By A J Philip

New Delhi: If St. Stephen was the protomartyr in the history of Christianity, Father Stanislaus Lourduswamy (April 26, 1937 – July 5, 2021), popularly known as Fr Stan Swamy, is the latest. His was a murder, pure and simple, executed by the Indian state, because he stood for the truth, the exploited and the marginalized.

His custodial death highlights the draconian nature of the Unlawful Activities Prevention Act (UAPA) and the injudicious manner in which it is implemented against anyone whom the government thinks does not enjoy the right to live, let alone to protest against acts of injustice like mining in forest areas and thereby depriving the tribals of their source of sustenance.

True, death cannot be averted for it is the only certainty in life. However, he could have lived longer, if only the state and all its apparatuses were a little more lenient and considerate. Father Stan was in jail for nearly nine months but he was not found eligible for bail.

It was an irony of irony that a Division Bench of the Mumbai High Court was hearing his bail petition when word reached the court that Father Stan was no longer under its control as the Almighty God in His infinite wisdom had decided to call him back to a place where he would live happily forever. There, he would have the company of another Swamy, Justice V R Krishna Iyer, who wrote the little book “Bail, not Jail”!

If the black-coated judges who wear the two white pieces of cloth that represent the tablets that God gave to Moses felt cheated and robbed of their right to, most probably, deny bail to the dying man, it could not be helped. God has His own inscrutable ways of delivering justice which man takes time to comprehend.

Here, let me disabuse my readers of their belief, if they hold it, that the judges are the villains of the piece in the judicial murder of Father Stan. To hold such a view is to be simplistic and not to know the nature of the law under which the octogenarian was persecuted and, finally, killed.

Also, please don’t think that Prime Minister Narendra Modi and his deputy Amit Shah are solely to blame for the enactment of the UAPA. The mother of the draconian law, which was not that draconian initially, was Prime Minister Indira Gandhi.

The UAPA was first drafted and introduced in 1967. Successive governments led by various parties, including the Congress and the BJP, amended the Act from time to time to make it India’s primary counter-terrorism law.

One of the fundamental principles of Anglo-Saxon jurisprudence that India follows is that a person is considered innocent, unless he is proved otherwise. An accused is, therefore, entitled to the benefit of the doubt. Under the UAPA, no such benefit is given to the accused.

The whole world knows that Father Stan was a living saint, who abhorred all creature comforts, but in the eyes of the UAPA, he was as good as a guilty person, who could be held in police custody for as long as 180 days, even without filing a chargesheet.

In ordinary criminal cases, the period a person can be held in judicial custody without bail is 90 days. If the prosecution is unable to submit a charge sheet within that period, the accused is entitled to bail. This privilege is, alas, not available to a person against whom the UAPA has been invoked.

He simply has no right to get bail for 180 days. Unfortunately, the apex court has upheld this draconian provision, which is against one of the basic principles of the Constitution that individual rights cannot be trampled upon except by the due process of law. Alas, the due process of law has been subverted under the UAPA.

What’s worse, the court has no choice but to depend on the police version to decide whether the arrested person deserves bail. In this case, the judge is like a robot which acts as programmed by its creator and has no independent way of thinking.

Father Stan had been claiming that the National Investigation Agency (NIA) had tampered with the contents in his laptop and interpolated incriminating evidence against him. Anyone with a modicum of knowledge about computers knows that once a person has the password of the computer user, he can add or delete anything from the test stored in the device.

For instance, somebody who can access my laptop can use abusive words against the judges in this write-up and make me susceptible to action under the contempt of court law. Aamir Khan-starrer 3 Idiots is a famous Hindi movie in which the contents of a speech stored in the computer is interpolated.

In the film, it was a prank committed by the three idiots to expose a real idiot. Under the UAPA, the court had no other version to rely on except what the police provided. In the film we have seen how the professor who was so fond of the student turns against him when he unconsciously delivers the manipulated speech.

So, if Father Stan was projected as a dreaded terrorist with manipulated documents, there was no way the Jesuit priest could counter it with logic or evidence. The court was not even under compulsion to hear him plead innocence. In short, he was presumed guilty.

One of the standard pleas the police make in UAPA cases when the accused begins pleading for justice is that he can do so when the trial starts. The trial can start in six months or six years. In the case of Father Stan, the trial did not begin even after eight months.

Significantly, after his arrest and incarceration, the NIA never sought his custody even for a day to interrogate him. In its abundant wisdom, the NIA would have concluded that it had nothing to gain by questioning him.

In fact, he was questioned for several days before he was formally arrested and his laptop was taken away so that the police could manipulate it and make it the only piece of evidence against him.

Yet, the NIA consistently opposed Father Stan’s bail application, despite the fact that he was 84, suffering from Parkinson’s disease and was virtually and visibly dying. His jail mates have mentioned how one particular jailor had been harassing Father Stan.

Nelson Mandela in his prison diary has mentioned one particular jailor who enjoyed pissing on him. I remembered that jailor when I read about this jailor! They are beasts of the same flock living in two continents but united against human dignity.

Father Stan had always been saying that he had never visited the village where violence was instigated by the fifth columnists on the 200th anniversary of the battle of Bhima Koregaon in 2018. The battle rankled the so-called nationalists because it was won by the British who depended almost wholly on the Dalits to fight.

It does not fit into their own narrative in which Mangal Pandey of the 1857 uprising is the greatest hero. They forget the fact that it was essentially a revolt by the Muslims who reinstalled Bahadur Shah Zafar as the monarch. That is why all those who organized the 2018 celebration at Bhima Koregaon are the Sangh Parivar’s ‘enemies’.

Since Father Stan was nowhere near the village, he was dubbed a Maoist and arrested. Who is a Maoist? In the state’s perception, anyone who stands for the rights of the tribals to their land is a Maoist. For Father Stan, the Constitution, especially its Fifth Schedule, was second only to the Bible.

To return to the UAPA, when the governments of the day found that anti-terrorist laws like the Terrorism and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Terrorism Act (POTA) were indefensible, they sought refuge in the UAPA by amending it to make it more stringent.

If it was originally seen as an anti-terror law, in 2019, the Modi government converted it into a powerful weapon against individuals who stood up against the government. There were 15 other persons, holding positions of influence in society, who were arrested along with Father Stan for their alleged connection with Bhima Koregaon.

Curiously, while they are allowed to rot in jail, a lady accused of actual involvement in terrorism was not only granted bail but was also permitted to contest elections and become a honorable Member of Parliament. She was last seen playing basketball with no need for a wheelchair!

Experience has shown that the stringency of a law is a sure recipe for misuse. One only has to recall how laws like the TADA were used against children and even persons of unsound mind.

In the instant case, the Indian state would not have lost anything if it had released the octogenarian on bail for he could not have escaped the country like businessmen Vijay Mallya and Nirav Modi. I doubt whether Father Stan had a valid passport, let alone two dozen large suitcases like the Kingfisher airline owner had when he “secretly” left India using a diplomatic passport.

Yet, why was Father Stab kept in custody? Because the police knew that they would never be able to get him convicted for want of evidence and the only way they could “punish” him was by keeping him in jail for as long as possible. The UAPA gave the NIA the necessary loopholes to harass and eventually finish Father Stan.

Small wonder that one recommendation the former Kerala Police chief Lokanath Behera made was that Kerala should enact a stringent law like the one Maharashtra has to deal with “terrorists.” Such a law makes it easy for the police to arrest and torture anyone who challenges the government. Behera used the UAPA against two “Maoist” youths without proffering any evidence in the public domain while he was in service.

Come to think of it, laws like the UAPA make the police lazy. If the police had to convince the court that Father Stan’s custody was necessary to investigate the case, they would have to provide evidence, which the accused could challenge. It would have allowed the judge to use his discretion and superior knowledge of the law to make a decision.

In the case of the UAPA, the police only have to remind the judge of the provision that allows them to keep the accused in jail for as long as 180 days without bail.

The judges, too, are so terrorized by the law’s provisions that they forget that Father Stan’s request for a straw to drink liquids as he could not hold a glass was within their realm of discretion.

Despite the police getting so much time to present a foolproof case before the court, the conviction rate in UAPA cases is abysmally low. According to Home Ministry data given to Parliament, only “2.2 percent cases registered under the UAPA between 2016 and 2019 resulted in conviction.”

The nation has seen how the state has been using the sedition law, drafted by the British to deal with Wahhabis, to jail students, teachers, journalists and social activists. The sooner the UAPA is divested of its draconian provisions, the better it will be for the democratic functioning of the country.

Following the death of Father Stan, leaders of most political parties, including Congress chief Sonia Gandhi, Marxist leader Sitaram Yechury and DMK leader and Tamil Nadu Chief Minister M.K. Stalin wrote to the President about the misuse of the UAPA. They have the power to use the forums of Parliament and public opinion to campaign against the continuance of the law that does not redound to the credit of a democratic nation.

Now, who will answer for the death of Father Stan? Nothing will happen to the police officers who arrested him on fake charges and tortured him in jail. Again, nothing will happen to the jailor who tortured the priest in the jail. Accountability needs to be fixed in such cases so that the person or persons who arrest such people are punished if they are not able to convince the court of their guilt.

In that case, they will think twice before slapping UAPA charges against all and sundry on the directions of the powers that be. Unless accountability is clearly expressed in the law, there will be many more Father Stan Swamys from among the thousands of tribals and others locked in jails under this obnoxious law.

(A J Philip is a journalist, who has held high editorial positions in many leading newspapers. He is a visiting faculty at Bharatiya Vidya Bhavan. He was the president of Deepalaya, a New Delhi-based NGO founded in 1979 to aid the development of the urban and rural poor in India, with a focus on children. This article was first published in Indian Currents, Issue No 29)