Judiciary must ensure that fundamental rights are closely guarded: Interview with G.N. Saibaba

Professor Saibaba speaks to SCO about how the failures of the judiciary is reflected in prisons

Last week, G.N. Saibaba, former Delhi University professor, poet and human-rights activist, was released from the Nagpur Central Jail, after being incarcerated for about 10 years, both as an undertrial and as a convict. 

In May 2014, Professor Saibaba was arrested under charges of conspiracy related to terrorism offences under the draconian Unlawful Activities Prevention Act, 1967. Over the years, several courts of the country routinely rejected his requests for emergency and medical bail. Professor Saibaba, who has 90 percent disability, has suffered this time in prison under serious health complications, including an arm injury that came about due to the police’s handling during his arrest. Apart from this, under solitary confinement, the professor has also suffered from rheumatism, hypertension, diabetes and cardiac complications. 

The 2024 acquittal Order delivered by a Division Bench of Justices Vinay Joshi and Valmiki S.A. Menezes categorically noted that the charge of “conspiracy” against Saibaba under the UAPA could not be made out. The Bench noted that there was no material evidence to establish a “preparatory act,” “besides vague allegations that they have conspired to wage war against the Government.”

The judgement came after the Supreme Court’s infamous Saturday hearing in October 2022, listed by former Chief Justice U.U. Lalit for an unusual weekend hearing to stay an acquittal order. At that time, a Division Bench of Justices Bela M. Trivedi and M.R. Shah who heard the case had stayed Saibaba’s release, noting during the hearing that the root of terrorism offences was the “brain”. 16 months later, on 11 March 2024, the Supreme Court refused to stay the release of Saibaba observing that the High Court’s acquittal judgement was “very well reasoned.”

Two days after his release, Professor Saibaba sat down with the Supreme Court Observer to discuss his personal and professional aspirations for the times ahead, his thoughts on the complicity of courts and the criminal justice system in the oppression of marginalised communities, his observations on life in the Nagpur central jail and prison reforms, and the Supreme Court’s responsibilities as a regulatory body to effectuate the much needed reforms.

The transcript has been edited for clarity.

You have, at various times, talked about your deteriorating physical health. How is your health currently and what are your main concerns regarding your health?

I have been suffering. I have been suffering for several several months now. I am in a very very bad condition, there are several complications that I’m going through. I am actually heading out to the hospital in some time.

When you received the first acquittal order, in October 2022, the Supreme Court put together a special Saturday hearing that ended up setting aside your release. How do you reflect upon the happenings of that weekend in October?

It’s still too heavy for me to talk about that. I am still recovering from that grief, from that heaviness. I don’t think I am ready to talk about it yet.

What do you look forward to most right now? What are you thinking about the months ahead, and what will be a priority for you?

You see, all my life, I have been a teacher, an educationist. I would love to further work in this field. I would love to teach and teach. Apart from this, I want to continue my work with the most downtrodden people. I want to work for the most backward communities. The fundamental thing to understand is that backward communities require education to gain that mobility. For that, they need access to quality education—not just education, but quality education. 

If you look at the current state of the education system, you will see that government schools and colleges are being left out for the SC, ST and OBC students. All the private and central educational institutions are for the elite populations of the country. Dalit and Adivasi students don’t have access to these institutions, these liberal universities, and they are constantly discriminated against in these spaces.  

This needs to change. The Dalit and Adivasi students are being pushed into government schools. The shiny corporate universities and central universities are for the rich. As a result, students from the marginalised communities are suffering. 

For Dalit and Adivasi families, they understand that education is the only way by which their situation will change. But they are only given the poorest quality of education, or even if they get education, they are constantly excluded. So, access to quality education for the most backward classes, and ensuring that marginalised sections have quality education—that is what I hope to begin working towards.

What, if any, are the other issues that you want to work on?

For more than eight and a half years, I saw the suffering—not just of myself, but all the people in that prison [Nagpur Central Jail]. Prisons reflect how timely justice is completely missing. As a result, the fundamental rights guaranteed under the Constitution are violated. Unless you have fundamental rights guaranteed, you cannot move towards democratic rights.

I fundamentally believe that the judiciary must ensure that fundamental rights are closely guarded so that democratic rights can be protected. Human beings cannot be human beings without democratic rights. There should be reforms within the law and the judiciary to ensure that people get democratic rights. 

People can raise their voices for their needs in the sphere of democratic rights. For example, if people say that we need to discuss and debate, they should have the freedom to do so within their spaces. The courts have to protect them. In this area I would like the judiciary to work. I would like to write books in this regard as well.

You spoke about how your experiences in Nagpur shaped the way you now think about the injustices of the prison system. What, according to you, are the issues plaguing legal institutions and courts that have led to the structural breakdown of the prison systems?

The prisons are filled with undertrials. In Nagpur, where I was imprisoned, 80 percent of the prisoners were arrested for the pettiest cases. Some of them have been languishing in jail for five, seven or eight years without trial. Most of them are from Adivasi and Dalit communities. Finally, by the time they get the judgement, by the time they are acquitted, it’s too late—precious years are forever lost. 

People go mad in there. 

I have lost ten years of my life. I am one of them. It’s an example … a reflection of how our courts are lagging behind. Most of them are Dalits and Adivasis, they have no money and no capital. The trial court passes an adverse judgement—where will they go? How will they go to the Supreme Court and High Court?

Time and again, the Supreme Court has said that it is a huge problem that the sessions court is not giving bail. But trial courts are not willing to change their ways.

Another major issue is that the legal aid services are very poorly implemented in the jail—at least the one in which I was incarcerated. Often, the lawyers in legal aid cases don’t take the serious cases without money involved. The framework of the free legal aid system needs to be increased and protected. Effective lawyers have to be a part of the system.

A major issue also is the caste system that is still being implemented in the prisons. In modern prisons, the caste system is being consolidated. In the manual of the Nagpur jail in which I was put, I saw that there is a form of corporal punishment mentioned under it, a form of physical violence for violation of certain rules. 

Unless the Supreme Court sees the issue with these prison manuals and expunges the rules that the authorities can physically abuse the people, nothing else is important. The Constitution is saying that physical punishment of any form is not allowed. In a way the lacunae of the judiciary is reflected in the prison.

Consider the routine visits of sessions judges to the prison complex. The whole process is deeply flawed because the prison authorities are totally involved in the process of the Sessions Judge’s visits. There is no honest, fruitful accounting that comes out of it.

You spoke about trial courts being constantly averse to granting bail. You also spoke about how trial courts have failed to amend their approach to bail despite the Supreme Court’s directions to them. By your assessment, what are some of the root causes of this?

I have given it a lot of thought. There are two reasons why the Sessions Court rejects bail. The first is the impression of the prosecution. The prosecution puts in a lot of effort, in many ways, to ensure that grant of bail does not happen. The prosecution, without looking at the law, blindly allows the narrative to be dominated and dictated by the investigating agency. The moment the prosecution so heavily defers to the investigating agencies, there is a lot of pressure on sessions judges. Because of this pressure it is difficult to grant bail.

The second reason is that there is a kind of lethargy. ‘Why should I take the risk? Let the Supreme Court or High Court take it up.’ The attitude is that you push your work over to the higher courts—you simply don’t want to look at some of these cases. This lethargy mindset has existed for decades. Why should a person remain behind bars? At the end of the case, that is the important question.

I understand that you will be continuing to teach, but do you have any specific plans? Does the appeal to the High Court’s acquittal order mean any substantive hurdle for those aspirations?

In the upcoming times, I will continue to teach. There are no tangible plans—I don’t know the ‘wheres’ and the ‘whats.’ Those depend on how things turn out in the appeal hearings. But for sure, I will continue to teach.