As lawyer Mihir Desai was arguing on the bail application of Stan Swamy lying on ventilator support in the Holy Family Hospital, news came in that he was no more. This frail, old priest succumbed to cardiac arrest caused by pulmonary infection, Parkinson’s disease and post-Covid-19 complications. The jail authorities had allegedly denied him medical care for more than 10 days since he contracted Covid-19, courts had thrice denied him bail in nine months of judicial custody and the investigation agency never asked for his custody but kept him jailed for nine months. So the lawyer is justified in demanding an investigation into the whole process that failed a life.
The tragic death in custody of a frail 84-year-old citizen suffering from Parkinson’s disease, founder of Bagaicha (Garden), a Ranchi-based organisation that works for tribals and downtrodden, has shook the civilised conscience of the world. His death raises some pertinent questions to investigative authorities (police and NIA) which have shown impunity towards fundamental principles of country’s criminal justice system and also to those judges who remain in complete disconnect with human rights and its established practices to be using laws like UAPA, NSA, AFSPA, etc, in most casual and blasé ways. At this point in India›s history, leaders in Parliament should stop juggling word-wars and try to reach out to ethics embedded in law and institutions of criminal justice. There is much to introspect on how India sank to a rank as low as 75thout of 100 nations in 2019 and has only partly recovered to 67th in 2021 in the Freedom House Report on ‘Freedom in the World’.
Two basic shields are provided to citizens against state arbitrariness in the administration of the criminal justice system. These shields are preventive measures that thwart oversights of ill-equipped investigative agencies leading to incidents such as the tragic death of an 84-year-old Stan Swamy. First shield is a legal doctrine that ‘bail is a rule, jail is an exception’, laid down by the Supreme Court of India in a landmark judgement of State of Rajasthan vs. Balchand alias Baliya (AIR 1977 2447). Second is an outcome of Anglo-American legal culture of presuming an accused to be innocent until proven guilty which has been substantiated by several judgements of higher judiciary in which one of the most famous of Blackstonean maxim shines out to remind the judges that, “[I]t is better that ten guilty persons escape, than that one innocent suffer.” While we associate the first shield with Justice V. Krishna Aiyer, who based it on Fundamental Rights guaranteed by the Constitution of India, we have found its enlightening analysis in Glanville Williams’s The Proof of Guilt (1963), one of the greatest juristic works on criminal law.
Stan Swamy had been questioning the dragging pre-trials of 72 youths lingering in jails, mostly SC/ST arrested for alleged Left-wing extremism. In 2017 he filed a PIL in Jharkhand High Court against such a big arrest from just one district, West Singhbhum. He was continuously asking for the implementation of the Fifth Schedule which gave some administrative autonomy to the tribes inhabiting these areas. Para 4 of the Fifth Schedule provides for establishment of a Tribes Advisory Council (TAC). This is seen by many to have put Swamy under trouble as implementation of the Fifth Schedule would have prohibited or restricted the transfer of land, or regulated the allotment of land to members of tribal communities and also restrained the conceitful eye of the money lender on tribal property and life. It also restricted the Governor’s discretion by making it necessary for him to consult TAC before formulating any law or rules for the area.
Perturbed by arbitrary detentions of many young people by the police on flimsy grounds, Swamy had insisted that a court-monitored investigation should be immediately undertaken in all districts of Jharkhand so that tribal poor may live a life of safety. An FIR was registered against him at the Vishrambaug police station, Pune, for inciting people through his inflammatory speeches leading to caste violence during Kabir Manch-sponsored Elgar Parishad at Shantivarwada in December 2017. Three years after the FIR, on 8 October 2020, he was arrested but now it was the NIA that led the terrorist charges against him. Two days before his arrest, Swamy linked his arrest to his dissent against government policies. Swamy was flown to Mumbai against repeated pleas that his comorbidities and Parkinson’s disease make him more vulnerable to Covid-19 infections during travel. He was produced before the NIA court the next day on 9 October, and sent to judicial custody till his death on 5 July at a private hospital where he was shifted in his last few days on orders of the court. During these nine months he had thrice filed for his bail but was each time rejected by the court. Interestingly, NIA had never sought his custody even for a day but this frail Jesuit priest remained in custody and had to undergo some of the most inhuman conditions perpetrated by an unpardonable jail administration, which is known to be sneaking mobiles to criminals inside but took fifty days and a court order to provide a sipper and a straw to a Parkinson’s patient to drink water with.
This whole case of Stan Swamy brings out demoralising facts from the crevices of our crumbling criminal justice system to which he was probably the oldest victim charged with terrorism under UAPA 1967. Herein, on a contrary note, bail comes as an exception. From the early decades enlightened judges have maintained that the accused person is entitled to bail as a norm. In Maneka Gandhi’s case (1978 (1) SCC 248), Art 21 requires a fair, just and equitable procedure to be followed in criminal cases and which bestows some rights to the accused as well. The Supreme Court in AIR 1962 SC 605 has even observed that “the alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under Section 105 of the Evidence Act is more imaginary than real” and so in Rishi Kesh Singh And Ors. vs The State (1970) it was established that if a doubt is created in the mind of the court that the defence of the accused might reasonably be true, a resultant doubt would accrue about the commission of the crime and hence the guilt of the accused. So the accused should be acquitted as a practice. Yet the NIA insisted that the 83-year-old was taking “undue benefit” of the pandemic and that the pleading about his medical condition was “merely a ruse” to obtain interim relief. On the second 31-page bail plea filed on grounds that no purpose was being served to keep a sick person in custody who is not even a flight risk was rejected again. On rejecting Swamy’s third bail plea of March this year, the court said that his grounds for seeking relief such as old age and sickness “were outweighed by the collective interest of the community”.
How was Swamy kept in judicial custody even without conviction? The government data that one can find in 2016-17 records more than 69% of inmates lodged in jails across the country are under trials. The jails in India have a capacity of 380,876 only but they are stuffed inhumanly by 14% more inmates to 433,003. This leads to a serious crisis of toilets, drinking water, infections, clean food and beds. There are absolutely no WC and washroom facilities for the elderly who crawl and crumble inside jails with a failing memory and yet to be told where they went wrong. This is the picture of our criminal justice system that provokes the UN, EU and other international agencies to come heavily on our government. If the government tries to silence them, it would only prove its impunity, if it reforms, it can at least wash some blood on its hands. Glanville Williams writes that “the sad thing is that there has never been any reason or expediency for these departures from the cherished principles (of criminal law); it has been done through carelessness and lack of subtleties”. So Stan was prophetic in his last words, that “what is happening to me is not something unique happening to me alone. It is a broader process that is taking place all over the country… I am not a silent spectator, but part of the game, and ready to pay the price, whatever be it”. The government should capture these feelings and revisit the country’s criminal justice system with honesty, commitment and fair understanding.
The author is president, NDRG, and former Professor of Administrative Reforms and Emergency Governance at JNU. The views expressed are personal.
The government data that one can find in 2016-17 records more than 69% of inmates lodged in jails across the country are under trials. The jails in India have a capacity of 380,876 only but they are stuffed inhumanly by 14% more inmates to 433,003. This leads to a serious crisis of toilets, drinking water, infections, clean food and beds. There are absolutely no WC and washroom facilities for the elderly who crawl and crumble inside jails with a failing memory and yet to be told where they went wrong. This is the picture of our criminal justice system that provokes the UN, EU and other international agencies to come heavily on our government.