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Mainstream, VOL LIX No 33, New Delhi, July 31, 2021

Civil society must strive to complete the unfinished task to protect the Bhima Koregaon victims of injustice | Arun Srivastava

Friday 30 July 2021

by Arun Srivastava

A series of remembrances have since been held in honour of Father Stan Swamy, Jesuit priest and defender of the rights of Jharkhand’s tribal communities, with Church leaders, social activists and academics shedding their tears to console his death in the custody of the NIA.

Swamy was made to languish in the jail custody nearly for a year. NIA used the dirty designs to thwart his trail. Denial of trial is indeed a sad commentary on the functioning of judiciary which failed to put Swamy on trial despite his incarceration for nearly a year. Swamy died without a fair trial. Though the judges of the Bombay High Court expressed their deep sorrow, it is shocking that they allowed themselves to be a victim of the machinations and falsehood of the NIA.

A Pan-India movement call has been given by Shahid Father Stan Swamy Nyayik Sangarsh Morcha. But the big question is what interest it would serve. This movement would not punish the NIA officials and others who to serve the vested interest of their political masters conspired to kill him inside the jail. The release of Swamy would have diminished the political aura of the rulers of the country. No doubt the death of Swamy refurbished and boosted the image of these political bosses who strongly believe that criminalisation of a social activist or academics would send shiver down the spines of the common people of this country and make them obey their diktats.

Father’s death did not move the judiciary or any other institution or individual. It was the chorus of criticism and condemnation that made them look at their action. But it was too late. By that time father had passed away. Probably the protest and condemnation would have made some difference if the people have used this democratic right when Swamy was alive. But the fear of Gestapo torture made them not to keep their mouths shut.

Swamy was arrested and charged under several sections of UAPA, an anti-terror law that suspends the most fundamental, constitutional rights of those arrested i.e., the right to be considered innocent until proven guilty. Only 2.2 per cent of cases registered under UAPA between the years 2016-2019 ended in convictions by court, according to data presented by the Union Home Ministry in the Rajya Sabha. Given the low conviction rate as well as the ability to foist cases that have little basis in fact, it is difficult for a State committed to the rule of law to arrest and keep so many under-trials behind bars even in the category of “dangerous” prisoners.

An insight into the Swamy’s case would reveal that he was used as a tool to terrorise the dissenters and throttle their voices of protest. Swamy was made to languish in the jail to satisfy the of the corporate owners and their minions, as he was against usurping and grabbing of the tribal lands for their various projects. The NIA may refute that it ever entered into a conspiracy to kill him, but the facts overwhelmly confirm this. Swamy was labelled as a Maoist to terrorise the tribals. The custodial death of Father Stan Swamy represents the cruelty, callousness and violence of the State at its worst. The initial protest that Swamy was leading was against the wrongful detention of more than 3,000 Adivasis in Jharkhand. Many of these under-trial prisoners have been languishing in jail for years without the constitutional guarantees of fair trial.

UAPA is not enshrined in the Constitution. Obviously the judiciary could have taken the state, the NIA, to the task for its inability to file the chargesheet. Instead it allowed to dictate. There is no denying the fact that judiciary surrendered to the wishes of state. In this backdrop all its apologies and sorrows are futile and useless. They are only for public consumption and not more than that. Custodial deaths in India are far too common, both in police custody as well as judicial custody with more than 1,600 people dying in custody every year. Many of the deaths in custody are those of under-trials, those who have been arrested but are yet to be convicted. For many, their trials have also not started. A sensitive judiciary certainly would not allowed this to happen.

The Indian judiciary never pulls up the police or the investigating agency for its failures and wilful negligence. It allows them the opportunity to get away. It is nothing but an act of surrender of judiciary. We are also witness to some of the cases where the judiciary has put its foot down. In such cases the state is exposed and finds tough to hide its face. But such instances are rare. Courts often shirk their responsibilities on the plea that they are overburdened. Often the quality of legal aid remains poor.

Swamy was not the only under-trial awaiting bail in Taloja Central Jail. It’s maximum capacity is around 2,124 prisoners but today it houses close to 3000 prisoners. More than half of the occupants are charged with petty or non-serious offences where the maximum sentence is less than 2-7 years. This is a common theme across many of our prisons, especially in urban centres. One wonders why the courts have been reluctant to clear these cases. Is there any vested interest at work?

After his death trade unions, farmer unions, student unions and social organisations are protesting. Coordination committee has been formed to submit memoranda to governors of different states for the repeal of the Unlawful Activities (Prevention) Act and release of rights activists arrested under the anti-terror law on allegedly flimsy grounds. Shahid Father Stan Swamy Nyayik Sangarsh Morcha held discussions with the All India Trade Union Congress (Aituc), Indian National Trade Union Congress (Intuc), Students Federation of India (SFI) and social organisations for a pan-India coordination committee. But ultimately what purpose this exercise would serve.

Swamy’s other 15 co-conspirators languishing in jails in the Bhima Koregaon case are facing the same fate. Some of them may die any day. NIA is out to ruin the lives of these 15 intellectuals and academics, as they are revered in the society and the country. Their incarceration has already shaken the confidence level of the intellectual and academics of the country. The morcha and coordination committee must hit the streets and demand the unconditional release of these people. It has already been exposed that NIA using the Pegasus tools has falsely implicated these people. The committee ,unions and social bodies must exert pressure for repeal of draconian laws like the UAPA under which intellectuals, academics, writers and human rights activists have been languishing in jail without trial for years and elderly person like Father Stan had to die for lack of proper medical treatment in jail.

The CPI(ML) general secretary Dipankar Bhattacharya has rightly said; “Not only the country but the whole world considers it a State-sponsored murder (death od Swamy). To teach the agitators a lesson, the Modi government displaced and put under trial a person who had fought for undertrial prisoners and displaced persons all his life”.

At the recently held Requiem Mass held in memory of Father Stan Swamy at St Mary’s Cathedral in Ranchi the participants prayed for the release of all the Elgaar Parishad accused. But none should nurse any illusion that the Modi government would release them notwithstanding the failure of the state to prove their guilty conclusively. The Modi government and NIA would wait for many more deaths to take place. Death of the Bhima Koregain accused is not going to make the Modi government sad and compel it to do some amount of introspection. It would rejoice at their victory. Like Swamy the other 15 prisoners are rights activists, lawyers, academics and litterateurs and have been arrested and accused of Maoist links in the case.

Bishop Mascarenhas was correct in his assertion that at least some of the “evidence” against them had been planted and; “We do not mourn Father Stan Swamy but rather celebrate his life, lived for the poor and marginalised. He was loved by many but also hated by a few who tortured him, persecuted him, refused to meet his basic needs”. He said: “The State (Union government) is obviously not concerned about convictions. It is more interested in the process that keeps the accused in jail for years, thus neutralising their abilities to organise a viable opposition to unjust projects that rob the poor of their rights and even their livelihood.”

It would be naïve to believe that the state would initiate any judicial inquiry into Stan Swamy’s death. Even the judiciary cannot be expected to act suo motu. Interestingly the Bombay High Court was busy hearing the petition for bail posthumously. This is simply an eye wash. They may argue that it has to be done in the greater interest of the justice. But the question remains how it would help the criminal justice system. The only thing it can do is a posthumous order sentencing him would terrorise the people; at least justice has been done. Anto national and criminals would not be spared.

Astonishingly after his death oral comments made on him were withdrawn by the court after ASG submitted they were ‘twisted’ on social media and by the press. Why the NIA and ASG representing the NIA did not withdraw these twisted versions when he was alive? The court after his death also found virtue in him. During the last hearing, the court had said that it had “great respect” for Father Stan Swamy’s work and, legally, whatever there was against Swamy was a different matter.

According to the NHRC guidelines, cases of custodial deaths require an inquiry by a judicial magistrate. Swamy died while in judicial custody and an Accidental Death Record (ADR) was registered after his death. The ASG Anil Singh said the appeals filed by Swamy being heard by the High Court would stand abated since he has passed away. Singh said that while he had no objection to legal procedures being followed for the inquiry into his death, there is no question of filing a report before the High Court as the pending appeals will be considered abated now. If Swamy was really a criminal and a Maoist then he certainly does not deserve mercy. There is no need for abating the case. The NIA must pursue and the court should deliver an order.

The prosecutors and the criminal justice system must not look like a hypocrite. If Swamy was guilty, he should be punished. If he was framed then in that case the NIA officials who entered into conspiracy to inflict institutional murder on him should be held guilty. This is nothing but a cold blooded murder. The counsel Desai, pleading for Swamy, was correct in saying; “We are looking at a peculiar situation where the death has happened while the appeals were pending before this court. This court’s supervisory jurisdiction does not go away, it has the power to ensure justice is done in view of events that have happened”. The court will hear the matter on August 4.

Surprisingly Justice Shinde told the ASG that while speaking on Swamy, the court had clarified that so far as legal issues and provisions of the Unlawful Activities (Prevention) Act against him were concerned, they were a separate matter. “If you are hurt if I have said something…we take them back… our endeavour is always balanced… I take back whatever I said personally… but we are also human beings, suddenly something like this happens, naturally, as a human being, our mind gets… beyond this we have nothing to say. You may be right, but we have no control on what happens outside (the court),” Justice Shinde said. ASG Singh said it was about the public perception.

As planned the People’s Union for Civil Liberties (PUCL) along with other tribal rights and social organisations as decided should organise a series of protests but they should focus on highlighting the cases of all the accused persons. It should demand repeal of draconian legislation like the UAPA and sedition, release of all political prisoners, compensation to the family members of undertrial prisoners and action against authorities for lodging fabricated cases against innocent people and withdrawal of sedition cases lodged against others. There was not a single trial and his bail petition citing health issues and poor medical facilities in the central jail was rejected by the NIA special court on four occasions.

Hearing posthumously the appeals filed by late Jesuit priest Stan Swamy in the Bhima Koregaon-Elgaar Parishad case on Monday, the bench of Justices S S Shinde and N J Jamadar remarked that the tribal rights activist was a “wonderful person” and the court has “great respect” for his work. Even as the bench said the court has great respect for Swamy’s work, it also noted that “whatever is there against him is a different matter legally.” The statement is full of dichotomy. If Swamy was a wonderful person and the court had great respect, then in that situation the court should have thrown away the allegation of the NIAand set him free.

Justice Shindehad also observed; “Such a wonderful person. The kind of service he has rendered to the society. We have great respect for his work. Legally, whatever is there against him is a different matter”. The HC also noted that nobody mentions that this is the court which granted bail to (co-accused) Varavara Rao, despite vehement opposition. What does it imply? Did the court intend to say that Rao was given a favour? The HC said; We allowed (Rao’s) family to meet as we thought human angle has to be seen. In another case (Hany Babu), we sent to hospital of his choice (Breach Candy Hospital-a private medical faciluty)”. Strange why it did not see the same in the case of Swamy?

The Elgaar Parishad case is related to inflammatory speeches made at a conclave held in Pune on December 31, 2017, which, the police claimed, triggered violence the next day near the Koregaon-Bhima war memorial located on the outskirts of the western Maharashtra city. The police had claimed the conclave was organised by people with alleged Maoist links.

Following Stan Swamy’s death, his lawyer Mihir Desai had told the Bombay High Court that although the tribal rights activist was arrested by the NIA on October 8, the central agency did not seek his custody for interrogation and the next day sent him to judicial custody in Taloja Central Jail, where he remained until he was shifted to a private hospital on May 28, where he died after a little over a month.

The family members and friends of the accused in the Bhima Koregaon-Elgaar Parishad case had earlier called the death of Swamy “an institutional murder” and said that they fear the health and lives of others lodged in jail. The NIA and the state had in fact conspired to kill him is evident from the fact despite his age and vulnerable condition, Swamy was denied medical bail. The NIA court deemed that his health condition was “outweighed by the collective interest of the community”. There is clearly a huge difference between what the “community” perceives as being in its collective interest and what the prison authorities and judicial establishment perceive as being in the “collective interest of the community”. Name of Father Stan whom the state accused of waging war against it and held captive for nearly a year has been added to the list of 52 tribal martyrs.

In a statement the UN Special Rapporteur Mary Lawlor said Father Swamy’s case should remind all states that human rights defenders and all those detained without sufficient legal basis, should be released. Lawlor said the death in custody of Catholic priest Swamy, “a renowned human rights and social justice advocate for over four decades, will forever remain a stain on India’s human rights record. There is no excuse, ever, for a human rights defender to be smeared as a terrorist, and no reason they should ever die the way Father Swamy died, accused and detained, and denied his rights”.

The clarification of the ministry of external affairs that came after his death has been most disgraceful. It said; “Swamy was arrested and detained by the National Investigation Agency following due process under the law. Because of the specific nature of charges against him, his bail applications were rejected by the courts. Authorities in India act against violations of law and not against legitimate exercise of rights. All such actions are strictly in accordance with the law”. If the MEA is sure that he was a terrorist and was working against the interest of the country, why it did not file chargesheet and prosecute him?

The mandarins of the MEA must feel ashamed. They ought to do some introspection; whom were they trying to shield? The Civil society organisations were right in urging US to designate India as a ’country of particular concern’. The government’s targeting of social and political activities and crackdown on free speech cannot be viewed in isolation as escalating nationalism threatens to undermine India’s longstanding oath to democratic values. The social activists must undertake the unfinished task of Father Stan Swamy

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