In the labyrinthine corridors of justice, the distinction between possessing literature and committing a crime often blurs, casting shadows on the fundamental rights of freedom of expression and thought.
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The Bombay high court judgment acquitting former Delhi University (DU) professor GN Saibaba and five others for suspected Maoist links and “waging war against India” comes as a nuanced judicial precedent, stressing that individuals cannot not be prosecuted for their intellectual pursuits -- not unless there is concrete evidence linking them to illicit activities.
The 293-page judgment in the 2013 case presents a fine illustration of exploring the intricate process of discerning criminality from intellectual curiosity and the pivotal role that courts ought to play in the realm of safeguarding individual rights. Simultaneously, the judgment also shines light on the imperative of procedural compliances that serve as a check against abuse of power and ascertains the accountability of law enforcement agencies and judicial authorities.
Possession of literature alone can’t be a crime
{{/usCountry}}Possession of literature alone can’t be a crime
{{/usCountry}}The Maharashtra government had cited recovery of material contained in electronic form in Saibaba’s computer to link him with the banned organisation, CPI(Maoists), adding that the material demonstrated that he had knowledge about the activities of the organisation. This included pamphlets of CPI (Maoists), his interview as the vice-president of the Revolutionary Democratic Front (RDF) , the alleged frontal organisation of the CPI (Maoist) and review for RDF.
Basing its judgment on intellectual freedom being the cornerstone of a democratic society, the high court was emphatic that “the contents of these documents read and understood by any person, by themselves would not constitute an offence” under the Unlawful Activities Prevention Act (UAPA) or the Indian Penal Code (IPC).
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“The content of these documents if taken cumulatively, would perhaps demonstrate that the accused were sympathisers of a Maoist philosophy or sympathised with the cause of certain tribal groups or certain people who were perceived to be marginalised or disenfranchised...and mere possession of such literature, having a particular political and social philosophy by itself is not contemplated as an offence under the UAPA,” held the division bench of justices Vinay G Joshi and Valmiki SA Menezes.
In Thwaha Fasal Vs Union of India (2021), a two-judge bench of the Supreme Court categorically held that a mere association with a terrorist organisation was not sufficient to attract Section 38 of UAPA, which penalises the commission of an offence relating to membership of a terrorist organisation. “The association and the support have to be with intention of furthering the activities of a terrorist organisation. In a given case, such intention can be inferred from the overt acts or acts of active participation of the accused...” the top court said, granting bail to Fasal who was found in possession of various materials relating to CPI (Maoist).
Again, in July 2023, the Supreme Court dismissed a conservative approach in attributing criminality solely based on the possession of controversial literature. While granting bail to Vernon Gonsalves and Arun Ferreira in the Bhima-Koregaon case for having alleged Maoist links, the court held that mere possession of literature, “even if the content thereof inspires or propagates violence,” by itself cannot constitute any of the offences under UAPA. When there is nothing to prima facie establish the complicity of the accused in overawing any public functionary by means of criminal force or causing death of any public functionary or attempt to cause death, the top court said, mere holding of certain literature through which violent acts may be propagated would not ipso facto attract the provisions of UAPA.
Relying on these judgments, the Bombay high court underlined that passive membership, even if demonstrated from the material seized from Saibaba, is not contemplated as an offence under UAPA.
The high court further highlighted the Constitutional right of individuals to explore and discuss a wide array of ideas without fear of retribution or censorship. “In any event, merely because a particular philosophy is contained in the literature, which in any case has not been proved is under the authorship of any of the accused, or because a person chooses to read such literature which is otherwise accessible from the internet from various websites containing Communists or Maoists literature and philosophy, would to a certain extent be violative of the fundamental rights of any citizen under Article 19 of the Constitution of India,” it said.
The high court asserted that merely because a citizen downloads certain materials or even sympathises with a particular philosophy, would itself not be an offence unless there is specific evidence led by the prosecution to connect an active role shown by the accused with particular incidents of violence and terrorism. And in this case, the court said, the prosecution could adduce no evidence to connect Saibaba to any incident, terror attack or act of violence, either by participating in its preparation or in any manner providing support to its commission.
“Playing several videos or requesting the court to read through hundreds of pages of literature does not constitute evidence. In our opinion, there should have been specific evidence led through witnesses to connect with the making out of an offence,” stated the judgment.
Procedural compliance as the bedrock of criminal prosecution in terror cases
The handling of terrorism cases presents a delicate balance between swift action and procedural integrity. Therefore, the importance of procedural compliance in such cases cannot be overstated because the gravity of charges warrants fairness, transparency, and accountability.
The Bombay high court judgment delved into the significance of adhering to procedural norms in terrorism cases and its implications on human rights and legal integrity while trashing the entire case against Saibaba and five others over incurable procedural violations.
Saibaba and five other individuals were exonerated by the high court initially in October 2022 because of the state’s failure to meet two essential procedural safeguards -- the sanction to prosecute and an independent evaluation of the sanction prior to the invocation of severe terror accusations. Asked by the Supreme Court in April 2023 to decide the case afresh, the high court reached the same conclusion.
The high court first held that the sanction to prosecute the six, including Saibaba was invalid because it not only showed non-application of mind by the reviewing authority’s but also since there was no material on record by an independent authority to guide the former in reaching this decision. The first sanction for the five accused, who were arrested in 2013, was granted on February 15, 2014. The second sanction for the prosecution of Saibaba was received on April 6, 2015, after the charges were framed by the trial court.
“The laconic half page communication cannot be called a report since there is no material found therein to infer that the authority has reviewed the evidence gathered and formed a particular opinion on that basis,” said the court, adding the sanction accorded in the absence of compliance with the mandatory pre-requisite cannot be termed as a valid sanction within the meaning of the UAPA.
As regards the sanction for Saibaba, the bench said that “the position is even worse”. The record showed that when the trial court framed the charges, there was no sanction to prosecute Saibaba. “Without a valid sanction, the trial court could not have heard the case since it essentially lacked jurisdiction. Thus, there is total non-compliance with the sanction provision which goes to the very root of the case, vitiating everything against accused No.6 (Saibaba) from its inception for want of authority of the trial court to proceed,” it held.
As the very foundation for initiation of prosecution was not in consonance with law, the bench maintained, the order of taking of cognisance by the special court vitiated the entire further proceedings.
Arrest and seizure in the case were also held to be invalid by the high court, noting the police failed to abide by the norms laid down under the UAPA, besides the failure to prove electronic evidence against the accused.
While UAPA stipulates authorisation from a high-ranking state officer, not below the rank of the secretary of the government, before arrest and seizure, the prosecution claimed that the general provisions of the Code of Criminal Procedure (CrPC) also entitled a police officer to do so.
Rejecting this proposition, the high court noted that although the scheme of UAPA empowers a high-ranking police officer at the level of deputy superintendent of police to investigate, the power of arrest and search are specifically kept under the control of the designated authority i.e. the principal secretary of the government.
“The legislative intent was therefore to confer powers of arrest and search on an officer specifically authorized in that behalf by the competent authority and such search and arrest can be conducted by only under the supervision and control of this high-ranking government officer (designated authority) which is independent to police authority,” said the bench, adding UAPA is a special statute which will override the CrPC provisions as regards the statutory scheme for powers of arrest or seizure.
Based on it, the high court held that the arrest of Saibaba and search and seizure from his premises by a DSP-level officer without an authorisation from the designated authority vitiated the entire action of the police. “The prosecution has failed to establish legal arrest and seizure from the accused,” it held.
Another important marker from the judgment pertained to recording the hash value of digital devices, such as mobile phones and laptops, confiscated during investigations. Hash value is an electronic fingerprint of a digital device, and records changes if contents in the device are tampered with after seizure.
Underlining that the prosecution’s case solely rests on the electronic evidence seized from Saibaba on September 12, 2023, the bench wondered why electronic devices were not secured by drawing their hash values.
“Apart from hash value, unique identification number of the hard disk and electronic gadgets have not been recorded in panchnama to vouch for its credibility. The description of the electronic gadgets in the nature of outer appearance, cover, serial number, or some other factors, which could have been easily incorporated in the panchnama with the help of experts, have not been done. The seizure was like an ordinary article of crime,” lamented the bench.
The court ultimately declared that the “prosecution has failed to prove seizure and search of incriminating material from the house search of” Saibaba.
While the Maharashtra government has challenged the acquittal of Saibaba and others the Supreme Court, the high court judgment upholds the principles of intellectual freedom by distinguishing between literary interest and criminal intent. Even as the terror cases may tempt authorities to circumvent established procedures in the name of expedience, the Bombay high court judgment highlights that erosion of procedural safeguards comes at the risk of compromising the very principles that underpin a democratic society and fundamental rights.