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Stan Swamy’s demise should shake up a justice system, on procedure and on judges’ reading of laws

Stan Swamy’s death in judicial custody was an entirely avoidable tragedy. And pretty much every part of the criminal justice system is responsible. First, he was not even being tried. He was awaiting further proceedings in last year’s NIA-filed Elgar Parishad chargesheet. Second, NIA arrested Swamy only a day before filing its chargesheet. This showed it didn’t need him for custodial interrogation. Therefore, investigative integrity wouldn’t have been threatened had Swamy received bail. But, and this is the third grave injustice, NIA stoutly opposed bail pleas of an 84-year-old with serious medical conditions, and one who was jailed when a pandemic was raging. Fourth, the trial court failed on counts of common sense, simple decency and judicial principles by stalling the bail of an octogenarian with Parkinson’s, who couldn’t possibly intimidate witnesses or pose a flight risk.

This terrible systemic failure is made worse by a more worrying trend – the freewheeling way serious charges like terrorism are being filed. Swamy, accused of involvement in a Maoist conspiracy, had worked for some of India’s most disadvantaged. His 2017 PIL, which came after painstaking research on SC/STs languishing for years as UAPA undertrial prisoners, as well as his long years of campaigning for Adivasi land and forest rights are not exactly typical of a ‘dangerous anti-national’. Swamy’s is one of many cases where investigators’ definition of what constitutes ‘terrorism’ should attract severe judicial scrutiny.

A strong case now exists for revisiting UAPA provisions defining terrorist acts and discouraging bail. Terror is currently too broadly defined in this draconian law. And UAPA’s onerous bail conditions seem to tell most judges that threadbare dissection of the prosecution case is not warranted. There are a few exceptions to this judicial passivity. Assam activist Akhil Gogoi was discharged last week after a special court didn’t even bother to send his UAPA case relating to anti-CAA protests to trial. Delhi HC’s recent bail order on three anti-CAA activists also rubbished Delhi Police’s UAPA charges. In February, SC granted bail to a UAPA accused incarcerated for over five years. Last month, Karnataka HC granted default bail to 115 accused in a Bengaluru riots case. In these proceedings, NIA’s plea for 90-day extension of probe had been accepted by a trial court, without hearing defendants.

But look at Elgar Parishad. Some accused are in prison for nearly three years. Courts haven’t framed charges to begin trial. Will Swamy’s tragic death give the system the shaking up it needs?



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This piece appeared as an editorial opinion in the print edition of The Times of India.



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