Killing Him Softly With His Song: A Requiem for Father Stan Swamy

The entire episode leaves behind a feeling that Stan Swamy was virtually thrust a sentence of death without charges being framed against him and without a trial.

Strumming my pain with his fingers
Singing my life with his words
Killing me softly with his song
Killing me softly with his song
Telling my whole life with his words
Killing me softly with his song

These lyrics from a popular song of the 1970s virtually sum up the last year of Fr. Stan Swamy’s life and the treatment meted out to him.

Certain events occurred on January 1, 2018 in Bhima-Koregaon which led to the lodging of an FIR under various sections of the Indian Penal Code, including sedition. After investigation, offences under the Unlawful Activities (Prevention) Act were added. A charge sheet was first filed against some accused persons on November 15, 2018 and a second or supplementary charge sheet was filed against some more accused persons on February 21, 2019.

In the meanwhile, the Maharashtra Police investigating the case searched the residence and office of Stan Swamy in Ranchi on August 28, 2018. Quite clearly, nothing incriminating was found against him and that is perhaps why no accusations were made against him in the charge sheets filed in November 2018 and February 2019. Perhaps with a view to dig up at least some material evidence against Stan Swamy, his residence and office were again searched in Ranchi on June 12, 2019 and once again it appears that nothing incriminating was found. All was quiet thereafter until January 24, 2020, when the investigation was transferred from the Maharashtra Police to the National Investigation Agency (NIA) on January 24, 2020.

According to Stan Swamy, he was interrogated by the NIA for about 15 hours between July 25 and August 7, 2020. On September 30, 2020, he was summoned to attend the office of the NIA in Mumbai on October 5, which he declined at short notice due to his old age (83 years) and the pandemic situation. This did not seem to deter the NIA officials, who went to Ranchi and arrested him on October 8, 2020 in connection with the Bhima-Koregaon case and lodged him in Taloja Jail near Mumbai. A charge sheet was filed against him (and others) the next day spelling out offences under the UAPA.

In D.K. Basu (1996) the Supreme Court mandated the medical examination of every person who is arrested. The Supreme Court did not intend a cursory or visual examination but a somewhat more detailed exercise. The arresting officer must have taken steps to have Stan Swamy examined by a competent medical officer who would have recorded his age and the fact that he suffered from Parkinson’s disease.

In A.K. Roy v. Union of India (1981) the Supreme Court dealt with the law of preventive detention, that is, the detention of a person without trial and without charges being framed. It was held that a person preventively detained should normally be “kept in detention in a place which is within the environs of his or her ordinary place of residence. If a person ordinarily resides in Delhi to keep him in detention in a far of place like Madras or Calcutta is a punitive measure by itself which, in matters of preventive detention at any rate, is not to be encouraged. Besides, keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him …..” Failure to do so would be a procedural measure of a punitive kind.

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There is undoubtedly a qualitative difference between detention under a preventive detention law and detention pending trial for a criminal offence, but if the life and liberty of the detenu is considered in a broader context, compassionately and in a humanitarian manner, there is little substantive difference. Therefore, one of the requirements of prison reforms should be that an under-trial prisoner is kept in custody in a jail close to his/her residence so that the detenu is not killed softly.

Recently, the Supreme Court encouraged house arrest in Gautam Navlakha v. NIA (2021) as against detention in jail. One of the reasons mentioned by the Supreme Court was the overcrowding in jails, which we all know is a chronic problem and the pandemic has made living conditions quite tragic in some jails. The Supreme Court observed that in “appropriate cases it will be open to courts to order house arrest. As to its employment [section 167 of the CrPC], without being exhaustive, we may indicate criteria like age, health condition and the antecedents of the Accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest.”

Taloja Jail was known to be overcrowded even in April 2020 and as recently observed by the Bombay High Court it had only three Ayurvedic doctors, Unfortunately, compassion and a degree of humanity seems to be missing and Stan Swamy was taken from Ranchi to Mumbai and kept in detention as an under-trial prisoner, away from his environs and ordinary place of residence, killing him softly.

Two months without straw and sipper

Interestingly, the NIA did not seek his custody but directly requested the court to remand him to judicial custody. The reason is quite obvious – he was not required for interrogation and the charge sheet against him was ready for filing and was, in fact, filed the next day. Therefore, what was the need to detain him at all? And why in Mumbai and not in Ranchi? What about his age (83 years), medical condition and so on?

Soon after his arrest and given his health status (Parkinson’s and age), Stan Swamy applied for interim bail on health grounds. The application was unfortunately rejected on October 22, 2020. Soon after, since Stan Swamy suffered from Parkinson’s, he found it convenient to use and also required a sipper or a straw to consume liquids, including water. He moved an application for being provided with a sipper and a straw. This application was dealt with great insensitivity. First, the prosecution sought time to file a reply. Was it necessary?  Could a straw and sipper not have been provided to Stan Swamy? Then, even more surprisingly, the learned judge granted 20 days to the prosecution to file a reply! This was simply amazing. Frankly, if the prison system had been compassionate and humane, it would not have been necessary for Stan Swamy to approach the Trial Court for something as simple as a straw. Ultimately, as a great favour, the powers that be supplied Stan Swamy a sipper. Small mercies! A classic case of strumming his pain with their fingers.

Four months for judge to decide on bail

On or about November 26, 2020 Stan Swamy applied for regular bail on several grounds, including his health. The fact of the matter seems to be that the NIA did not want to examine him any further, but it seems that it wanted to punish him for some alleged offences – punishment without a trial. And so, the bail application was hotly contested by the NIA and ultimately rejected by the trial court of judge D.E. Kothalikar on March 22, 2021 after almost four months, during which period Stan Swamy was obviously in custody. It needs to be asked why it takes so many months to decide a bail application. Is it not possible to expedite the process considering the fact that the person seeking bail is in judicial custody and continued custody is the responsibility of the judiciary? Does every under-trial prisoner have to be killed softly?

Feeling aggrieved by the rejection of the regular bail application as also the application for interim bail on grounds of health, Stan Swamy filed appeals before the Bombay high court. His plea for regular bail was first taken up for consideration on May 4, 2021 and was adjourned from time to time for obtaining medical reports and so on from teams of doctors. While the hon’ble judges are obviously not qualified doctors, a reading of the medical reports gives the impression that Stan Swamy was obviously not hale and hearty as a young man but had several problems which are to be found in persons who are above 80 years of age.

Notwithstanding the medical reports, the hon’ble judges decided to speak to Stan Swamy and it was noted: “We have observed that he has severe hearing problem and he is physically very weak. However, we have conversed with him with the assistance of the person sitting next to him. Though the court as well as the learned senior advocate appearing for the appellant inquired from the petitioner whether he would like to take treatment at J.J. Hospital or at any other hospital of his choice, including Holy Family Hospital, he has categorically stated that he does not want to be treated at any hospital and he will prefer to die in jail rather than get admitted to any hospital. He has informed the court that his general health has completely deteriorated after he came to the Taloja prison and ‘there is a lot of give and take in the prison’. He has therefore insisted that he should get interim bail.” Stan Swamy was told his whole life with his words while our criminal justice system was killing him softly with his song.

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A journalist from LiveLaw.in was present during the video-conference session and it was reported that Stan Swamy informed the high court that when he came to Taloja Jail the core systems of his body were still functional. “But slowly there has been a steady regression of what my body’s main functions are. I could walk by myself, I could take a bath by myself, I could also write. But these functions are slowly disappearing. For eating, I’ve not been able to eat properly. Yesterday I was taken to JJ Hospital so I got an opportunity to explain what I should be given. My deterioration is more powerful than the small tablets that they give.”

Court: Are you treated well at the Taloja Jail. General treatment? Do you have any complaints against Taloja jail? Do you want to be admitted at JJ Hospital?

Stan Swamy: 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 die. I would prefer this.”

He is said to have added that he would like to be with his own. However, the next day, he was persuaded to get admitted in JJ Hospital, at his own cost.

Did Stan Swamy have a premonition of his death? Are the provisions of the UAPA more important than the provisions of the Constitution of India, particularly Article 21? Is it not possible for the powers that be in our country to be more compassionate, humane, merciful and dignified, or is it that everyone must suffer indignity and disgrace at the hands of the powers that be?

The entire episode leaves behind a feeling that Stan Swamy was virtually thrust a sentence of death without charges being framed against him and without a trial. I wonder if his soul will be able to rest in peace, but I hope it does. I suppose all that can be said is “Father, forgive them for they know not what they do”.

Madan B. Lokur is a former judge of the Supreme Court of India