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Friday, 16 July 2021

Stan Swamy’s death: Representative of the worst of our criminal justice system or portent of a new norm?

 Stan Swamy’s death: Representative of the worst of our criminal justice system or portent of a new norm? 

Detailing Fr. Stan Swamy’s harrowing legal battle for bail and for survival prior to his tragic demise, and placing it in light of the health struggles faced by many of the other Bhima Koregaon accused currently in jail, VINEET BHALLA explains how their woes, at one level, represent everything wrong with the Indian criminal ‘justice’ system, but at another, could also represent a shift in what is nationally tolerable relating to the treatment of those accused in UAPA cases.

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FATHER Stanislaus Lourduswamy, better known as Stan Swamy, passed away at a private hospital in Mumbai earlier this month, awaiting trial for more than nine months since he had been arrested by the National Investigation Agency (NIA) in October last year. Was the 84-year old Jesuit priest and tribal rights activist guilty of orchestrating the 2018 Bhima Koregaon violence and being a member of the banned Communist Party of India (Maoist), as charged by the NIA?

The NIA could not prove this during the pendency of his arrest; in fact, not only had his trial not begun but he had not even been charged under any offence over the course of his imprisonment. Incredibly, throughout this period, the NIA did not seek his custody for interrogation even once. This begs the question: what was the point of his arrest?

Fr. Stan was a frail man suffering from various old age-related ailments. He had Parkison’s disease, which by all accounts got worse during the course of his detention. He also had hearing loss in both his ears, and had recently had a surgery.

It sounds prima facie absurd that a physically debilitated senior citizen of unimpeachable credentials is kept under arrest, thousands of kilometres away from his home, for the better part of a year, during a pandemic, without bail, without any trial, without being charged of any offence, without even being questioned about the crimes he was accused of committing. There is no ‘justice’ in a criminal justice system that allows that to happen.

Also read: Demise of Father Stan Swamy Marks Death of India’s Conscience

The cruel ordeal of the last nine months of Fr. Stan’s life

Fr. Stan was arrested from his home in Ranchi by the NIA on October 8 last year and booked under the stringent Unlawful Activities (Prevention) Act (UAPA) for allegedly fundraising for the CPI (Maoist) through the Persecuted Prisoners Solidarity Committee (PPSC), an organization he had co-founded with lawyer and activist Sudha Bharadwaj, another person accused and under detention in the Bhima Koregaon case.

He had applied for interim bail on medical grounds soon after, which was denied by an NIA court on October 23.

He was forced to apply to the NIA court to even get access to a sipper and straw to help him drink water (due to Parkinson’s, he had trouble holding tumblers still). Rather than immediately allowing his plea, the court gave the NIA 20 days to respond to his plea, before, maddeningly, rejecting the application for being “devoid of merit”. (When one wonders why there is such a high judicial backlog in India, remember that it is because these are the kind of complex matters courts are spending their precious time poring over and adjudicating!)

He had to file a fresh application to the court seeking permission for a sipper and warm clothes, which the court again adjourned for a week. It required a visit from the Inspector General of Police (Prisons) to finally secure his demand, 50 days after his arrest, in December.

He wrote to his friends about how he felt cold and requested for a sweater, socks and a blanket. However, when these items were sent for him, they were not permitted to be given to him inside the prison.

Under the second phase of India’s COVID vaccination drive, all citizens above the age of 60 were eligible for vaccination. However, Fr. Stan was not vaccinated by jail authorities.

In November, Fr. Stan sought regular bail, on both medical grounds as well as lack of merit in the case against him. On March 22 this year, the NIA court rejected his bail application again.

On April 26, Fr. Stan appealed against this order before the Bombay High Court. The High Court ordered the Maharashtra government to file his medical report on May 15 and postponed the hearing of the matter till after the court’s summer vacation. His lawyers pressed for urgent hearing of his plea on grounds of his rapidly deteriorating health, in response to which the High Court ordered the prison authorities to get a health check-up for him conducted at the state-run JJ Hospital.

On May 21, appearing before the High Court via video-conferencing, a visibly harangued Fr. Stan refused to be admitted into any hospital and pleaded for interim bail so that he could return to his home in Ranchi for what he admitted were his dying days. He informed the court of his ailing health, stating that he couldn’t walk or eat properly.

On May 28, the High Court directed that Fr. Stan be shifted to the privately run Holy Family Hospital in Mumbai. Two days later, he tested positive for COVID-19. On June 17, the High Court extended his hospitalization till July 5, in view of his critical health condition.

It is pertinent to note here that at each stage, the NIA vehemently opposed each of Fr Stan’s pleas, even though it did not seek his custody for interrogation for a single day through his incarceration. In the absence of a pending trial or even charges being framed against him, it is unclear why the NIA was apprehensive about releasing him on bail and insisted on keeping him incarcerated.

On July 2, he mounted a legal challenge to Section 43D(5) of UAPA, before suffering a cardiac arrest on July 4, and passing away the next day.


Failure of systems

One may look at this timeline of his incarceration and call it a testimony to the heartlessness and lack of compassion of our judicial system, and of the failure of proper implementation of our criminal laws.

After all, under Section 437(1) of the Criminal Procedure Code, 1973 (CrPC) a person detained as an accused of even the gravest of offences can be released on bail on grounds of sickness and infirmity.

Section 437(2) also provides for release on bail, on the execution of a bond for appearance before the court, if “there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but … there are sufficient grounds for further inquiry into his guilt.”

Additionally, Section 41A of CrPC provides for an alternative to arresting a person “against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence”. As per this provision, the police may simply issue notice of appearance to such an accused person as and when necessary for purpose of investigation.

It is noteworthy that there has been no solid proof furnished by the NIA in court to prove Fr. Stan’s guilt yet, which is why the charges against him, or anyone else arrested in the Bhima Koregaon matter, are yet to be framed. After all, if the NIA has credible evidence available against all the accused persons, would it not wish to conclude the trials against them as soon as possible so that it can lay the matter to rest?

At one level, Fr. Stan’s ordeal is a reflection of what has, unfortunately, become the norm in our criminal justice system. At another level, though, it may signal a chilling shift in the publicly acceptable standard of treating political prisoners.


The harsh reality of the state of our prisons

It is an established legal principle that every person accused of a crime is presumed to be innocent till they are convicted for that crime in a court of law.

About 7 of every 10 persons lodged in prisons in India comprise of such ‘innocents’, that is, undertrials who haven’t been held guilty of the crimes that they stand accused of, as per the National Crime Records Bureau’s (NCRB) Prison Statistics Report from 2019. 2019 wasn’t an aberration either, because the average proportion of undertrials within India’s total prisoner population has been 66.97% for the last fifteen years.

As per NCRB’s Prison Report, at the end of 2019, more than 3.3 lakh undertrials were imprisoned in Indian jails. Of these, 44,135 undertrials (13.35% of total undertrial prisoners) had been in detention for one to two years, 22,451 undertrials (6.79% of total undertrial prisoners) had been detained for two to three years, 14,049 undertrials (4.25% of total undertrial prisoners) had been detained for three to five years, and 5,011 undertrials (accounting for 1.52% of the total undertrial prisoners) were confined for more than five years. In all, over 25% of all undertrials in prison at the end of 2019 had been incarcerated for over a year.

The report details that the number of undertrials within Indian prisons has been steadily increasing over the last few years, as has been the occupancy rate of prisons. The latter rose from 115.1% by the end of 2017 to 118.5% by the end of 2019. The corresponding figure at the end of 2019 for Maharashtra, where Fr. Stan was jailed, is 152.7%.

In other words, we continue to incarcerate an increasing number of undertrials each year, even though our prisons are out of space.

The right of persons accused of crimes to speedy investigation and trial, read into their fundamental right to life granted by Article 21 of the Indian Constitution by the Supreme Court in its judgment in the case of Vakil Prasad Singh vs. State of Bihar, 2009 (3) SCC 355. The above data reveals that this right still remains a chimera for the lakhs of undertrial prisoners languishing in our jails.

It is the injustice meted to such undertrial prisoners, those damned and forgotten by a callous society and insensitive legal system, which Fr. Stan dedicated his life to, and for which he was “ready to pay the price, whatever be it”. Unfortunately, the price that the system exacted would be his life.

Fr. Stan’s custodial death may be the most publicized one in recent memory, but it is far from an aberration. As per data about custodial deaths in the Prison Report, 1,775 prisoners died in custody in 2019. This was down from 1,845 custodial deaths in 2018 but is still more than the number of such deaths in the preceding four years.

It is not stated in the report how many of the prisoners who died were undertrials; however, since most of the prisoners are undertrials, it follows that at least a significant proportion of deaths would be of undertrial prisoners as well.

A handful of undertrial prisoners are dying in jails on average every day, without any media attention or scrutiny, their names are forgotten, with no outrage that they should justifiably cause.

A large percentage (nearly 87%) of these deaths in 2019 was due to ‘natural causes’. However, a closer look at the data reveals that 1,466 (82.5% of all custodial deaths) were due to ‘illness’. This category comprises all forms of aliments, with heart and lung conditions specifically contributing to over 44% of such deaths.

This is not the least bit surprising when considered in light of another revelation in the report that of the sanctioned strength of 3,320 medical staff in Indian prisons, only 1,962 posts, which amounts to barely 59%, were actually filled up at the end of 2019.

This indicates a lack of adequate health facilities in our prisons, something which assumes even greater significance in light of the pandemic.

Also read: Tragic death of Stan Swamy is a wake up call for reforms in India’s prisons and criminal justice system

How the health of Bhima Koregaon accused has declined during their imprisonment

Indeed, when Fr. Stan had applied for medical bail in October 2020 soon after he was arrested, he had contended that Taloja Jail had only three Bachelor of Ayurvedic Medicine and Surgery practitioners and no allopathic doctors, which was clearly insufficient for his medical needs. In May, he asked the Bombay High Court via video conference to consider how his health had deteriorated so rapidly within eight months of imprisonment at Taloja, to the extent that he was not even able to perform basic functions like walking, eating, writing and bathing by himself.

Another of his co-accused in the Bhima Koregaon case, 80-year old poet, writer and activist P. Varavara Rao, arrested in August 2018, was granted medical bail by the Bombay High Court for six months in February. This was the culmination of a nearly year-long legal battle fought by his wife, during which his health suffered a precipitous decline, as he was hospitalized multiple times and contracted COVID-19 as well.

The kin of the accused have repeatedly lamented that prison authorities’ lack of care for the arrestees’ health, combined with the overcrowding and poor hygiene in the prisons, has led to similar health woes for the arrestees.

Activist and academic Vernon Gonsalves, imprisoned since August 2018, and scholar and activist Anand Teltumbde, under arrest since April 2020, were moved to approach the Bombay High Court to seek COVID tests for themselves after Rao tested positive, due to their close proximity with him inside the jail.

Nagpur University professor Shoma Sen, under arrest since June 2018, suffers from arthritis, joint pains and glaucoma, but is denied proper storage for her medicines.

Delhi University professor Hany Babu, arrested in July last year, contracted an eye infection as well as COVID at Taloja Jail in May and was allegedly denied proper treatment by the jail authorities. He was refused interim bail by the Bombay High Court later that month but permitted to seek treatment at his own expense at a private hospital. He is still hospitalized.

Activists Ramesh Gaichor and Sagar Gorkhe, arrested in September 2020, have contracted COVID as well.

Activist Mahesh Raut, also under arrest since June 2018, when he was undergoing treatment for acute ‘ulcerative colitis’, a condition that causes the colon to enlarge, too contracted COVID-19 last month in prison. His sister has alleged that he did not receive proactive medical aid from the prison authorities.

Sudha Bharadwaj, under detention since August 2018, has diabetes and ischemic disease, besides numerous other co-morbidities which put her at great risk of COVID mortality. Her health has deteriorated alarmingly this year too. Yet, her medical bail applications have been rejected by the trial court, the Bombay High Court, and the Supreme Court. She has allegedly been denied warm clothing from outside as well.

Lawyer Surendra Gadling, under arrest since June 2018, has allegedly received just one mask from the jail authorities since the pandemic began. Activist Sudhir Dhawale, also arrested in June 2018, has been denied COVID vaccination in prison.

Bail pleas rejected

Apart from Rao, the bail pleas of the rest of the remaining 14 Bhima Koregaon arrestees have been repeatedly rejected by various courts and they continue to be imprisoned.

The Supreme Court had ruled in its judgment in Smt. Nilabati Behera alias Lalit Behera vs. State of Orissa & Ors., 1993 SCR  (2) 581, that:

“The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under-trials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law. “

This promise of protection under Article 21 has been denied by not just the prison authorities and the prosecution, but also the judiciary to Fr. Stan and the other Bhima Koregaon accused who, at the cost of repetition, are innocent in the eyes of law.


Shifting of Overton window in UAPA cases?

If the NIA’s track record has shown us something, it is that it has no qualms over detaining innocent persons on terror charges for years, before they are lucky enough to be discharged or acquitted by courts.

In only the last one month, NIA courts have variously acquitted Kashmir resident Bashir Ahmad Baba, jailed for 11 years in Surat; discharged Assam MLA Akhil Gogoi, jailed for over eighteen months in Guwahati (he too had to be hospitalized during his incarceration due to catching COVID and other health issues); discharged Tripura native Mohammed Habeeb, jailed for four years in Bangalore; acquitted Maharashtra residents Mohammed Ilyas and Mohammed Irfan, jailed for nine years in Mumbai.

What was common in all the cases? All five were booked under UAPA, and in each case, the court cited a lack of evidence to release the detainees.

These cases represent the rule, rather than the exception. Between 2016 and 2019, only 2.2% of the nearly 6,000 persons booked and arrested under UAPA were eventually convicted.

As the Prison Report data showed, though, long incarcerations for undertrials are par for the course. Such cases hardly draw any media attention or political mileage today, even though each such case should outrage us, for the moral and constitutional failure that even a single such case represents.

What Fr. Stan’s death, and the subsequent absence of even the pretence of concern or accountability on the part of the NIA or the union government, indicates though, is far more menacing. It signals a shifting of the Overton Window of what is publicly acceptable in the treatment of even high-profile political prisoners detained on flimsy terror charges. Now, not just unjustly long periods of incarceration, but even being actively denied essential health care services, to the point of life extinguishing, is on the verge of being normalized.


The appalling circumstances of Fr. Stan’s death demand, at the very least, a judicial inquiry, immediate bail to all the Bhima Koregaon accused, an expedited and time-bound trial of the case, and some much-needed amendments to the UAPA. Considering the advanced age and poor health of most of the accused, anything less could very likely lead to more demises, before that too becomes the new normal for UAPA cases.

(Vineet Bhalla is a Delhi-based lawyer and copy editor at The Leaflet.)

 

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