No Straws, No Bail, No Justice: Remembering Stan Swamy Who Died In Custody

He arrested under the Unlawful Activities Prevention Act (UAPA) on October 8, 2020, for his¯ alleged links in the Bhima Koregaon- Elgar Parishad caste violence, which he vehemently denied. At the age of 83 and suffering from Parkinson's disease, Father Stan claimed he had difficulty eating and drinking in prison.

We often hear that bail is the rule and jail is exception but Swamy was charged under the Unlawful Activities Prevention Act (UAPA) which makes it more difficult and then 'jail becomes the norm and bail is a dream'. Father Swamy spent the last eight months before his hospital admission in Taloja Central prison, where his condition progressively deteriorated.

Who killed Father Swamy?

Although, Father Swamy died because of his deteriorating health conditions but at the same time the judicial system along with the jail functionaries failed him. There is a large-scale difference between an accused and a convict, but most of the accused persons are treated as if they are also convicted. In D. Bhuvan Mohan Patnaik v. State of Andhra Pradesh, great stress was laid on the following rights of prisons – 'Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess.'

In the words of Supreme Court (in Mohammad Giasuddin v. State of Andhra Pradesh), "Our prisons should be correctional houses, not cruel iron aching the soul."

Even Justice SS Shinde of the Bombay High Court who was hearing the bail matter praised Swamy for his service and the work he did, after his passing away.

"I was informed about the timing of the funeral service. Such a wonderful person. The kind of services he has rendered to the society. We have respect for his work. Legally, whatever is there against him is a different matter…We normally don't get time for TV, but we saw this funeral, and it was very graceful." Said Justice SS Shinde

(Justice SS Shinde had to withdrew his oral statements (the abovementioned) after the National Investigation Agency raised objections)

No straws, No sippers, No dignity!

It was not once, but on many occasions that he raised concern(s) about his health. It is painful to even mentioned that his lawyer had once asked the court to allow him to get a sipper and straw (as he was not able to drink water from a glass due to Parkinson's disease.) Twenty days after Father Stan filed his application seeking straw and sipper on November 6, NIA filed its reply after seeking time, and the agency told the Court that they did not recover any straw and sipper from him at the time of his arrest hence they could not provide him the same. It is noteworthy to mention that after NIA's reply expressing their inability to grant Father Stan Swamy's request seeking straw and sipper, a group of lawyers sent straws and sippers for him to Taloja jail.

We all witnessed the deadly second wave of covid-19 pandemic and no one was immune to the virus – before the vaccinees were into the picture. It is pertinent to point on when Swamy asked a special court in Mumbai for bail on the grounds that an overcrowded prison would make him more vulnerable to the coronavirus, the NIA replied that "the accused under the garb of the current situation on account of the global pandemic Covid-19, is trying to take an undue benefit of the situation…"

In this context it would be appropriate to quote David Rudovsky's Rights of prisoners (pg. 25), also referred in Sunil Batra v. Delhi Administration

"The present system puts absolute discretion and day-to-day power over every aspect of a prisoner's life in their hands. It is this part of prison life which causes the deepest resentment among prisoners for, to a large extent, the manner in which an inmate is treated by the guards determines the severity of conditions he will have to endure. It is a doub1e irony that the lower the level of authority in prison (from warden on down to guard) the greater tho discretion that is vested in the prison official and the less willing the courts are to review their decisions. 'Thus, whether it be a request for medical treatment, the right to go to the yard of prison library, or the potentially more serious matter of prison discipline and punishment, the guard of the block holds ultimate power over the prisoner."

Would prefer jail over state run JJ hospital: Stan Swamy

Just a few months before his demise Swamy refused to get admitted to the State-run JJ Hospital, saying that he would prefer the Taloja Prison ward where he's lodged since his arrest.

While interacting with the court via 'video conferencing' he said:

"No, I would not want to. I have been there thrice. I know the set-up. I don't want to be hospitalised there. I would rather suffer, possibly die very shortly if this were to go on. I would prefer this, than be admitted at the JJ Hospital. It is a very difficult moment for me."

It was on May 29, 2021 that the Bombay High Court directed the Maharashtra government to transfer Father Stan Swamy, to the Holy Family Hospital from Taloja Central Jail for treatment.

"We are of the view that the appellant can be given choice of being admitted in Holy Family Hospital at Bandra for treatment for a period of 15 days from the date of his shifting to said hospital. Accordingly, the respondents and in particular Respondent No. 2, are directed to shift the appellant to Holy Family Hospital at Bandra for treatment immediately, and preferably during the course of day", the court held

It would be pertinent to refer what Justice Krishna Iyer said in his book, Constitutional Miscellany that "Judicare and medicare must go together. Judicare without medicare is inadequate. Judicure without medicure leaves the wound half-healed…There must be a running covenant for collaboration between Law and Medicine if there criminal justice system is to fulfil its tryst with human destiny."

The court in Sunil Batra case observed:

"Basic constitutional rights cannot be halted at the prison gates and can be enforced within the prison campus and "even a convict is entitled (though Father Swamy was just an accused) to the precious right guaranteed by Article 21 of the Indian Constitution that he/she/they shall not be deprived of his life or personal liberty except according to procedure established by law."

"The Indian human has a constant companion -the Court armed with the weapon. The weapon is 'habeas' the power is part III and the projectile is Batra (AIR 1979 SC 1675) …If the prisoner breaks down because of mental torture, psychic pressure or physical infliction beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess." – The Dialectics and Dynamics of Human Rights in Indian, Yesterday, Today and Tomorrow, by VR Krishna Iyer (Former Supreme Court judge)

The ghost of UAPA and Sedition still haunts

Father Swamy will always be remembered as an under-trial accused no matter what people say, but to bring justice to his soul the trial must conclude. It is relevant to mention that the trial in the Bhima Koregaon case is yet to commence. Another octogenarian accused in the case, Varavara Rao, who is also suffering from multiple diseases, recently moved the Supreme Court seeking bail, after the Bombay High Court denied him relief.

A former judge of the Supreme Court, Justice Deepak Gupta expressed his concern over the rising arrests under UAPA and in regard to Father Swamy's death, he said "Are we not humans? Have lost all touch of humanity that his man requires bail?"

"Father Stan Swamy, 84 years old, suffering from Parkinson's disease (Bhima Koregaon accused who died in custody)! Are we not humans? Have lost all touch of humanity that this man requires bail? No doubt that the Bombay High Court did ensure he got proper treatment in jail but why could you not be free? The considerations of bail are that the accused should not run away from justice, he should not influence witnesses, he should be available for investigation. And the court had adequate power to put such a restriction if bail was granted to Father Stan Swamy", said Justice Gupta.

There are many activists, journalists, students etc. who were jailed for their speeches, alleged involvement in protests and many more.

The most recent example of granting bail under UAPA was when the Delhi High Court had found that offences under the Act were not made out prima facie against student leaders Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita in the Delhi riots conspiracy case. Reiterating that right to peaceful protest is a constitutional right flowing from Article 19(1)(a) of the Constitution, the High Court said :

"...the right to protest is not outlawed and cannot be termed as a 'terrorist act' within the meaning of the UAPA, unless of course the ingredients of the offences under sections 15, 17 and/or 18 of the UAPA are clearly discernible from the factual allegations contained in charge-sheet and the material filed therewith".

Journalist Siddique Kappan and his co-accused are still languishing in a UAPA jail since October 2020 and the trial is yet to begin. It is pertinent to highlight that Kappan was so unfortunate that he was not able to meet his mother on her death bed.

The burden is not only upon the court to grant bail in critical cases but also on the jail authorities and the state to provide the basic facilities within the prison because an under-trial accused is innocent until proven guilty, but unfortunately, we have seen cases where accused are being treated as 'convicted' criminals.

Let us hope that Father Swamy is at a better place and such horrifying incident is not repeated in history. To conclude, it is relevant to refer to one of the poems he wrote, while he was in prison:

"Inside the daunting prison gates, all belongings taken away but for the bare essentials 'You' comes first, 'I' comes after and 'We' is the air one breathes. Nothing is mine, nothing is yours, everything is ours."

(Areeb Uddin Ahmed is an advocate practicing at Allahabad High Court, he tweets @areebuddin14 and writes often on legal issues)