Eight months after he was arrested and locked up in Navi Mumbai’s Taloja Jail, Stan Swamy – octogenarian Jesuit priest, tribal rights activist, public intellectual, Parkinson’s patient; and in the eyes of the BJP-led central government, an enemy of the State – is now undergoing treatment at Mumbai’s Holy Family Hospital for Covid. Swamy tested positive for coronavirus on May 30, two days after the Bombay High Court finally decided that his health had deteriorated enough to merit his transfer to a hospital for treatment – at his own expense. By the time he was admitted, Swamy’s condition had worsened to the extent that he needed to be immediately put on oxygen support.
Amid a raging Covid pandemic across the country, Swamy was arrested from his Bagaicha residence in Jharkhand’s Ranchi on October 8 last year for his alleged role in the controversial Bhima Koregaon case. He was later sent to Taloja Jail in Maharashtra’s Navi Mumbai while the National Investigation Agency (NIA) struggled to find evidence linking him to the charges slapped against him under the draconian Unlawful Activities (Prevention) Act. In the eight months that Swamy spent in jail since his arrest, his lawyers and colleagues repeatedly urged an NIA court to transfer him to a hospital for treatment as his condition had been steadily deteriorating. The court declined each request.
At 84 years of age, Swamy is the oldest among the 16 accused in the Bhima Koregaon case and, arguably, the oldest prison inmate across the country facing non-bailable charges under the draconian Unlawful Activities (Prevention) Act. His long incarceration despite progressively worsening health, however, failed to move a broken system of dispensing justice. As a result, a man who spent the past five decades of his life fighting for the rights of the most oppressed sections of Indian society is now fighting for his life.
The absurdity of the allegations against Swamy and the 15 other accused in the Bhima Koregaon case and the NIA’s continuing inability to substantiate them with credible evidence has been commented upon ad nauseam by legal luminaries, constitutionalists, and political commentators. Shoddy investigations crafted to humiliate, vilify and torture political prisoners by not seeking the truth but burying it and ensuring that the due process of law is twisted into a gratuitous and inexcusable suppression of constitutionally guaranteed freedoms, have been an unfortunate hallmark of Indian probe agencies – the police, CBI, NIA, et al. The Bhima Koregaon case is no different.
A safeguard against this wanton lust for retribution against individuals who political masters of the day find pestiferous was judicial intervention by the courts. That barrier, sadly, seems to have broken – so much so that when courts today actually act as custodians of individual liberty and constitutional guarantees, and there have undeniably been such instances, these decrees appear like aberrations.
How the probe and the judicial proceedings against Swamy have progressed isn’t unique. His co-accused in the Bhima Koregaon case have all been victims of this same broken system in varying degrees. A similar modus operandi of systemic apathy has played out in countless other cases over the past seven years – the North East Deli riots cases, the case against journalist Siddique Kappan in UP, those against anti-CAA activists or the one against recently elected MLA Akhil Gogoi; all bear the same seal. Swamy’s case is yet another cruel reminder of the ruling elite’s insatiable appetite for petty vengeance against dissenting voices, the brazen willingness of probe agencies to serve not the law but their political bosses. Most regrettably, Swamy’s case also symbolizes the failure of our courts to not just deliver swift justice in such cases but also their failure in ensuring a life of dignity to the accused while they serve inordinately long periods in jails as undertrials.
It can be argued that Swamy’s prolonged judicial custody – and the continuing incarceration of his other co-accused – was the result of the penal charges under which he was arrested. The Section 43 D (5) of the UAPA leaves little room for a person accused of an offense under Chapters IV and VI of the Act to be released on bail during the pendency of the case against him, thereby, nearly rendering the otherwise accepted judicial dictum of “bail, not jail, is the rule” (Balchand, 1978, Supreme Court) redundant. However, leaving little room cannot be synonymous with no room just as nearly can’t mean the same as entirely but then, regrettably, our courts seem to have come to accept these as transposable.
The aforementioned section of the UAPA also states that a court may deny bail to an accused if “on a perusal of the case diary or the report made under section 173 of the Code thinks that there are reasonable grounds for believing that the accusation against such person is prima facie true.” Is it then not pertinent for the courts to scrutinize submissions by the prosecution with the same unsparing fervor that they apply to the accused when so-called prima facie evidence in a case wears thin, as it undoubtedly has in the Bhima Koregaon case.
In February this year, a three-judge bench of the Supreme Court headed by Justice N.V. Ramana (now the Chief Justice of India) had upheld a Kerala High Court order granting bail to a person accused under the UAPA. The SC Bench had said: “The presence of statutory restrictions like Section 43 D (5) of UAPA per-se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Further, the verdict had said, “Once it is obvious that a time trial would not be possible and the accused has suffered incarceration for a significant period, Courts would ordinarily be obligated to enlarge them on bail.”
It would, possibly, not require the courts any lengthy scrutiny to realize that the Bhima Koregaon case has been pending for nearly three years now. The NIA is still struggling to submit credible evidence against the accused. Similarly, the courts would surely not need any great inquisitorial prowess to see that several of the accused – Swamy, Vernon Gonsalves, Arun Ferreira, Anand Teltumbde, Gautam Navlakha, Sudha Bhardwaj – are not just senior citizens but also have various medical complications. How does it serve the interest of justice to keep ailing, elderly people who are renowned for their public service, academic and social achievements locked up in crowded prisons at a time when Covid is ruthlessly claiming lives?
Has it also escaped the notice of the courts that the Taloja Jail, where the Bhima Koregaon accused are under custody, does not even have an MBBS qualified doctor and relies on Ayurveda practitioners to prescribe Allopathic medicines in times of medical emergencies, including a deadly pandemic like Covid? Swamy isn’t the only Bhima Koregaon case accused to develop Covid symptoms while at the Taloja Jail. Last year, his co-accused and another octogenarian, Varavara Rao too had contracted Covid and spent long periods in hospitals due to Covid and his other ailments before finally being granted conditional bail for six months in March. Another co-accused and the youngest of the 16 people in jail in the Bhima Koregaon case, Jyoti Jagtap had also tested Covid positive earlier.
Over four decades ago, the Supreme Court had, through its landmark Hussainara Khatoon judgment (March 1979), decided to set free nearly 40000 undertrials languishing in various jails across Bihar. These undertrial prisoners were neither charged under the UAPA nor were they the victims of political vendetta but the observations of the SC in that judgment could just as well hold for the likes of Swamy and scores of other political prisoners who languish in our prisons today due to draconian laws and a vengeful government. While ordering the release of the undertrial prisoners in 1979, Justices P.N. Bhagwati and D.A. Desai had said, “it is possible that some of them, on trial, maybe acquitted of the offenses charged against them and, in that event, they would have spent several years in jail for offenses that they are ultimately found not to have committed. What faith would these people have in our system of administration of justice? Would they not carry a sense of frustration and bitterness against a society that keeps them in jail for so many years for offenses they did not commit?”
The least that the courts can do for Swamy, and many others like him, is to spare him further ignominy. In doing so, the courts will not be offering any unjustified charity but upholding what they are intended to – the majesty of the law and the tenets of justice. A failure to even do this bare minimum may just cost an already ailing old man his life – long before the due process of law upholds his innocence.