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Mainstream, VOL LIX No 30, New Delhi, July 10, 2021

Death of Fr Swamy has thrown open many Constitutional questions in public domain that look for answers from the authorities | Arun Srivastava

Friday 9 July 2021

by Arun Srivastava

Who is guilty — Father Stan Swamy or those who kept him behind bars? These are not the only two questions that need a reply from the authorities. Swamy died in the NIA custody, but he has left behind a number of questions that haunt the common people. The primary question is why he was arrested, what was the nature of the crime for which he was made to languish in the prison. People rightly describe his death as the institutional death.

The most relevant and important question that has been haunting the common law abiding citizens of the country is whether the executive diktat is superior to the constitutional authority of the Supreme Court. His death has also exposed the fallacy of the argument that Supreme Court is the real legal authority. Questions are also asked who was interested in his death? Why he was not granted bail? Why the NIA every time objected to his bail?

UAPA under which Swamy has been imprisoned by the NIA is a pan-India legislation, so obviously any judgment on it will have pan-India implications. In this backdrop one question that constantly exasperates is, why the highest judiciary has not been exercising its constitutional right to review it. Is it that the executive rule is above the Constitutional right of the judiciary? Why courts avoid questioning the draconian and unconstitutional provisions of this law. It is common sense that if an accused cannot be granted a speedy trial then he is entitled to bail. The Advisory Board of UAPA cannot be the final word or arbiter of a person’s guilt.

It is high time our judges feel the pulse of the people and should understand the wishes of the public. After all justice and judicial system is for the people and not only to serve the political institutions and politicians. The judiciary would do well to remember that all great legal and social reforms have been driven by the people not by the governments. The fact is the UAPA is a repressive law meant to terrorise and torture the people. It is clearly borne out the fact that NIA has not succeeded in proving its charges in 98 per cent cases. To appease its bosses the NIA officials frame the people and keep them in prison.

What prevents Supreme Court from abrogating the UAPA or putting it under scanner that is too at a time when the NIA is misusing the provisions to appease and serve the political interest of their masters? Judges need to step out of their studies and chambers and smell the stench of repression and torture let loose by the organisations like NIA, see the demolition of the edifice of criminal justice system.

While not interfering with the bail granted to the three student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha in the Delhi riots and “conspiracy” case, the Supreme Court had, on June 18, 2021, effectively stayed the Delhi high court order on Unlawful Activities (Prevention) Act. It is indeed shocking to comprehend why the apex court said that the order in the case of three students should not be treated as precedent. The court had no option but to confirm the bail or to act otherwise. But what we see that it has not been objecting to legitimising of the lawlessness by the state and to throw all legal principles to the winds.

Recently the chief of the SC Bar Council Dushyant Dave had quoted the CJI Ramana; “The judiciary is besieged by inherent and fundamental challenges. Millions of pending cases, quality of judges and their decisions, organisational issues and its integrity and impartiality, need urgent attention. Yet, in the last two decades precious little has been done. Justice is eluding the common man, including the vulnerable sections of society as Justice Ramana observed.”

Swamy will no more be present to move a bail petition and bother the judges to spare their precious time to listen to his sufferings. He is a liberated soul. It is for the Director of the NIA to undertake some extra amount of pain to locate his soul, whether it is in hell or heaven, to produce him before the court for being convicted for the crime he never committed in his life.

One thing is for sure that in his death the truth and the criminal justice system of the country have become the worst victims. How could the gentlemen sitting on the bench believe all the allegations and charges levelled against him and took it as Holy Brahma’s edict. It has been widely known from the beginning that the NIA has been telling lies and fabricating false charges. Sitting on the bench does not mean that the individual should keep aside his sensibilities and subscribe to the lies being put forward by the vested interest.

The entire world knew that Stan was implicated in false and fabricated charges except the judiciary. Stan is not the only person who became the victim of careless attitude of the judiciary, there are number of intellectuals and academics who are awaiting their death due to the averseness of the judicial system. IN fact almost all the accused persons implicated by the NIA in Koregaon case are awaiting the day of their eternal liberty and emancipation.

Stan’s case was raised not only by Mary Lawlor, U.N. Special Rapporteur on Human Rights Defenders, it was shared by Eamon Gilmore, EU Special Representative for Human Rights, who said the European Union had been raising the case of Fr. Stan Swamy “repeatedly” with the Indian authorities. But the Indian rulers were so obsessed with their mission that they preferred to ignore his views. Lawlor had observed; “The news from India today is devastating. Human Rights Defender and Jesuit priest Fr. Stan Swamy has died in custody, nine months after his arrest on false charges of terrorism. Jailing Human Rights Defenders is inexcusable”. Only on Sunday she had expressed concern about the deteriorating health condition of Fr. Stan Swamy. She had described the charges against the Jesuit priest as “unfounded”.

Justice Shinde of the Bombay HC who was to hear the bail application on Monday observed; “We are shocked…we have no words to express. We are sorry to know that despite your (the hospital’s) best efforts, Father Stan Swamy is not with us”. Swamy had physical problems was known to the judiciary. The day he was produced before the special court in Mumbai for the first time, his legal team submitted that he could not even sign the vakalatnama, as his hands shook due to Parkinson’s disease. Eventually, his thumb impression was taken.

A group of Nobel laureates, European Union parliamentarians and human rights activists had demanded the release of Fr Stan Swamy and the rest of the prisoners who were arrested in Bhima Koregaon Case. The lies of NIA were exposed on many occasions. In fact in February this year compelling evidence emerged to discredit the letters that form the foundation of the case by the National Investigation Agency. But shockingly the judiciary did not take cognisance of that. They also said; “While we grieve at the passing away of Father Stan Swamy, we unequivocally hold the negligent jails, the indifferent courts, and the malicious investigating agencies firmly responsible for his unfortunate death,” the statement said.

The 84-year-old Jesuit priest had been arrested in October for being part of a conspiracy to instigate caste violence in Bhima Koregaon village near Pune in 2018. The death of 84-year-old Father brings to an end a stark tale of injustice that has left India’s justice system diminished. The RSS and BJP also described Stan as an Urban Naxal and Maoist activist. They charged him under the Unlawful Activities (Prevention) Act (UAPA) and also implicated him as a conspirator in the Bhima Koregaon case.

What a paradox the person who fought for the rights of the tribals and opposed usurping of their lands and properties by the corporate houses, was charged with being involved in a conspiracy to destabilise the Modi government which NIA could never prove the judiciary.

He was aware of the fact that NIA will kill him inside the jail. In his last appearance, via video-conference, before Bombay High Court on May 21 he described how his stint in Taloja jail had further weakened his already ravaged body. “I will probably die here, very shortly if things go on as it is”, he said, asking to be allowed to return to Ranchi on medical bail. Really surprisingly the Bombay High Court did not find time to begin hearing the second of Swamy’s bail pleas filed on merit. During his nine months of incarceration, till his death, the ailing activist came up against the heavy hand of the state, an unresponsive judiciary and a broken prison system.

NIA’s design was manifest in its unwillingness to offer him even a sipper and a straw as Parkinson’s disease had made it impossible for him to drink water from a glass. The court adjourned the case for three weeks. NIA opposed four bail pleas that Swamy filed, first in the special NIA court, and later in Bombay High Court. When Swamy asked the special court for bail on the grounds that an overcrowded prison would make him more vulnerable to the coronavirus, the NIA replied that “the accused under the garb of the current situation on account of the global pandemic Covid-19, is trying to take an undue benefit of the situation…” And yet, in all these months, the NIA did not seek a day’s custody to interrogate Swamy.

A statement by family members and friends of the accused in the Bhima Koregaon-Elgar Parishad case has described the death of Father Stan Swamy “an institutional murder” and said that they fear the health and lives of others lodged in jail. They said “This is not a natural death, but the institutional murder of a gentle soul, committed by an inhuman state. Having spent his life amongst the Adivasis in Jharkhand, fighting for their right to resources and lands, Father Stan did not deserve to die in this manner, far from his beloved Jharkhand, falsely imprisoned by a vindictive state,” the statement says.

Since apprehensions have been expressed of a possible murder, it is in the interest of the credibility of the judiciary that it must order a probe. People nurse the view that other intellectuals and academics who are in prison for nearly two years may face the fate of Swamy. Many of them above the age of 60, have chronic ailments. So far, only 81-year-old Varavara Rao has been granted bail on medical grounds that is too for only six months.

Their ordeal must end immediately. The judiciary must grant bails to intellectuals and academics Hany Babu, Sudha Bharadwaj, Sudhir Dhawale, Arun Ferreira, Surendra Gadling, Ramesh Gaichor, Vernon Gonsalves, Sagar Gorkhe, Jyoti Jagtap, Gautam Navlakha, Mahesh Raut, Shoma Sen, Anand Teltumbde and Rona Wilson. The NIA has been investigating the cases against them for months. Now the judiciary must bring to an end the dirty game of NIA. The only tenable reason for keeping them in jails is, the RSS and BJP desires to discredit and break the moral of the secular and democratic forces and individuals. These people seek justice for India’s most marginalised citizens through the rights granted to them by the Indian Constitution.

It was for the courts to decide if Swamy was really guilty of the grave charges. It must order a probe to unearth the truth. It was for the NIA to prove its case against him. Narendra Modi and his lieutenant have become suspect in the eyes of the people. It is a known fact that Modi government had abruptly transferred the case to the NIA as soon as the Shiv Sena-NCP-Congress government in Maharashtra declared its intention to review it. Question arises why Modi transferred the case to NIA? Incidentally Congress and NCP had even publicly objected to Uddhav’s decision to give consent to the NIA to take over the case.

It would not be an exaggeration to say that judiciary, especially the lower courts have been flouting the Supreme Court’s dictum of bail as ’rule’ and jail as ’exception’. If this has been followed then probably Stan would not have died. Former justice Madan B. Lokur rightly observed that Swamy’s death was ’very unfortunate and tragic’. It is irony that SC’s dictum is breached more than honoured by the lower courts, as was evident in the case of Father Stan Swamy. A law cannot really be classified as a “law” unless it imbibes within itself the ideals of justice and equity. Laws must be clear and accessible and the people at least ought to know what the laws are.

After the international fraternity started questioning and condemning the NIA and the government about the death of Swamy, the external affairs ministry came out with the explanation that the arrest and detention of Father Stan Swamy had been made by following the “due process” of law and that India remained committed to the protection of the human rights of all its citizens. But it did not spell out what were the charges, why he was arrested and why the charges were not made public. On every occasion the government claimed that the case was under investigation.

According to Stan Swamy, he was interrogated by the NIA for about 15 hours between July 25 and August 7, 2020. On September 30, 2020, he was summoned to attend the office of the NIA in Mumbai on October 5, which he declined at short notice due to his old age (83 years) and the pandemic situation. This did not seem to deter the NIA officials, who went to Ranchi and arrested him on October 8, 2020 in connection with the Bhima-Koregaon case and lodged him in Taloja Jail near Mumbai. A charge sheet was filed against him (and others) the next day spelling out offences under the UAPA.

Interestingly, the NIA did not seek his custody but directly requested the court to remand him to judicial custody. The reason is quite obvious – he was not required for interrogation and the charge sheet against him was ready for filing and was, in fact, filed the next day. Therefore, what was the need to detain him at all? And why in Mumbai and not in Ranchi? What about his age (83 years), medical condition and so on?

The fact of the matter seems to be that the NIA did not want to examine him any further, but it seems that it wanted to punish him for some alleged offences that is too without a trial. And so, the bail application was hotly contested by the NIA and ultimately rejected by the trial court on March 22, 2021. It needs to be asked why it takes so many months to decide a bail application. Is it not possible to expedite the process considering the fact that the person seeking bail is in judicial custody? Does every under-trial prisoner have to be killed softly?

Spokesperson of the external ministry Arindam Bagchi was ague when he said: “Father Stan Swamy was arrested and detained by the National Investigation Agency following due process under law. Because of the specific nature of the 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.” Unfortunately so far the NIA has not submitted the charges.

The external affairs minister Jaishankar must realise that the people are not fool, you cannot take them for ride for long. The sordid manipulations taking place would get exposed. The apex UN human rights agency said on Tuesday that it was “deeply saddened and disturbed” by the death of Fr Stan during his pre-trial detention and urged India and other countries to release individuals detained “without a sufficient legal basis”, including dissenters.

In this backdrop it is worth mentioning what Liz Throssel, spokesperson for the UN High Commissioner for Human Rights said in Geneva; “Fr Stan had been held in pre-trial detention without bail since his arrest, charged with terrorism-related offences in relation to demonstrations that date back to 2018. He was a long-standing activist, particularly on the rights of indigenous peoples and other marginalised groups. While in Mumbai’s Taloja Central Jail, his health deteriorated and he reportedly contracted Covid-19. His repeated applications for bail were rejected. He died as Bombay High Court was considering an appeal against the rejection of his bail application” .

Throssell’s remarks and similar statements from the European Union’s Special Representative for Human Rights and the Chair of the United States Commission on International Religious Freedom make it clear that India’s frequent iterations of commitment to democracy and human rights are being measured against actions on the ground.

“UN High Commissioner for Human Rights Michelle Bachelet and the UN’s independent experts have repeatedly raised the cases of Father Stan and 15 other human rights defenders associated with the same events with the Government of India over the past three years and urged their release from pre-trial detention,” Throssell said.

It is significant to note that Stanislaus Lourduswamy alias Stan Swamy has been hailed as a martyr by fellow Jesuits. The last time a death was termed as martyrdom by the Church in India was in 2011 when catholic nun Valsa John Malamel was hacked to death in Jharkhand. Clothed in the red vestment that symbolises martyrdom for Catholics, Stan Samy was hailed as a martyr by fellow Jesuits at his funeral service in Mumbai on Tuesday.

It is worth mentioning that in 2017, Pope Francis bestowed the “decree of martyrdom” — a path to sainthood where the process is shorter than other categories — on another nun, Rani Maria, who was killed for organising landless labourers near Indore in 1995.

Swamy was not a criminal or a terrorist was borne out by the reiteration of the Jesuits; “May the martyrdom of Stan inspire and challenge us and the entire nation to recommit ourselves to take forward the legacy of Father Stan in the mission of justice and reconciliation. We offer to God the friends of Stan, the hundreds of Adivasi undertrials who languish in jails on false charges. We offer the co-accused of Stan, accused of fabricated charges and now incarcerated” .

Frazer Mascarenhas, former principal of Mumbai’s St. Xavier’s College and parish priest of the St Peter’s Church in Bandra where the Mass was offeredsaid; “He paid the price for doing his justice work. In that sense he is a martyr…. We don’t mean it in the religious context.” Stan was among 16 people arrested in the Elgaar Parishad case, which was expanded to a purge of “urban Naxals”; a term coined by RSS leaders to brand academics, lawyers and rights defenders.

Delivering the eulogy, Mascarenhas, the parish priest, said: “I like to remember him with the word he used for himself and for his friends. The word: ‘comrade’. He said ‘my comrades are important to me’. Don’t think for a while that comrade means Maoist, violent type. Nothing to do with Stan. That is absolutely a ridiculous accusation. Stan was gentle and one who loved peace. So, there is no question of violence about him. But he considered all those working for humanity, especially the deprived sections of humanity, as his comrades.”

The All India Catholic Union reaffirms this demand for a judicial enquiry, and also demands the repeal of the UAPA and such draconian laws under which thousands of people, old and young, have been put in jail and denied rudimentary justice. Feeling aggrieved by the rejection of the regular bail application as also the application for interim bail on grounds of health, Stan Swamy filed appeals before the Bombay high court. His plea for regular bail was first taken up for consideration on May 4, 2021 and was adjourned from time to time for obtaining medical reports and so on from teams of doctors. Swamy had informed the high court that when he came to Taloja Jail the core systems of his body were still functional. “But slowly there has been a steady regression of what my body’s main functions are. I could walk by myself, I could take a bath by myself, I could also write. But these functions are slowly disappearing. For eating, I’ve not been able to eat properly. Yesterday I was taken to JJ Hospital so I got an opportunity to explain what I should be given. My deterioration is more powerful than the small tablets that they give.”

Stan Swamy had told the court: No. I would not want to. I have been there thrice. I know the set-up. I don’t want to be hospitalised there. I would rather die. I would prefer this.” He is said to have added that he would like to be with his own. However, the next day, he was persuaded to get admitted in JJ Hospital, at his own cost.

The entire episode raises the question are the provisions of the UAPA more important than the provisions of the Constitution of India, particularly Article 21? Is it not possible to be more compassionate, humane, merciful and dignified, or is it that everyone must suffer indignity and disgrace at the hands of the powers that be?

The entire episode leaves behind a feeling that Stan Swamy was virtually thrust a sentence of death without charges being framed against him and without a trial. The judiciary is the primary organ which is tasked with ensuring that the laws that are enacted are in line with the Constitution. This is one of the main functions of the judiciary, that of judicial review of laws. The Supreme Court has held this function to be a part of the basic structure of the Constitution, which means that Parliament cannot curtail the same. How then the executive enacted UAPA and SC felt helpless.

Recalling the work of Father Swamy, Father Felix Raj, Vice-Chancellor, St Xavier’s University, Calcutta said, “This is a great loss to the country and the tribal community of Jharkhand in particular. He had stood by them till the end of his life. With his death, the work that he was doing for the marginalized community has come to an end. It’s sad to see a man of the stature of Father Stan Swamy being treated the way he has been. He was no criminal. He was an 84-year-old priest, working for the poor. He was denied bail till the very end of his life. He wouldn’t have absconded.”

Renowned scholars have, therefore, argued that a law cannot really be classified as a “law” unless it imbibes within itself the ideals of justice and equity. An “unjust law” might not have the same moral legitimacy as a “just law”, but it might still command the obedience of some sections of the society to the detriment of others. The first principle is that “laws must be clear and accessible”. The idea of the judiciary, as a “guardian” of the Constitution, brings me to the fourth and final principle: The presence of a “strong independent judiciary”. The judiciary is the primary organ which is tasked with ensuring that the laws that are enacted are in line with the Constitution. This is one of the main functions of the judiciary, that of judicial review of laws. The Supreme Court has held this function to be a part of the basic structure of the Constitution, which means that Parliament cannot curtail the same.

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