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Thursday, June 17, 2021

Is Stan Swamy not entitled to even a medical bail hearing?

Parkinson’s has ravaged the body of the Jesuit priest, an accused in the Bhima Koregaon case. Why won’t the court listen to compelling reason and judicial conscience?

Written by Payoshi Roy |
Updated: May 27, 2021 8:02:56 am
Father Stan Swamy is a Jesuit priest and a tribal rights activist based in Jharkhand.

The court has again denied bail in a UAPA case, but now the failure to protect rights has been more egregious. On May 21, Father Stan Swamy’s disease-ravaged body shook as he implored the Bombay High Court for medical bail. Accused in the Bhima Koregaon case, a gargantuan investigation into an alleged Maoist conspiracy to overthrow the Indian state, 84-year-old Swamy has been in custody for eight months.

A Jesuit priest, Swamy has tirelessly fought for the rights of tribal and Adivasi communities, and the implementation of the Fifth Schedule of the Constitution. A deeply inspirational figure, his is a life dedicated to public service. Even when disease has wrecked his body, his commitment to his beliefs remains unshaken.

Prisons, Michel Foucault said, were created to punish natives, dissenters and deviants. Independence from British rule has not changed their character. Taloja jail, where Swamy is incarcerated, has three ayurvedic doctors, none trained in allopathy, and such a severe shortage of escort guards that they required seven days to hospitalise Hany Babu, who was suffering from an eye infection that almost blinded him. It is overpopulated by 48 per cent of its capacity and lacks basic resources, such as water. It is from this hell that prisoners seek release when they beg for bail.

It is here that Parkinson’s has so ravaged Swamy that he cannot hold a spoon, write, walk or bathe. While describing his condition to the court, he rocked back and forth, lacking enough muscle control to sit still. “My deterioration is more powerful than the small tablets they give,” he said. It is ludicrous to imagine that he could threaten anybody, let alone the mighty Indian state, or pose a flight risk given that he cannot even walk without assistance.

Faced with Swamy’s demand for medical bail, the court offered him treatment instead, as it did to Sudha Bharadwaj and Hany Babu. Even in his decaying state and fully cognisant that his intransigence may cost him his life, Swamy stood firm and refused the compromise of palliative care as a substitute for liberty. He rejected the offer of medical treatment in a state-run hospital, whose “set-up” he knew only too well. “I have been to J.J Hospital twice. I would rather suffer here,” he said. Swamy pleaded for medical bail, but the court neither engaged with nor rejected his prayer. Was he not entitled to at least that? Instead, the court restricted the hearing to the question of medical treatment.

There is no utility in keeping Swamy incarcerated, only cruelty. The refusal to convert incarceration to house arrest does not square with the recent Supreme Court judgment extolling the virtues of house arrest in mitigating the rigours of incarceration on the ailing. Despite this compelling case for bail, the court denied relief. One is forced to ask, what is the power of the prosecution’s unproven allegations that blinds the court to compelling reason and judicial conscience?

Courts have been at their weakest and most deferential to the executive in cases of terrorism and national security. The Bhima Koregaon case seems to have become a byword for political victimisation. In cases that supposedly threaten national security, it has now even denied itself the power to adjudicate something as basic as a bail application along time-honored principles. Section 43D(5) of the UAPA prohibits bail if reasonable grounds exist showing the accusation is prima facie true. While interpreting this section, the Supreme Court in Zahoor Ali Shah Watali’s case held that the court must not only presume that prosecution documents are true, it cannot even examine whether they are admissible in evidence; it must presume that they are. As per Watali, where the only material is an inadmissible confession to a police officer, the question of inadmissibility is irrelevant at the stage of bail, even if after many years of incarceration it becomes the sole ground of acquittal. If the prosecution’s chargesheet is presumed to be true, and its documents presumed to be admissible, what is left to argue in a bail application? If admissibility of documents can be examined at the bail stage in all IPC offences, including murder, why not in the more serious terrorist cases? The absurdity arising from this disparity in bail jurisprudence between IPC offences and terror offences under special laws is demonstrated in Natasha Narwal’s case. She has been granted bail in the IPC case alleging incitement of violence in the Delhi riots, she remains in custody in the UAPA case alleging a conspiracy to incite the same violence.

Ironically, Swamy, a Christian priest, is accused of membership of the CPI (Maoist), an avowedly atheist organisation. The material marshalled against Swamy consists of typed, unsigned, and even undated letters. In Indian law, documents whose provenance and authorship are unknown, which carry neither date nor signature, do not constitute evidence. Yet the Supreme Court’s decision in Watali renders Swamy ineligible for bail on merits. At the end of his bail hearing, Swamy said “I will probably die here, very shortly if things go on as it is. It is a very difficult moment for me. Whatever happens to me, I would like to be with my own.”

We live under a regime that labels poets, journalists, and even school children as terrorists and a threat to national security. It is time that the judiciary took stock. In its deference to the prosecution, the courts abdicate their duty not just to an incarcerated priest, but to justice itself.

This column first appeared in the print edition on May 27, 2021 under the title ‘The injustice to Stan Swamy’. The writer is a lawyer practising at Bombay High Court. She represents three other accused in the Bhima Koregaon case

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