists want. It yearns for a “revolution” to establish its own deluded version of a communist state and seeks to subvert the protections and patience of the liberal world while risking the liberties of the larger population. If one goes by the reports, they have infiltrated all walks of life and “urban Naxal” is not just a rhetorical slur but a national security reality. Their sympathisers are, unfortunately, present in every institution.
The establishment of any constitutional order through a social contract requires the monopolisation of law and order in criminal prosecution by the state. A country which fails in maintaining law and order and efficient criminal prosecution, especially concerning organisations and persons seeking to overthrow the constitutional order of the country itself, not only fails its citizens but also breaches a sovereign constitutional promise.
The intervention of the Supreme Court, stalling the absurdity resulting from the High Court order, was a much welcome and a timely step. The release of Naxals on mere technicalities would have not only posed a significant risk to society but would have also enthused Naxals across the country. The citizens of the country have their own competing rights to personal liberties which cannot be jeopardised for some imaginary certificate from the self-appointed keepers of the conscience of the Court. The Supreme Court prevented a national security calamity: It would have been in dereliction of its constitutional obligation had it not done the same. The sentinel on the qui vive made a timely intervention.
The writer, a Rajya Sabha MP, is a senior lawyer