by –

Prabhakar Sinha

I would not express any opinion on the legality of  Prof .Saibaba’s
conviction  and the  award of a  term for life in  prison because I
have not read the judgment , have not gone through the evidence before
the court and most importantly am not a legal expert.But I would like
to examine its legitimacy and morality because the judgment’s
legality is no the only question that  concerns   the people   .If the
legality of a law and judgment were all that should be of concern to
the people , then the  racial segregation in South Africa was sound
, Hitler’s anti-Jew laws causing death of millions of Jews were  sound
, slavery was was sound , anti-Hindu and anti-Christian  laws in
Pakistan are sound  .By the same token ,the Rowlatt Act enacted by the
colonial government to suppress the ‘revolutionary movement ‘was also
sound  ; but the people of India did not think so , rose in protest
against it ,which led to the massacre of more than a thousand peaceful
men , women and children, who had gathered at Jallianwalabag to
protest against the black law  .And the Rowlatt Act was a very liberal
and just law compared to the draconian laws enacted by  democratic
India .It is not enough that a law should be legally sound but it must
also be morally sound and legitimate must ensure justice .A law and
its operation , which do not deliver justice is immoral and
illegitimate and not a proper   law .

Prof.Saibaba of Delhi University is 90% physically challenged and is
bound to his wheelchair .He is incapable of a violent act unless one
is blind enough to say that he can fire from a gun sitting in his
wheelchair. He cannot kill , maim or break bones .Prof.Saibaba at best
or worst can only be a non-violent revolutionary   due to  his
physical handicap.He has not been found guilty of any violent act ,
but has been convicted of unlawful activity .Even the judgment  says
the accused had conspired ‘to create violence , cause public disorder
and spread disaffection towards the central goverment and the state
government.’ .’The court does not find him guilty of inciting any
particular violent incident , but inciting violence because of his
ideas , which support the  use of violence by the Maoists.I DO NOT

Mahatma Gandhi was prosecuted and  charged with sedition ( Raj Droh
,1922) for creating hatred and disaffection against  the government of
India .He confessed to the  court that he was the biggest rebel
against the British Raj . He also confessed that he was in a way
responsible for the violence at Chaura Chauri and in Bombay despite
his commitment to non-violence . .He was prosecuted for his seditious
articles published in the  Young India .The punishment for sedition
was imprisonment for life , but Gandhiji was sentenced to  just six
years.Bal Gangadhar Tilak was also charged with sedition (1909) for a
number of articles published in the Kesari he edited .He had expressed
the view that violence by the young revolutionaries  was a reaction
against the  repressive government .Tilak was also awarded six years
of transportation ( imprisonment in Andman Nicobar ).

Compared to the award of six years of imprisonment to Tilak (1909) and
Gandhi for sedition by an imperial court , the life sentence awarded
to Prof .Saibaba by a court of democratic India  appears as nothing
short of judicial lynching.Our judges  in such cases appear  so devoid
of human feelings ,sense of proportion and  sense of morality .The
case of Tilak and Gandhi should be the measure for judging the
justness and legitimacy of a sentence in cases in which no violence is
planned or committed by an accused and is held only guilty of
inciting hatred or disaffection against the goverment .

Our Criminal Justice System is a Criminal Injustice System.Several
thousand innocent Sikhs were openly butchered in Delhi following
Indira Gandhi’s assassination , but the then P.M.Rajeev Gandhi and his
men continued to rule the roost despite the public knowledge that his
hands were blood-stained .Hundreds of Muslims were butchered in
Gujarat riots of 2002 , but Modi remains innocent in the eyes of law
because no court has found him guilty of the shedding of innocent
blood of the Muslims .But the people know the difference between truth
and judicial truth.The best example is the case of Md.Shahabuddin
,three or four time M.P.of Siwan ,and probably the most cruel and
savage criminal known .But he, too, was an innocent and respectable
leader like Rajeev and Modi till the arrival of Nitish Kumar as Chief
Minister , whose government got him convicted of  the crimes he had
been  committing  with impunity .

The State follows a double standard in the application of law .With
the coming to power of Modi , the terrorists associated with the
Parivar, who were charged with the bomb blast at Malegaon ,Samjhauta
Express and Ajmer ,are being bailed out or acquitted with the open
support of the government .The NIA persuades the Public Prosecutor to
help the terrorists involved in the bomb blast at Malegaon and
Samjhauta Express secure acquittal .The NIA did not oppose the bail
application of Pragya Thakur, an accused in Malegaon terror attack
.The Public Prosecutor , who had been conducting  the case , resigned
because she was being persuaded to collude with the accused .The
culprits of 2002 Gujarat riots are receiving full protection  of the
State, and the state agencies are changing their stand to help the
accused .

There is discrimination in dealing with the people accused of the same
or similar crimes .The policy being followed is to kill and rape those
who are suspected to be Maoists or their supporters and to protect
those who do the killing ,maiming  or raping  and also to instigate
the police to kill, rape and maim with impunity in Bastar,
Chhattisgarh  as has been discovered  by the National Human Rights
Commission .Prosecute Zakir Naik for ‘spreading communal hatred ‘and
give a free hand to the RSS, BJP and the other members of the Pariwar
to not only spread communal hatred but to engineer communal riots .

Communalism has become the ‘Raj Dharm’ and its adherents are above the
law while the Minorities and the Maoists are the   enemies of the Raj
not entitled to the protection of the law and to be witch-hunted .

The discriminatory criminal justice system has robbed the judiciary of
its majesty and credibility and made its judgment devoid of legitimacy
and morality .It is not in command of the criminal justice system and
cannot be blamed for its ills , but it must find some way to prevent
its  ‘ Cheer Haran ‘( Disrobing ) because  Shree Krishna  would not
come to its rescue.

And finally , why is the judgment in Prof.Saibaba’s case  devoid of
legitimacy and morality ? Because while Tilak and Gandhi , the
towering  and formidable enemies of the British empire , were awarded
only six years of imprisonment by the judges of an imperial government
, Prof. Saibaba , a 90% disabled person  and the co-accused in the
case were sentenced to life by the court in democratic India .The
judiciary must change its mindset and do justice uninfluenced by the
ideology of the power that be if it does not want to become  a
handmaiden of the government .The judiciary must act as a protector
not only of  legal rights but of justice by cutting through the maze
of technicalities  created by  the Executive,  which has made justice
captive to serve its interest .

Prabhakar Sinha

Member, PUCL

* I am not a suporter of the Maoists, do not support violence as a
means of solving political problems, but believe in adherence to  the
rule of law to ensure justice to all without discrimination . I
believe that adherence to the rule of law is the way to prevent
violence as emphasized in the Universal Declaration of Human Rights in
the following words: