Father Stan Swamy’s passing has touched many chords. And the shock, anger and hurt at the manner in which was ‘let go’ makes us wonder if this was the India our freedom fighters fought for. An independent India that kept an 84-year-old tribal and human rights activist incarcerated for nine months without trial, because courts do not decide bail on the merits of the investigation but only on charges levelled, should hang its head in shame.
Let us ask, has India been shamed? You all know the answer
When Prime Minister Manmohan Singh visited the US during his first term, President Bush referred to India as a “strong long-standing democracy”. Let us ask if we can call ourselves that if we look at the ordeal that Fr Stan Swamy, a Jesuit priest but above all a crusader for humanity, went through, stripped of his wellbeing, dignity and even his right to life. Is this the sign of a “strong long-standing democracy”? Is it alive or has not been crushed?
We have not let just Father Swamy down. INDIA HAS BEEN LET DOWN
With all humility and respect the Courts, especially they Constitutionally courts must be asked if the Principle of Right to Life could have been followed more judiciously and more importantly quickly.
Father Stan Swamy fought for land, forests and labour rights of Adivasis. He fought when a Tribal Advisory Council with members of the Adivasis for their protection and well-being was not established as mandated by the 5th Schedule.
He had worked in Jharkhand for over three decades on various issues of the Adivasi communities on land, forest and labour rights. This includes questioning the non-implementation of the Fifth Schedule of the Constitution, which stipulated setting up of a Tribal Advisory Council with members solely of the Adivasi a community for their protection, well-being and development in the State.
Was fighting for ADIVASI RIGHTS HIS REAL CRIME? IS FIGHTING FOR THE POOR A CRIME?
Let us remember that Fr Stan Swamy challenged the “indiscriminate” arrest of thousands of young Adivasis and moolvasis with investigating agencies labelling them as “Naxals”. He was arrested two days later for his alleged involvement in the Bhima Koregaon case*
(*On January 1, 2018, lakhs of Dalits had gathered near Pune to commemorate the 200th anniversary of the Battle of Bhima Koregaon, which was won by the British army — largely comprising soldiers from the Dalit community — against the Peshwas in 1818. There was violence, with vehicles of those assembled being burnt, and assaults on them – Source Indian Express)
Father Solomon is the director of Bagaicha, an organisation founded by Swamy which works with tribals in Jharkhand said extracts claimed to have been found on Father Swamy’s computer, allegedly exposing his naxal links, were shown to him by NIA officials. He had told them that these never existed on his computer. So what really happened?
Perhaps this saying or line will strike a chord and point towards an answer. You cannot dance when the devil is on your back. The people’s dance of democracy can take place only when institutions are free and without fear.
Environmental lawyer Sreeja Chakraborty who appears in the Karnataka and the Goa High Court said, “My broad view is to look at the NIA court. It is at the NIA court where the bail was heard and denied. The High Court ultimately allowed his treatment in a private hospital.”
The laws of the land at times also act as ropes and chains which slows and kills justice. Here’s a look in by some top lawyers
Adv Pranay Kamat, a senior Goa-based lawyer practising in the High Court says, “He was arrested by National Investigation Agency. In such matters courts (higher courts) examine what is placed before them by investigating agencies (after the bail stage). They go into the cases registered and decide on bail applications based on that.”
The inference from this is clear. That if the NIA has filed a charge sheet accusing Fr Swamy of committing crimes against the nation, the NIA court will not examine the merit of the investigation but go only by the charges levelled by the investigating agency.
When anti-terror laws are bent completely towards the agencies and away from the accused chances of misuse go up. That’s exactly what happened.
WAS THE PRINCIPLE OF RIGHT TO LIFE APPLIED WHICH IS ABOVE ALL RIGHTS?
Advocate Cleofato Almeida Coutinho explains that the Watali judgement is taken as a yardstick on all bail issues in the trial stage. “The Supreme Court in this case had reversed a High Court bail order, in the case of one Watali saying courts cannot go into the depth of issue at the bail stage and will go only by case diaries and charge sheet.” Coutinho explains that in anti-terror or in cases involving crimes against the nation, there is literally no option for bail till the trial begins. For instance, look at the case of Sudha Bharadwaj, another senior tribal activist who has been jailed and is suffering like Father Swamy. Some of the letters used as evidence against her (for indulging in anti-national activities) were not even dated or signed. Coutinho then goes on to explain that is the reason why Father Swamy’s lawyers went to the Constitutional Court (High Court) and filed a Writ Petition (and not a bail plea) under Section 226 of the Constitution to protect his Right to Life.
A HEALTH ISSUE IS A RIGHT TO LIFE ISSUE. IT’S A SERIOUS ISSUE
Coutinho elaborated that the Constitutional courts “have failed” since Fr Swamy was allowed to be treated in a hospital of his choice but was not given bail. He was a Parkinson’s disease patient with his eyesight and other organs failing, who couldn’t even walk or drink water without support. What kind of a threat was he? Was he a greater threat than so many right-wing hate speech givers including elected representatives against whom no action has been taken?
Yatish Naik, a seasoned Panjim-based lawyer says, “A person who was committed to serve the needy was subject to so much pain. He died in custody. Why did it happen and how did it happen? Let us look at his life and struggle and find out.”
CONCLUSION: DO WE DESERVE AN INDIA WHERE THOSE WITH A CLEAR TRACK RECORD OF TIRELESSLY WORKING FOR THE POOR AND MARGINALISED HAVE TO SUFFER THIS FATE? WHEN SELFLESS HEROES ARE MADE VILLAINS AND WHEN THE WHEELS OF JUSTICE MOVE SLOWLY OR DON’T MOVE AT ALL.
