By Shobha Aggarwal & Dr. Paramjit Singh Sahni
18 May, 2014
“The Nuremberg Trials : The Doctors Trial
The Doctors Trial considered the fate of twenty-three German physicians who either participated in the Nazi program to euthanize … physically disabled or who conducted experiments on concentration camp prisoners without their consent. The Doctors Trial lasted 140 days. Eighty-five witnesses testified and almost 1,500 documents were introduced. Sixteen of the doctors charged were found guilty. Seven were executed.”
The above quote depicts the treatment meted out to hundreds of thousands of people who were physically challenged under the Nazi Germany regime; and how eventually Nuremberg trials brought to justice the doctors, the police men (SSS men) and those administering the concentration camps. Professor G.N. Saibaba – teaching English at Delhi University’s Ram Lal Anand College – was arrested on May 9, 2014 from with in the University campus by the Maharashtra police for his alleged Maoist links and is presently lodged in a Nagpur jail.
His plight is jail is comparable to that of physically challenged in concentration camps during the Nazi rule in Germany. He is lodged in a solitary, dark cell with no attendant. It means that if he wishes to answer the call of nature he has to crawl like an animal. In any case he cannot use the conventional toilet seat. Saibaba suffers from 90% disability afflicted as he is from Post Polio Residual Paralysis (PPRP) of both the legs since age 5. He also has weakness of upper limbs. Besides he suffers from high blood pressure; and has severe low backache. He is wheel chair bound and needs assistance for his everyday activities. Reports indicate that he is not even provided medicine for his high blood pressure. There is a very real risk of his getting a heart attack or a brain hemorrhage; the latter episode could leave him half paralyzed and speechless. The untreated high blood pressure could damage his kidneys. It may be recalled that Jayaprakash Narayan’s kidneys were damaged while he was incarcerated in jail during Mrs. Gandhi’s Internal Emergency years, 1975-77. He was heading the Sampoorna Kranti Andolam (Movement for Total Revolution). Not being provided with an attendant for help could lead to complications like loss of bowel and bladder control due to spinal cord compression – a sort of punishment being inflicted with in the jail premises which is worse than capital punishment. And Saibaba is just an accused!
Earlier in September 2013 the police had raided Saibaba’s residence and took away what was alleged to be ‘incriminating evidence’. Saibaba has since been assisting the Maharashtra police in its probe whenever it descended in Delhi. A charge sheet was filed in the case in February, 2014 as reported in a section of the print media and a non-bailable warrant procured against Saibaba. He was eventually arrested. As Prof. Saibaba was cooperating in the probe there was no need for his arrest during the trial period. Ironically he has been arrested under various provisions of the Unlawful Activities (Prevention) Act, 1967 [UAP Act] as amended from time to time. Under this law anticipatory bail is expressly prohibited. Even the regular bail gets denied underthe Act if the court on a perusal of the case diary or the report prepared by the police is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. This goes against the fundamental principles of granting bail to an accused. It is ultra vires the Constitution as the liberty of the accused is unnecessary curtailed. Some of the sections under which he has been charged include S. 13, 18, 20 and 39 of the UAP Act. The investigating agencies have gone to ludicrous lengths in using these sections against him.
Prof. Saibaba has always stood up for the rights of the dispossessed. He is pro-people. The mighty Indian State has undertaken a crackdown on Prof. Saibaba and those who share his views. The reason why the police arrested Prof. Saibaba appears to be to keep him in judicial custody/police custody for over 48 hours or more and then use this as a pretext – under cover of Govt. service rules – to suspend him from job as has been done on 15 May, 2014. Later the family would be asked to vacate the Govt. accommodation. All this would intensify the mental, psychological and social pressure on Prof. Saibaba. In ordinary circumstances had Saibaba been not wheelchair bound and afflicted with polio of both the legs he could have been shown to be escaping during transportation and eliminated in a false encounter. Since Prof. Saibaba is already paralyzed in both legs the authorities may not like to resort to break his legs or use the roller-coaster method – practices which are in vogue in many police stations.
We are living in an era where the biometric information of every citizen of India viz. pattern of iris, finger prints of both hands and the facial profile is available with the Ministry of Home Affairs. A misuse of this data could lead to any citizen being incriminated in any crime. Besides one does not need to be a computer whiz to appreciate how data can be added or deleted even from anexternal hard disk of a personal computer to incriminate people whom the Indian State deems to be dangerous to wit those sensitive persons who have the interest of the poorest of the poor at heart.
It is ironic that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 has the statement of Objects and Reasons of Bill tabled in Lok Sabha on 26 August, 1995; the statement includes inter alia the responsibility of the State towards protection of rights and provision of medical care; and to counteract any situation of the abuse and the exploitation of persons with disabilities. The Indian Constitution guarantees by Article 14 Equality before the Law and Equal Protection of the Laws; however the blind social stigma attached to physically incapacitated persons cannot be overlooked. It is patently obvious in Saibaba’s case. Someone has to have an I.Q. well below that of a congenital idiot to be missing Saibaba’s physical incapacitation. Those involved in investigating the matter for the last eight months failed to inform the higher authorities that a person with 90% disability is being arrested clandestinely from Delhi and airlifted surreptitiously to Nagpur or whereabouts in Maharashtra. The judge who remanded him to custody failed to order appropriate arrangements for him in the jail as befits a physically challenged person. The jail doctors and the jail administration, too violated the Disabilities Act by not making arrangements for ramps within the jail premises where Prof. Saibaba is lodged in a solitary, dark cell. As mandated by the provisions of the chapter 8 section 46 of the Disabilities Act the jail authorities failed to get adaptation of toilet for wheel chair users. As the problems faced by Prof. Saibaba have been highlighted by the media, the Chief Commissioner for Persons with Disabilities appointed under the Disabilities Act could have taken steps to safe guard the rights and facilities that needed to be made available to Prof. Saibaba. The Chief Commissioner has the power to take suo motto action in case of deprivation of rights of persons with disabilities and to take up the matter with appropriate authorities. The Chief Commissioner, for the purpose of discharging his functions under this Act has the same powers as are vested in a court under the Code of Civil Procedure, 1908. Every proceeding before the Chief Commissioner is a judicial proceeding. Why has the Chief Commissioner under the Act or the State Chief Commissioner (based in Pune) not acted pro-actively so far in Prof. Saibaba’s case? Those who are physically challenged or differently abled in any way constitute the second largest minority community in India, second only to Muslims. It is shocking that twenty years after the passage of the Disability Act, State institutions including jails continue to deny basic rights and dignity to people who are differently abled. The Indian Government’s attitude becomes highly condemnable since India has also ratified the U.N. Convention on the Rights of Persons with Disabilities on 1 October, 2007. Article 14 of the Convention states:
“Liberty and security of person
1. States Parties shall ensure that persons with disabilities, on an equal
basis with others:
(a) Enjoy the right to liberty and security of person;
(b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.
2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.”
Prof. Saibaba is a political prisoner. In view of the facts and circumstances of the case he needs to be given bail on emergent basis and the accusations against him withdrawn.
[Shobha Aggarwal is an advocate and Dr. Paramjit Singh Sahni is a qualified orthopedic surgeon. Both are members of Public Interest Litigation Watch Group. Email: [email protected]]