Jail was the rule and bail was impossible for Father Swamy

By Olav Albuquerque

Mumbai: The custodial death of the 84-year-old Jesuit Father Stan Sway, who was repeatedly denied bail under the Unlawful Activities Prevention Act (UAPA) must be contrasted against the treatment meted out to politician Anil Deshmukh.

The former home minister of Maharashtra has refused to appear three times in succession before the Enforcement Directorate for allegedly extorting 100 crore (1 billion) rupees per month which he allegedly sent to his private trust after laundering through a layer of companies.

While the Jesuit priest died in judicial custody after being denied bail, it is unlikely that Deshmukh will ever be jailed.

The so-called ‘rule of law’ must be applied equally to both Father Swamy and Deshmukh, because Article 14 guarantees the law will be applied equally to all Indian citizens, irrespective of their status.

The Union government told the United Nations Human Rights Commission and the European Union that ‘the rule of law’ was followed in Father Swamy’s case. If that is true, why was he allowed to contract Covid-19 in Taloja jail when undertrials were sent home? Post-Covid-19 complications may have weakened his lungs leading to pulmonary infection.

The National Investigation Agency (NIA) that arrested him did not interrogate him for a single day after strongly opposing his bail. Was this adhering to ‘the rule of law?’

The cardinal rule of criminal jurisprudence that those charged with heinous crimes are presumed innocent until proved guilty in the trial court has been overturned by the Supreme Court in its April 2019 judgment of National Investigative Agency versus Zahoor Ahmad Shah Watali which created a new doctrine in criminal jurisprudence.

This is that an accused charged under the UAPA must remain in custody throughout the trial until his acquittal. This is true even if the evidence against him was inadmissible. The absurdity of this reasoning is in line with the government’s stand that enemies of the state must forego fundamental rights.

This in effect, destroys that the Supreme Court’s emphasizing that the 25 high courts in India are the custodian of fundamental rights and they must exercise their jurisdiction when citizens’ fundamental rights have been trampled by the government. The axiom that bail is the rule and jail is the exception is ignored.

But in February 2021, a Bombay high court bench comprising Justice S S Shinde and Manish Pitale gave six months medical bail to the alleged Marxist poet 82-year-old Varavara Rao.

The judges said when the health of a person like Rao was seriously impaired the high court could not remain a mute spectator. In view of his serious medical condition, denying him bail in view of his health situation will be an “abdication of its constitutional duty.” This very same reasoning could have also been applied to Father Swamy, who is more advanced in age than Rao.

It is impossible for an accused to prove he is innocent when he is already declared guilty without a trial under the quixotic jurisprudence of the UAPA. Such judicial reasoning essentially excludes the admissibility of evidence at the stage of bail. By doing so, it has effectively excluded the Evidence Act itself, which arguably makes the decision unconstitutional.

Bail hearings under the UAPA appear farcical because of the stringent jurisprudence where an accused is presumed guilty and has to himself prove his innocence when he is behind bars. With such high barriers of proof, it is now impossible for an accused to obtain bail, and is in fact a convenient tool to put a person behind bars indefinitely.

On the one hand, you have an 84-year-old rights activist priest who works for the uplift of tribals in Jharkhand without the state machinery at his disposal – unlike Deshmukh. He was accused of being a Maoist and being one of the plotters in the Bhima-Koregaon case. On the other hand, former Deshmukh has used the courts to thwart a free-and-fair investigation into his alleged misdeeds of amassing crores of rupees.

Whether Deshmukh did this for his party or his family is a matter of speculation. Ironically, the same Bombay High Court bench of Justice S S Shinde and NJ Jamdar heard the bail plea of both Father Swamy and Deshmukh. Deshmukh had the Nationalist Congress Party chief Sharad Pawar defending him although several bar owners’ statement have been recorded of having paid 45 million rupees as “good luck money” to Deshmukh’s Man Friday, sacked cop Sachin Waze.

The Enforcement Directorate (ED) has told the high court there is more than 500 millin rupees of suspicious transactions involving Deshmukh’s dozen or so companies and his trust which runs professional colleges. But the Jesuit priest who died in custody had taken the vows of poverty, chastity and obedience to his superiors who would have to defrock him if the NIA’s allegations were proved true.

The same ED attached assets worth over 650 million rupeesm, including properties linked to a firm controlled by Maharashtra Deputy Chief Minister Ajit Pawar in connection with the Maharashtra State Cooperative Bank (MSCB) scam. It is the same ED which arrested Girish Chaudhary, NCP leader and former Maharashtra revenue minister, Eknath Khadse’s son-in-law in alleged money-laundering of 612.5 million rupees (61.25 crore) in a land deal.

Deshmukh, Pawar and Khadse will proclaim they are being targeted by the Modi government as they are in power in Maharashtra. The law is applied differently to different suspects making a mockery of the right to equal treatment of the law and the rule of law.

The alleged antics of Deshmukh also fall within the gamut of the UAPA, apart from the Prevention of Money Laundering Act and the Prevention of Corruption Act. Deputy Chief Minister Ajit Pawar had belittled a drought-hit farmer Bhaiyya Deshmukh who was on a fast in 2013. “If there is no water in the dams, should we urinate into them,” he had asked but was forced to apologize later.

The treatment meted out to Father Swamy, compared to Deshmukh or Eknath Khadse are as different as chalk from cheese. Deshmukh has already approached the Supreme Court where he will engage top lawyers to thwart the ED from collecting evidence against him. But despite the NIA denying that Father Swamy was not given a sipper to drink water, the agency’s special court adjourned for three weeks his application seeking the sipper when it could have been immediately granted.

This implies Father Swamy’s rudimentary fundamental right to life in judicial custody was ignored while Deshmukh, Ajit Pawar and Eknath Khadse have been handled with kid gloves. Hence, the government’s rebuttal to the United Nations and European Union that the “due process of law had been followed in Father Swamy’s case” is unsatisfactory because the state is responsible for the priest contracting Covid-19 in jail when the NIA did not need to interrogate him.

It is well-settled law that even in heinous crimes such as waging war against the state, if a man is too old to threaten witnesses or flee abroad to avoid facing a trial, he should be granted bail. But the special NIA court declared the collective interests of society overrode the fundamental rights of Father Swamy although he was too weak and frail to walk or drink water.

Hence, we must conclude that the right to life and liberty is guaranteed to those who can afford costly lawyers such as Deshmukh, Ajit Pawar and Eknath Khadse from the same political party. But people like Father Swamy who cannot afford the fees of top notch lawyers like Harish Salve are treated differently.

If refused bail expeditiously, the Jesuit priest could have approached the Supreme Court like a star news anchor who was immediately granted bail after being accused of abetment to suicide.

The infirm priest told the Bombay High court that an ayurvedic doctor had prescribed anti-psychotic drugs in Taloja jail although the Supreme Court has clearly banned ayurvedic doctors from practicing allopathy. Swamy’s medical reports from J J hospital clearly proved his health was precarious in the Taloja jail. Adjourning his bail plea, the division bench of Justices Shinde and Jamdar directed he be treated in Holy Family hospital instead of disposing his bail plea expeditiously.

India would have been saved loss-of-face in the United Nations and our Opposition parties would not have alleged the death of Father Swamy was a custodial murder if the same bench had disposed the bail application immediately. Mary Lawlor, the U.N. Special Rapporteur on Human Rights Defenders, shared her concern with Eamon Gilmore, the European Union Special Representative for Human Rights who had raised the case of Father Swamy repeatedly with India.

Student groups including from the IIT-Mumbai have protested the “institutional murder” of the Jesuit priest.

On being told that the priest had died at 1:30 pm on July 5 in Holy Family Hospital, the bench of Justices Shinde and N.J. Jamdar reacted by saying, “We are shocked. We have no words to express….”

These platitudinous expressions will not bring back the dead priest who would have died among his beloved tribals at Ranchi if not for the syndrome of adjourning urgent bail matters.

(Olav Albuquerque holds the M Sc, LL M degrees apart from a Ph D in Media Law from the University of Mumbai. He is a senior journalist-cum-advocate of the Bombay High Court.)