Stan Swamy: Shaky hands of the system need medicine

Stan Swamy could not sign Vakalatnama because of his shaky hands due to Parkinson’s disease. On October 9, 2020, the court was kind enough to accept his thumb impression. On November 6, he asked for his sipper and straw that had been taken away from him by the police.

The court asked the police, who said they had not taken his sipper. The court let the police claim lie, and Swamy had to file a special plea for a sipper. Swamy filed the plea. The National Investigation Agency asked for 20 days’ time to file a counter. Meanwhile, the jail authorities refused to take scores of sippers sent by his friends and well-wishers and give one to him. The court gave NIA 20 days to reply to a request for a sipper.

It did not ask why NIA needed 20 days for it, but adjourned the hearing for 20 days. After 20 days, NIA opposed giving Swamy his sipper. The court did not ask why, it reserved judgement. It was only after a big campaign and a national outcry that Swamy was finally given a sipper on November 29, 50 days after he was deprived of it during his arrest! All he wanted was to be able to drink water.

As per the Rights of Persons with Disabilities Act, 2016, Swamy had a right to assistive products, accessibility devices, a barrier-free environment, and reasonable accommodation, in tune with the United Nations Convention on the Rights of Persons with Disabilities, which India has ratified. He was denied a walker or wheelchair, though he had fallen multiple times while in prison.

Also read: Stan Swamy's death in custody can't be justified: Shiv Sena MP Sanjay Raut

Ten opposition political parties wrote to the President, urging his intervention to fix responsibility for the death of Stan Swamy. They said in the letter that “He was denied treatment for his various ailments, including debilitating Parkinson’s. Only after a nationwide campaign was conducted that even a sipper to drink liquids was made available to him in jail.”

A complaint was filed with the Maharashtra Human Rights Commission on May 16 that Swamy, lodged in Taloja Central Jail, Navi Mumbai, was being denied medical facility amidst the pandemic, had not been given vaccination yet, that there was no proper medical care in the jail hospital, and that a majority of jail staff had tested Covid-positive, especially most of the kitchen staff, and a number of under-trial prisoners had also contracted the corona virus but no RT-PCR tests were conducted there.

On July 1, the National Human Rights Commission (NHRC) sought an action taken report within four weeks from the superintendent of prisons on the denial of medical facilities to Swamy. And a day before his death, the NHRC had asked Maharashtra's Chief Secretary to ensure that every possible medical treatment is provided to Swamy "so as to protect his basic human rights." Father Swamy died on July 5.

While the State treated Father Swamy thus, he felt that “humanity was bubbling in Taloja prison” as his fellow prisoners helped him carry on. From prison, Swamy wrote to his friends on November 4: “I am in a cell approximately 13 feet x 8 feet, along with two more inmates. It has a small bathroom and a toilet with Indian commode. Fortunately, I am given a western commode chair…Varavara Rao, Vernon Gonsalves and Arun Ferreira are in another cell. During the day, when cells and barracks are opened, we meet with each other. From 5.30 pm to 06.00 am and 12 noon to 03.00 pm, I am locked up in my cell, with two inmates…Arun assists me to have my breakfast and lunch. Vernon helps me with bath. My two inmates help out during supper, in washing my clothes, and give massage to my knee joints. They are from very poor families…Please remember my inmates and my colleagues in your prayers. Despite all odds, humanity is bubbling in Taloja prison.”

His co-accused in the Bhima-Koregaon/Elgar Parishad case, Telugu Poet Varavara Rao, (aged 80) got bail for six months in February, on grounds of advanced age, multiple ailments and risk of Covid-19. Swamy was 84 and had several disabilities and diseases but was not given bail. The UAPA is a draconian law that prohibits bail, but the Supreme Court added more power to it.

The Delhi High Court had said that bail could be given if no prima facie case could be made out. In the Zahoor Ahmed Shah Watali case in 2018, it had held that trial courts must not act “merely as a post-office of the investigating agency” but should “scrutinise the material with extra care” in determining whether a prima facie case exists. The Supreme Court overruled it and said courts could neither give bail nor examine if there’s a prima facie case. Courts have to presume that allegations in the FIR are true.

The system does not allow consideration of evidence at bail hearing stage; the court is mandated by law to presume that allegations in the FIR are correct, and the law imposes the burden of producing material to counter the FIR on the accused. And all this is called ‘due process.’ What is the medicine for the shaky hands of the system!

(The writer is Dean & Professor, School of Law, Mahindra University, Hyderabad, and a former Central Information Commissioner)