The rallying cry from India and across the globe has once again put the spotlight on the dangers of speaking up for the oppressed and exploited. The tragic death of Fr Stan Swamy has triggered an unprecedented outburst of grief and fury against a system that unleashed a reign of cruelty to let an innocent champion of the poor die so miserably. We are not sad because of the death of Swamy two weeks ago, but it seems to be the death of Indian democracy when a 84-old-man can be told that he is taken for interrogation to Mumbai by the NIA that never interrogated him even once during his 9 months in their custody. This secret operation brings no credit to our country and the ruling dispensation. A man who fought for the dignity of others and more so the dignity of the adivasis and tribals was forced to die at 84 denied of his right to dignity.
Commentators have pointed out to the insensitivity of both the executive and judiciary in response to the ill health suffered by Fr Stan. Why had Fr Stan Swamy to die in this manner? Who is responsible for this? What was the threat posed by Fr Stan Swamy to the Indian State? Is our republic safer today with his death? These questions should be answered by all of us. A lot of people were outraged because Fr Stan Swamy had to plead for a straw or a sipper. What if he was given a sipper as soon as he asked for it? Many people found it inhuman to detain 84-yr-old in the absence of any evidence. Would this arrest of Fr Swamy be alright if he did not have Parkinson’s or suffered ill health and was treated well in the Taloja jail? What if Fr Stan was not a Catholic Jesuit Priest?
If you enjoyed reading this article, you can help support our journalism by adding OHeraldo as a preferred source.
With all that has transpired in this case, the cruel ugly face of the state has been exposed. In the death of this innocent man, we now have a glimpse of the despicable iron hand of the state.
It has taken the death of someone like Fr Stan to shock us and wake us up from our slumber. But let our outrage not be displaced and take us away from the core issue of the brutal iron fist of the state. The plot to crush Fr Swamy and his ilk began in 1967. Our parliament passed the Unlawful Activities Prevention Act (UAPA) in the wake of rising left wing extremism. The UAPA Act contravenes the requirements of the International Covenant on Civil and Political Rights. Successive governments told us that all this was necessary and stringent bail conditions were slipped into the act. The court was allowed to believe that all prima facie conditions were true. The worst amendment was the pre-charge detention which was increased from 90 to 180 days. This amendment also reversed the universally accepted principle of laying the burden of proof on the prosecution. With all these amendments it is the accused who had to prove his/her innocence and dispel the courts presumption based on evidence of the prosecution that he/she is prima facie guilty.
The 2008 amendment also presented that a person maybe allowed to be arrested by any officer of the designated authority on the basis of belief from personal knowledge or on information of any other person or any document, article or any other thing which may furnish evidence of the commission of the act. Now you know why there were attempts of planting various evidence on the laptops of the accused! The arresting officer has to only inform the accused of the charges against him/her. The UAPA violates the Federal Structure since it neglects the authority of State Police in terrorism cases, given that ‘Police’ is a state subject under the 7th schedule of the Indian Constitution.
Is this what we want our Republic to be after 75 years of independence – a brutal, mindless, State? In August 2019, Parliament cleared the UAPA Amendment Bill, to designate individuals as terrorists on certain grounds provided by the Act. All political parties have a part in this gory plot. Yes, every one of them. The UAPA is an evil instrument of repression where no clear and precise definition of terrorism has been provided. A citizen can be locked in prison to languish without trial, because it rests on government’s belief and what it thinks are acts of terrorism. Proving innocence of the accused can take years or decades.
In the case of Fr Swamy he is not the only one to die while in custody. In January this year, 38-yr-old Kanchan a tribal accused of Maoist links died. In March of this year 122 people were acquitted from UAPA charges after waiting for 20 years to walk free. Five persons died during the trial. These were all students belonging to the Students Islamic Movement of India (SIMI). What has happened to our rule of law and due process before we curtail anyone’s liberty? Is this not a blatant attempt by the State to make its innocent citizens targets of State terrorism? Today Congress blames BJP. Yesterday BJP blamed Congress. Neither has questioned the brutality of this law.
Our criminal justice system failed Fr Stan. His custody and arbitrary denial of bail was meant to be a signal to all activists and those showing dissent to State’s anti-people, undemocratic actions.
Do we have the courage of Fr Stan, who was not a terrorist but a Patriot to stand up to the brazen authorities? His death caused by judicial apathy, has attracted the media attention worldwide. But this will not suffice, the spirit of Fr Swamy, the oldest person to be charged under anti-terrorist law, will not rest in peace until his mission of delivering justice to the poor and exploited is met and taken forward. The UAPA, however, cannot be above the Constitution of India where Article 21 ensures the right to life, dignity and health. It was therefore absurd for the prosecutor and NIA to oppose the bail application of Fr. Stan even on medical grounds. In this case, the judiciary deserves no kudos – except utmost scorn and contempt. Indeed, a strong and effective state can and must also be a humane state, which it hardly was in the case of Fr Swamy.
(The writer is a social scientist and a practising criminal lawyer)
