Any tribute to academic and activist GN Saibaba is bound to expose the systemic hypocrisy in our judicial system. Saibaba was arrested in May 2014 and remained incarcerated till March 2024. He suffered various ailments and mistreatment throughout his jail term. Though he was initially acquitted by the Bombay high court, in an extraordinary Saturday hearing, the Supreme Court stayed the acquittal and, thereafter, set it aside. The matter was sent back to the Bombay high court for comprehensive examination. The high court again acquitted Saibaba, which led to his release about seven months ago.
Immediately after release, Saibaba, who suffered from 90% disability, disclosed that he suffered an arm injury during his arrest and was subjected to solitary confinement in prison. His statement that the lack of care and medical aid led to the aggravation of hypertension, diabetes, and cardiac complications is on record.
To address the systemic and attitudinal issues, we must first identify these. The Indian prison system and the laws on prisons, including the prison manuals of the states, are not equipped to ensure humane and fair treatment of physically challenged inmates. India does not have an effective law to curtail the torture of the disabled in prisons. Disabled prisoners, whether undertrial or not, are treated as lesser human beings.
Even proper data on the disabled population in prisons is unavailable, as admitted by then minister of State for social justice Krishan Pal Gurjar in Parliament in 2016.
Scholar Edwin M Baum, in a 1984 paper, termed the disabled in American jails “an ignored minority”. He wrote that such prisoners are being punished for two types of crimes: The crime for which they were convicted and the “crime” of being disabled. But America has since then substantially improved its treatment of disabled prisoners.
The Indian law on the subject — the Rights of Persons with Disabilities Act, 2016 — contains provisions on the issues faced by the disabled in various walks of life. Yet, on the incarceration of the disabled, the law is practically mute. The 2016 Act, as well as the prison manuals of the states, should be radically amended, incorporating provisions against custodial torture and police atrocities against disabled inmates. Saibaba was a victim of this glaring lacuna in Indian law. The strict implementation of the laws will also remain a challenge in the Indian context.
Section 5 (3) of the Model Prisons and Correctional Services Act, 2023 talks about designing prisons with the needs of persons with disabilities and other vulnerable groups in mind. The Model Act — only a guideline for the states — contains provisions against the inhuman treatment of prisoners. This, again, remains wishful thinking.
It is time to revisit the method of filing chargesheets in anti-terror law cases. It is necessary to impose a legal restriction on the practice of filing voluminous charges running into thousands of pages in cases under the Unlawful Activities (Prevention) Act, 1967 (UAPA). When the time taken for preparation and finalisation of the charges, coupled with the lack of access to the accused, delays the trial and even consideration of the bail application in the UAPA cases, it is essential to revisit the working of this law. The courts should insist that charges should be precise and specific.
In at least four recent judgments, the Supreme Court has reiterated the old expression that “bail is the rule and jail an exception”. By the time the apex court, in the case involving former Delhi chief minister (CM) Arvind Kejriwal, said that “personal liberty is sacrosanct” and trial courts and the high courts should be alert to this principle, Kejriwal had already spent 176 days in prison. Again, the apex court in the case involving former Delhi deputy CM Manish Sisodia said that trial courts and the high courts have often forgotten the principle that “bail is not to be withheld as a punishment”. Sisodia was in prison for more than one year and five months by the time the judgment was delivered in his case.
In Jalaluddin Khan (2024), the Supreme Court said that even in UAPA cases “when a case is made out for a grant of bail, the courts should not have any hesitation in granting bail”. In Prem Prakash (2024), the Court explained the meaning and purport of Section 45 of the Prevention of Money Laundering Act (PMLA) by reminding that under Article 21 of the Constitution, liberty cannot be curtailed by breaching the procedure established by law.
Two issues arise here: One, despite making clear the judicial stance on bail in UAPA and PMLA cases, the reality on the ground has not improved. Two, when there is a denial of bail and a resultant long incarceration, there is no law that provides for compensating the victims of State action by making the executive accountable. Saibaba’s is an illustrative case.
A judgment of the apex court is the law of the land. According to Article 141 of the Constitution, it is binding on all the courts in the country. It is a tragedy that often, not only the trial courts and the high courts, but even the Supreme Court ignores the pronouncements on the citizen’s freedom. The executive also pretends to be ignorant of the law laid down by the apex court.
Therefore, an effective method to liberalise bail jurisprudence will be to promulgate a separate Bail Act. It should assimilate the principles laid down in the recent apex court judgments and restore bail as a rule by fixing a fair and reasonable maximum period for undertrial detention. It should also provide for compensation for unjust detention. There are significant lessons emanating from the Saibaba case.
Kaleeswaram Raj is a lawyer at the Supreme Court of India.The views expressed are personal
