Father Stan Swamy Has Right To Have His Name Cleared : Jesuits Approach Bombay High Court

"Article 21 (Right to dignity) of the Constitution equally applies to deceased persons and just as the Appellant(Father Swamy) would have had a right to clear his name if he were alive, similarly those closest to him would have a similar right to clear his name,"  Senior counsel Advocate Mihir Desai said on behalf of the Jamshedpur Jesuit Province, which is seeking to pursue Stan Swamy's case as his next of kin.

Father Swamy passed away from a cardiac arrest in a private hospital ahead of his bail hearing on July 5. He was the 16^th civil liberties activist to be arrested under anti-terror offences of the UA(P) Act on October 8, 2020. The National Investigation Agency (NIA) accused him of being a banned CPI(Maoist) member and conspiring to overpower the Government.

Advocate Desai assisted by Advocate Mihir Joshi has submitted a note to the Bombay High Court in his pending bail appeals. He states the Special NIA Court's observations while refusing bail amount to preliminary findings of guilt, which the High Court can set aside.

"The substantive bail has been rejected on the basis that the 'accusations against the accused are prima facie true.' Thus, there is a stigma which attaches to the Appellant (Swamy) and will continue to be so attached unless these findings are set aside," the note reads.

Apart from clearing Father Swamy's name, Desai has filed the note seeking certain directions regarding the mandatory judicial inquiry under section 176 (1-A) of the CrPC into his death.

One of the directions is to allow St Xaviers College's ex-principal, Father Frazer Mascarenhas, to participate in the inquiry. The note states that he is delegated to be Swamy's next of kin by the Jamshedpur Jesuit Province.

However, the NIA has argued the appeals won't survive due to the bar under section 394 of the CrPC.

Can the Appeals Remain Pending?

According to the proviso to section 394 of the CrPC, an appeal would abate on a person's death unless it is an appeal against conviction, a sentence of death or imprisonment, in which case, the person's relatives may seek the court's permission to continue the appeal.

Desai makes two submissions; the first is that the bar under 394 of the CrPC wouldn't apply to appeals under section 21 of the NIA Act. Second, Swamy's kin should be allowed to clear his name using the proviso even if they do.

Referring to the insurmountable condition for bail under UAPA, and the Special Court's findings that the allegations were prima facie true, the note states.

"It is submitted that this amounts to a preliminary finding of guilt against the accused which must be cured in appeal, if the Appellate Courts deem it fit to do so."

"Assuming without admitting that section 394 of the CrPC would apply in the present case, then Orders refusing bail under the UA(P)A must be held, by this Hon'ble Court, to fall within the proviso of Section 394 of the Code of Criminal Procedure, 1973 owing to the nature of findings rendered by these Special Courts while refusing bail and in order to afford an opportunity to the next-of-kin of deceased appellants to clear the odium attached to their names and reputation (as held by the Hon'ble Supreme Court as aforesaid)."

The note adds that even if the two bail appeals stand abated, Swamy's writ petition challenging section 43D(5) of UAPA under Article 226 of the Constitution would still survive as it's not barred by 394 of the CrPC. Alternately, the High Court can convert the appeals into writ petitions as it is a court of superior jurisdiction.

BOFORS SCAM

Former Prime Minister of India Rajiv Gandhi's name was similarly cleared in the Bofors Scam in 1999 after he passed away pending trial.

Dismissing an NGO's petition under section 482 of the CrPC, to quash the charge sheet qua the former Prime Minister, the court Supreme Court observed,

"Political or public perceptions need not bother this court. Bearing in mind the basic principles of criminal jurisprudence, this court can only observe that in the given situation, the late Shri Rajiv Gandhi is entitled to the benefit of the legal presumption that he is innocent and not guilty."

COURT-MONITORED ENQUIRY

Father Swamy was lodged in Taloja Prison until HC's directions to shift him to Holy Family Hospital in May. He tested positive for Covid-19 on admission in June. He was suffering from a pulmonary infection, post-COVID-19 complications in the lungs and pneumonia.

"It is strongly believed by those closest to him that his death was caused (in view of his age and past health conditions) due to his arrest and prison conditions including inadequate health facilities and health care," the note states.

Therefore, the magisterial inquiry should look into the immediate cause of death and events that have led to his death.

"This means that the Judicial Magistrate ought to look not just at the immediate cause of death but also past events leading to the death including Father Stan's health at the time of arrest, health care provided and available at the prison hospital and other hospital and related matters," the plea states.

Desai has sought for the National Human Rights Commissions Guidelines to be followed for the enquiry. The inquiry should be court-monitored, he has said.

"It is submitted that as per the provision of section 176(1-A), there is a presumption of commission of an offence in cases of custodial deaths and rape and the magisterial enquiry envisioned in the said section is nothing but a judicial investigation to ascertain the cause of death and circumstances leading up to death and whether or not they reveal the culpability of functionary of the State. Thus, it is submitted that the said enquiry could be subject to the continuing mandamus powers of this Hon'ble Court."

Parens Patriae Powers

The powers of this Hon'ble Court in its parens patriae jurisdiction are inherent powers arising out of a duty of the State and this Hon'ble Court to extend protection to those citizens who cannot protect themselves.

Desai has thus urged the court to use its inherent parens patriae powers to monitor the magisterial inquiry into Swamy's custodial death under Section 176 (1-A) of the CrPC and direct the Magistrate to place the inquiry report before the court.