Mumbai: The Bombay High Court on Monday, July 19, highlighted the issue of undertrials in several cases languishing in prisons waiting for the trial to begin as it appreciated the work done by tribal rights activist Stan Swamy, who died in judicial custody waiting for bail on medical grounds.
“For how many years can people be asked to languish in jail without a trial?” the court, which was posthumously hearing appeals filed by the Jesuit priest against special court orders rejecting his bail pleas on medical grounds and merits, asked.
Father Stan Swamy was arrested on October 8, 2020, over what the NIA claims is his involvement in the Elgar Parishad case, which has been described internationally as a witchhunt against critics of the Union government. Swamy was the 16th person to be arrested in the case and also the oldest. At the time of his arrest, he had an advanced stage of Parkinson’s disease and in the course of his incarceration, his condition worsened irrevocably.
A bench of Justices S.S. Shinde and N.J. Jamadarthe called the 84-year-old a “wonderful person” and expressed “great respect” for his work.
The two judges had also presided over Father Stan Swamy’s medical bail plea on July 5, the same day when the high court was informed of his death, at the Holy Family Hospital in Mumbai.
“We don’t have time normally, but I saw the funeral service (of Swamy). It was very gracious,” Justice Shinde said.
“Such a wonderful person. The kind of service he has rendered to the society. We have great respect for his work. Legally, whatever is there against him is a different matter,” he said.
The bench also referred to the criticism that the National Investigation Agency (NIA) and the judiciary had received following Swamy’s death. It expressed regret over how, in several cases, undertrials languished in prisons waiting for the trial to begin.
The bench also said it had attempted to “remain fair” while passing orders on Swamy’s medical bail plea, as well as on the pleas filed by his co-accused in the Elgar Parishad case.
“You came to us with his medical bail plea on May 28 and we acceded to every prayer, every time,” the court said to Swamy’s advocate, senior counsel Mihir Desai.
However, as Indian Express has mentioned in its report, the court had kept pending the pleas to ascertain the veracity of claims by Swamy’s counsel of “apathy, negligence and lack of medical facilities” given by NIA and state prison authorities despite the octogenarian suffering from multiple ailments that required close monitoring.
“Outside, we are speechless. Only you (Desai) can clarify this. You have said it on record that you have no grievance with this court in the matter,” the high court said.
As The Wire had reported, after Swamy’s death, his lawyer Mihir Desai had demanded a judicial inquiry into the matter. Desai, who has been representing Swamy since his arrest, told the court that he does not have any complaint against Holy Family Hospital or the high court, but held the National Investigation Agency and the Taloja central prison responsible for Swamy’s death.
The HC further said nobody mentions that this is the court which granted bail to (co-accused) Varavara Rao, despite vehement opposition.
“We allowed (Rao’s) family to meet as we thought human angle has to be seen. In another case (Hany Babu), we sent to hospital of his choice (Breach Candy Hospital-a private medical facility),” the HC said.
“We never anticipated this will happen (Swamy’s death in custody). What was on our minds, we can’t say now as we couldn’t pronounce our order,” the HC said referring to the pending medical bail plea of the late Jesuit priest.
Over the course of his incarceration Swamy spent most of his time in custody in the Taloja prison’s hospital. He was admitted to the state-run J.J. Hospital in Mumbai on two occasions and was then shifted to the Holy Family Hospital, a private medical facility, on May 28, following the intervention of the bench led by Justice Shinde.
On Monday, following the HC’s observations, Desai said, “Let me say on record that I am extremely happy with various benches of the HC that heard this matter.” Desai, however, urged the HC to let Swamy’s aide and another priest, father Frazer Mascarenhas, to participate in the magisterial inquiry that was initiated under Section 176 of the CrPC following the undertrial’s death.
He also urged the high court to direct the magistrate conducting the inquiry to adhere to the UNHRC guidelines on such inquiries, and to ask for a report of the probe to be submitted in the HC.
Desai was Swamy’s counsel in the appeals challenging a special court order denying him bail on both medical grounds and merits.
Swamy had also filed a plea in the HC just weeks before his death, challenging section 45-D of the stringent Unlawful Activities Prevention Act (UAPA), that barred grant of bail to any person accused under the Act.
Jail authorities responsible too: NIA
Advocate Sandesh Patil, who appeared for the NIA, on Monday said the central agency was objecting to Desai’s request since the HC was hearing appeals challenging a bail order and issues related to the inquiry could not be raised on the same pleas.
“Time and again it is projected that the NIA is responsible for whatever has happened, and that jail authorities are responsible too,” Patil told the HC.
The bench, however, told him there could be “no control on who says what outside on the matter”.
“You take instructions on how many witnesses, how long will the trial take. We have to look at it practically,” the HC said to the NIA counsel.
“The concern is that for how many years can people be asked to languish in jail without a trial. Not only in this case, but the question will arise on other cases also,” it said.
The HC will continue hearing the pleas on July 23.
(With PTI inputs)