Supreme Injustice

“The Law and the Will of the Fuhrer are One”

Editorial Comment, November 2022

Supreme Court had an extraordinary special non-working day sitting on Saturday October 15 to hear the appeal of Maharashtra government against the acquittal/discharge of Prof GN Saibaba and 5 others in a UAPA case by the Mumbai High Court. The judges suspended the acquittal (under which law/procedure can an acquittal be suspended?) All of those discharged had already been behind bars for 8 years and one of them, Pandu Narote, passed away a month back in jail during the pendency of the appeal. Although wheelchair bound Prof Saibaba is 90% disabled and suffers from several ailments, SC bench rejected the requests for either bail or home arrest as it did not agree to the contention that he poses no danger to the state. The judges observed that the crimes are heinous and, in such terrorist acts it is the brain which is more dangerous than physical participation in criminal acts. 

What is extraordinary about the CJI’s decision to permit hearing of the Maharashtra Government’s appeal against the acquittal, is that the State Government represented by Solicitor General Tushar Mehta, had orally mentioned the matter to the Second Bench headed by Justice DY Chandrachud and sought stay of the acquittal by the Bombay HC. Justice Chandrachud is reported by Live Law to have remarked in open court that the appeal could be listed only on the following Monday (October 17), thereby in effect, refusing to list the matter on Saturday (October 15). Justice Chandrachud is also reported to have noted that “He has got an acquittal in his favour. Even if we take it up on Monday, and assuming we issue notice, we cannot stay the order”. It is thereafter that the Chief Justice, on the administrative side, chose to permit a hearing before a specially constituted Bench of Justices MR Shah and Bela Trivedi, on a non-working day, Saturday, 15 October 2022.

A commentary on LiveLaw observes, ‘Extraordinary sittings beyond the regular working timings of the Court are held when pressing issues of personal liberty are involved or to avert grave constitutional crisis. We have seen midnight hearings in Yakub Memon and Nirbhaya cases, as they were pleas to stop the imminent hanging of prisoner. The Court sat on holidays to hear the cases of Arnab Goswami and Vinod Dua since personal liberty was at stake. Special hearings were held in cases relating to Karnataka and Maharashtra assemblies in view of the exigencies relating to governance. In the GN Saibaba case, what was the pressing urgency which could not wait for even two more days for a listing before the regular bench? To borrow a usage which is becoming increasingly popular among lawyers, “would heavens have fallen” if the matter was heard in the regular course? This is the question which several lawyers and other citizens are asking. Why a special sitting for a plea to take away the personal liberty granted by a High Court?’

On October 14th a bench of Mumbai High Court had set aside trial court order convicting Prof Saibaba and others. The bench had ordered immediate release of the accused as it found the trial to be vitiated since the sanction obtained under the provisions of UAPA was invalid as the sanctioning authority had not applied its mind and gave sanction without examining evidence and without giving any reasoning. The Bombay High Court insisted that with respect to statutes such as the UAPA, which deviate significantly from established procedural safeguards, the State (prosecution) is under an obligation to comply strictly with existing procedural safeguards. The reason why procedural safeguards should be mandatory is because of the history of the misuse of anti-terror laws. The Bombay High Court referenced TADA and POTA, (which pre-dated UAPA), stating that they were ‘perceived as legislation bordering on the draconian’ and that ‘cutting across political and ideological lines, the provisions of the aforesaid statutes faced severe criticism as susceptible to egregious misuse and weapon of stifling the voice of dissent.’ On the mandatory nature of an independent review of evidence, the Bombay High Court rightly concluded that ‘We are inclined to hold, that every safeguard, however miniscule, legislatively provided to the accused, must be zealously protected.’

Moreover, there was no possibility that the prisoners would have been released even if the SC did not have the extraordinary sitting on a Saturday because the HC had asked them to execute bonds to the satisfaction of the trial court in terms of Section 437A CrPC, which was not possible before Monday. Thus, the High Court ensured that the accused would remain in custody. Hence the questions on the urgency for this special hearing when most appellants have to wait for years to even get a listing in SC and what to say of bail, many habeas corpus petitions are not being heard for months. Moreover, there are dozens of important constitutional cases which the court had not made time to hear for 5-6 years including the ones related to demonetization, electoral bonds, etc.

Even more extraordinary is the fact that instead of a regular functioning bench of the SC to hear the case, a special bench of Justice MR Shah and Justice Bela M Trivedi was formed only to hear this case. And Justice MR Shah is quite known for his fulsome praises for Prime Minister Narendra Modi even though he is supposed to be ‘independent’ as an SC judge. Hence the suspicious nature of the whole affair. When the advocate for Prof Saibaba moved for bail or house arrest, the Solicitor General commented that these ‘urban naxals’ are in habit of seeking house arrest. The bench failed to even ask under which statute the crime of being ‘urban naxal’ can be found, since as we all know this term is a political propaganda term of the ruling RSS/BJP. 

People’s Union of Civil Liberties (PUCL) has said in a statement, “One is sadly reminded of one of the low points in the history of the Supreme Court, the decision in `ADM Jabalpur v Shivkant Shukla’ (AIR 1976 SC 1207) when the majority held that during the duration of the Emergency, there was no need for the executive to comply with the procedure laid down for detaining persons under MISA as the right to life under Article 21 stood suspended. This cavalier approach to procedure was castigated by Justice Khanna in his historic dissent in ADM Jabalpur who rightly opined that, ‘The history of personal liberty, we must bear in mind, is largely the history of insistence upon procedure’.”

Hence it appears that the whole exercise of listing the appeal on a Saturday, constitution of a special bench of specific judges and suspension of acquittal instead of the due process of appeal against it was an attempt to show to what extent the vindictive state is ready to go to teach a lesson to the opponents of the ruling dispensation. It was more so since the news of the acquittal in this case had made many people happy which was not liked by the ruling party. This exposes the very core of the character of the current judiciary and the total absence of justice and anything legal even within the norms and bounds of bourgeois democracy.

Moreover, if we see this hearing with reference to many recent cases like no action against Municipal officers who continued the razing of houses by bull dozers even after SC had stayed it, the decision on the appeal of Zakia Jafri, arrest of Mohammed Zubair, the judgement in Teesta Setalvad and RB Sreekumar case, the penalty imposed on Himanshu Kumar who had filed a petition seeking enquiry in concocted encounter by Chhattisgarh killing several tribals 13 years back, the way Maharashtra anti-defection case was kept pending leading to fait accompli of toppling an opposition party government, rejection of bails to Umar Khalid and Jyoti Jagtap, etc., it is pretty clear that it is not an act of aberration, but in keeping with the very character of the Indian judiciary at present.

We know that in class divided system the state is the instrument of repression to preserve the power of the ruling class. But at the present juncture, the judiciary has lost even the relative autonomy it has in a bourgeois parliamentary system. It has now become completely subservient to the ruling party. Retired Chief Justice of Madras and Delhi High Courts Justice AP Shah categorically says that he ‘sees a clear campaign against Muslims’ and seeks an ‘apology at the highest level’. Ex-judge of SC Justice Madan Lokur also said that Delhi High Court should hold a special hearing to issue a clarification that it did not seek Teesta’s arrest. Justice AP Shah clearly concludes that he sees emergence of an ‘elected dictatorship’, ‘leaders are murdering democracy using democratic institutions’ and ‘Election Commission, Human Rights Commission and media have all joined in’.

As Marxists we know that judiciary is nothing but a constituent of the state which is the repressive instrument of class rule. We live in a capitalist society known as bourgeois democracy in which the bourgeois state protects the private property and profits of the capitalists. Thus, bourgeois democracy is the dictatorship of capitalists over the working class.  However, as long as capitalism was driven by relatively freer competition among individual capitalists and monopolies did not dominate the state, the various organs of bourgeois democratic state like parliament and judiciary had some autonomy and relative independence. This autonomy created some space for individual and civil liberties. The working class and oppressed people could also utilize this relative independence and autonomy to fight for their democratic rights and economic demands till they were not endangering the bourgeois state itself. Hence working class have always stood up not only to defend democratic rights but the historic fact is that most of the democratic rights obtained under bourgeois rule were a result of glorious struggles and heroic sacrifices of the workers.  However, as the monopoly capital became dominant and, especially post the 1970s, as the bourgeois counter revolutionary onslaught in the form of neoliberalism has intensified the capitalist exploitation, this relative autonomy and independence has eroded to a great extent. The bourgeois state has now turned into agent, salesman and enforcer of the monopoly corporate finance capital wherein the space for democratic rights has shrunk to a miniscule. This forms the basis of increasing tendency of fascism in various forms in almost all capitalist countries and most bourgeois political groups/formations. If, in this scenario, an organized fascist party assumes power, all-round onslaught on democratic rights becomes the dominant trend. Since all bourgeois political formation and state institutions have this fascistic tendency none of the organs of the bourgeois democracy acts as much of an obstacle in the way of fascist takeover. Instead, all of these organs – bourgeois constitution, parliament, judiciary, executive, media, etc., have become facilitators of fascist takeover and need not be disbanded or attacked for the fascist purpose. The parliament and judiciary in India exhibit this tendency in toto. The current proceedings in judiciary force us to recall the Nazi Hermann Goering’s pronouncement that “the law and the will of the Fuehrer are one.” And Carl Schmitt, perhaps the leading constitutional ‘jurist’ in the Third Reich, pronouncing that “law is no longer an objective norm but a spontaneous emanation of the Fuehrer’s will.”