Stan Swamy’s death has raised a very pertinent issue. What should be done if an octogenarian is languishing in jail and is unwell to take care of himself? Should bail be given to him automatically despite the grievousness of the crime even if he is detained under a law that does not provide for bail? The policymakers and the judiciary will have to take a reasonable stand on this without undermining the determination of the state to get the guilty punished.
Rather than talking of the issue in general terms, the Left-liberal cabal is posing as if Stan Swamy’s death due to post-corona heart attack was due to high-handedness of the state. Some have even called it “murder by the state’ as if the state was interested in getting rid of him. Congress leader Shashi Tharoor has said that “our government could not treat him with humanity”. CPM general secretary Sitaram Yechuri has termed this “a murder”. Jairam Ramesh said, “Make no mistake, it is the Indian state that has killed Fr. Stan Swamy”.
While Indian culture does not permit criticising a person after his death, the way anti-Modi camp is trying to weave a narrative of the state being callous is appalling. The image of a 84-year-old Jesuit priest being hounded by the state and giving him the most unfair treatment makes a strong anti-state narrative and it suits the anti-Modi camp at a time when they are increasingly getting sidelined in the national narrative. They are doing politics over a dead body in the most callous manner.
Facts would prove that the state was very fair to Fr Stan Swamy despite the chargesheet being filed by the NIA of his involvement in incitement of caste conflict at Bhima Koregaon in 2018. To imagine that the state would consider him an enemy is laughable. But if your involvement is found to be established what can the state do. There is no law in the country that says that a person be treated differently based on his age or sex, except in the case of juveniles.
His lawyer Mihir Desai told the court that he was surprised that no custodial interrogation was carried out. The very fact that the NIA decided not to do so with a person suffering from Parkinson’s disease and other ailment shows that they were sympathetic to his state but had enough evidence to file a chargesheet for justice in the case. The NIA had already interrogated him for hours in July, two and a half months before his arrest.
The NIA charged him with being a Maoist sympathiser and helping Maoists in “accomplishing” the agenda of the banned organisation in the garb of working for tribals. Stan Swamy was the convenor of the Persecuted Prisoners’ Solidarity Committee (PPSC), an outfit of the CPI (Maoist). He received money to organise activities of the banned Naxal organisation including military training.
In its affidavit, the NIA told the Bombay HC that it had evidence of Father Stan’s “direct involvement in the deep-rooted conspiracy having a direct bearing on the Elgar Parishad incident” in 2018. We may recall that the annual celebration (called Elgar Parishad) celebrated on 1 January 2018 in Bhima Koregaon (in Pune) had turned violent.
This was the 200th anniversary of the Bhima-Koregaon victory of the British army over the Marathas. A few hundred Mahar soldiers fighting under the British command had defeated the mighty Maratha (Peshwa) army. The East India Company had erected a victory pillar there to commemorate this victory and inscribed names of Mahar soldiers who had died. Some Dalit organisations extol this as a victory of Dalits over the upper castes and celebrate this day.
On that day in 2018, extremely provocative speeches were made followed by violent clashes between Dalits and Maratha groups. One person was killed and several were injured. Police investigation found out that the Elgar Parishad was funded by the Maoists. The meeting was organised with “inspiration, money and directions” from Maoists, the police have charged.
The most sensational of the charges has been that some Maoist leaders were “conspiring to kill the Prime Minister and had planned on procuring arms and ammunition with an intention of waging war against the country”. Imagine there was a plot to assassinate Prime Minister Narendra Modi. The court had accepted the contention of the prosecuting agency that there was a deep-rooted conspiracy.
Before we make any conclusion, one must not forget that the CPI (Maoist) is a banned terrorist outfit since 2009. In 2006, then Prime Minister Dr Manmohan Singh had described Naxalism as the single biggest internal security threat. It was the Congress-led United Progressive Alliance (UPA) government that banned the organisation in 2009 under the Unlawful (Activities) Prevention Act (UAPA) after terming it a terrorist organisation.
The National Investigation Agency, which is mandated to investigate such cases and has acquired credibility of its investigation process, filed a supplementary 10,000 page chargesheet in October 2020 and named eight people as key accused including Dr Anand Teltumbde, Gautam Navlakha, Hanybabu Musaliyarveetil Tharayil, Jyoti Raghoba Jagtap, Sagar Gorkhe, Ramesh Gaichor, Milind Teltumbde and Father Stan Swamy. Although this was the first chargesheet by the NIA, two separate chargesheets were earlier filed by the state police. The NIA had taken over the probe from state police in January.
These eight accused were charged under various Sections of the IPC for criminal conspiracy, waging war against the state, and Sections 13, 16, 17, 18, 20, 38, 39 and 40 of the UAPA. The NIA arrested 83-year-old Stan Swamy from his residence in Jharkhand in the first week of October.
He was lodged in Taloja Central Jail in Navi Mumbai (Maharashtra). His interim bail plea was rejected earlier in October 2020. The Additional Sessions Court Judge rejected his bail on merit as well as on medical grounds in March 2021. In May the Bombay High Court offered him treatment in either a government or a private hospital but Swamy did not relent. He said “I would rather suffer here”.
On directions of the Bombay High Court at a special urgent hearing on 28 May, Swamy was moved to the ICU of Holy Family Hospital where he tested positive two days later. The High Court ordered appointment of a constant attendant to carry out his daily task. The NIA had argued that Swamy be shifted to government run JJ Hospital but the court allowed private hospital.
On 3 July, the High Court had said that it would hear the bail plea on 6 July and Swamy till then could stay in a private hospital where he was admitted. On 5 July when the court said that it would hear the matter on 6 July, the doctor from the hospital told the court that Stan Swamy had died due to cardiac arrest.
Knowing this timeline is essential to understand the chain of events and how the state and the courts responded. This is also essential to understand the animated criticisms being launched by vested interests. They are the same people who oppose the Modi government and are not much bothered about arguments or facts.
There would hardly be anyone who would not sympathise with Stan Swamy because of his precarious situation and the circumstances of his death. But to say that the state was callous or had identified him to torture him is not palatable. The state was merely carrying out its duty to take the crime to its logical conclusion. If a person is held under the UAPA after such a thorough investigation, he can be exonerated only through a judicial process.
Activists and human rights experts have made it appear as if the state was against Stan Swamy. The image of a frail 84-year-old makes a good image for them to make another attempt to malign the Modi government at the Centre. The Central government has clarified that Swamy was detained through a due process of law and due to the specific nature of crime against him. The case against him and many others came after a thorough investigation by a professional agency.
Clarifying the matter further on the issue of human rights, the MEA spokesman said: “India’s democratic and constitutional polity is complemented by an independent judiciary, a range of national and state level Human Rights Commissions that monitor violations, a free media and a vibrant and vocal civil society. India remains committed to promotion and protection of human rights of all its citizens”.
Some activists have gone ahead and criticised even the courts for not giving bail. Despite their best legal acumen, they could not see that it is extremely difficult to get bail if crime is framed under the UAPA. Sadly, courts don’t make distinctions on the basis of age or failing health. To say that the court was not human is not correct. When the seriousness of the issue of Swamy’s failing health was highlighted, it ordered hospitalisation in a private hospital.
One can cite the Delhi High Court judgement in the North East Delhi riots in which it granted bail to three activists who were detained under the UAPA. On appeal, the Supreme Court held that this should not become precedent. The court was worried that this had the possibility of turning the entire UAPA upside down and may persuade other UAPA accused to demand bail. The apex court also objected to the High Court trying to question the UAPA rather than limit itself to the plea on bail.
Solicitor General Tushar Mehta’s argument before the Supreme Court may help us understand the issue. He asked: “If some bombs are planted, and defused, will the intensity of the crime be less?” He argued that the right to protest does not include the right to kill people, and plant bombs. He pointed out that 53 people were killed in the riots including many policemen and close to 700 people were injured. The main argument is instigation to violence should not be judged on the basis of result but the potential to create conflict. And what should the state do if there is concrete evidence to substantiate that?
The state had nothing personal against activists who happen to be students. It is the crime that is important and the state is duty bound to protect the society from such crimes and to prevent loss of lives and property. In a society like ours, people need to be very careful that their actions don’t lead to violence and crime against the state. The state does need some stringent laws to bring accountability for loss of innocent lives.
Based on these developments and understanding one can say that the state had nothing against Stan Swamy but the crime for which he was charged with could not be condoned. Banned Maoist organisations that have vowed to bring bloodshed in rural areas, overthrow the state using armed rebellion and are trying to poison campuses in urban areas cannot be tolerated. Those who hobnob with such organisations must understand that they are playing with fire.
The state’s empathy or humanness should be judged on the basis of whether a person was given medical facility or not or was he singled out for denying such facilities because the state concluded one to be the enemy of the state. Stan Swamy was given attendants to tend to him and given medical facilities when needed. The activists are making fun saying that he was not given a sipper when asked. There could be bureaucratic delay and this may not have been due to apathy but the system created over a long period of time.
While one has sympathy for a man incarcerated despite his failing health, one cannot sympathise with the crime. One can always argue that the crime was not proved. True, but he was not singled out for such a treatment. Those in Opposition who are crying hoarse should know that the provision to make the UAPA more stringent was brought by the Manmohan Singh government in December 2008. Even the NIA was set up the same year. The context was the Mumbai terror attack on 26 November 2008 and the national realisation that a strong terror law was needed.
Arguing against the UAPA, which had a mandate of the entire Parliament, is a different issue than arguing for leniency for an ailing 84-year-old man. Sadly, such are not the reasons the courts have accepted as reasonable grounds. If you open Pandora’s box, this will bring similar bail applications from all UAPA detenus. Health ground could be a vexatious ground. So, the best way is to give the best medical treatment. Did the court not allow that? Was there a delay in that? Was the delay deliberate? These are the grounds that should be discussed if one has to assign motives to agencies of the state.
Prison undertrial, incarceration in sub-human jails are issues of larger human rights and society must work to improve the situation. To sink with the concept of human rights, prison reform is needed. For this a separate campaign must be launched. Indian prisons need to be more human and must serve the purpose of punishment which is purgation and transformation and not torture. But to single out Father Stan Swamy as victim of the state’s selective high-handedness is not true.
One only hopes that his death will help improve our justice system and will not be used as a tool to settle political scores. The moment one attempts to do the latter, the whole agenda would get derailed. The country does need better prisons and better medical facilities for prisoners. And one should always think of those who are languishing in jails as prison undertrials without a lawyer to defend them or to bring their cases before the court.
The writer is the convener of the Media Relations Department of the BJP and represents the party as a spokesperson on TV debates. He has authored the book ‘Narendra Modi: The Game Changer’. Views expressed are writer’s personal.
