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India: Stan Swamy Passes Away After Contracting COVID-19 in Jail, Lawyer Demands Judicial Inquiry

Tuesday 6 July 2021, by siawi3

Source: Secular Perspective

Fr. Stan will always live in our memories and inspire us to keep alive our struggle for democracy and human rights.

5.06.21 12:06 (8 hours ago)

Fr. Stan Swamy is no more with us. Very very sad and I am pained by the thought. The state is responsible for his death. He died in judicial custody but his spirit was always free. He lives in our memory and will live forever. Hope his life and struggle inspires us to finally bury the draconian laws and resurrect human rights, human dignity, and value of compassion. We should strive to keep alive the memory of life and struggle of Fr. Stan Swamy.

Irfan Engineer
Centre for Study of Society and Secularism
Call: +91-22-26149668 | Fax: +91-22-6100712
e-mail: forirf; irfanengi; csss.mumbai
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Stan Swamy Passes Away After Contracting COVID-19 in Jail, Lawyer Demands Judicial Inquiry

Jesuit priest and tribal rights activist Stan Swamy passed away on Monday afternoon, two days after he was placed on ventilator support in Mumbai’s Holy Family Hospital. Swamy had tested positive for COVID-19 and was shifted out of the Taloja central prison to a private hospital over a month ago.

Dr Ian D’Souza of Holy Family Hospital told the Bombay high court on Monday that Swamy passed away at 1:30 pm. The court had arranged for an urgent hearing in light of Swamy’s deteriorating health.

After Swamy’s death, his lawyer Mihir Desai demanded a judicial inquiry into the matter. Desai, who has been representing Swamy since his arrest, told the court that he does not have any complaint against Holy Family Hospital or the high court, but held the National Investigation Agency and the Taloja central prison responsible for Swamy’s death. Swamy was denied medical care for over ten days before he was finally moved to Holy Family Hospital on May 30. During those 10 days, Swamy had complained of fever and weakness.

Soon after the court hearing, Desai told The Wire that he does not want Father Swamy’s death to go to waste. “Father Stan Swamy didn’t die for nothing. We really want to fight this till the end. This case is no more about just Father Swamy’s death. We want to expose the state prison and the investigating agency (NIA) whose criminal action has led to this,” Desai said.

Taloja central prison, which lacks proper medical facilities, failed to provide adequate medical treatment to Swamy and his health had deteriorated by the time he was moved out to a hospital. Since then, Desai said, Swamy has been in and out of the intensive care unit (ICU). The hospital told the high court today that Swamy died following a cardiac arrest he suffered on July 4. Swamy was put on a ventilator support and was unconscious ever since.

Dr Stanislaus D’Souza SJ, Jesuit Provincial of India, issued a statement after Swamy’s death, saying he joined all Jesuit priests in the country in extending their condolences to Swamy’s family. “I express my deepest condolences to the family members, friends, lawyers, well-wishers and all those who stood by Stan and prayed for him during this moment of trial and suffering,” he said.

Although the Elgar Parishad case is being investigated by the NIA, the prisons fall under the Maharashtra state government’s authority as prisons are a state subject. Swamy, one of the oldest prisoners across India’s jails, needed proper medical care, more so at the time when COVID-19 had infected several prisoners across the state. The state, however, had failed to get him vaccinated until Desai brought it up before the high court. And when he had already begun complaining of ill health, the jail authorities got the first dose of the vaccine administered to him.

Swamy had been cured of COVID-19 a few weeks ago but his lawyer said that the infection had left a lasting impact on his vitals. Desai insisted that the delay in the treatment led to Swamy’s death. As per the procedure laid down under Section 176 (1A) of the Code of Criminal Procedure, a judicial magistrate’s inquiry has to be carried out in case of a custodial death. Additional solicitor general Anil Singh told the court that the state is not “foreclosing the mandated inquires”.

The division bench of Justices S.S. Shinde and N.J. Jamdar expressed their condolences to both Desai and Dr D’Souza and also appreciated them for their efforts to ensure Swamy got adequate medical treatment at the hospital. Swamy, who had terrible experience at the state-run JJ Hospital, was against being moved to a hospital. But after Desai had convinced him in May, he had relented. The court, taking note of it, appreciated Desai and observed, “We appreciate your efforts that you could prevail over him to go to a hospital. And he got the best possible medical treatment. But unfortunately, he could not survive.”

Court petitions for all care

Swamy, who was arrested in October last year, was sent to judicial custody immediately and since has been in Taloja prison. Here, he had to move courts each time he fell sick or needed access to healthcare. Suffering from advanced Parkinson’s disease, Swamy needed a sipper to drink water. Even that sipper was made available to him only after an application to the court.

Soon after the Holy Family Hospital informed the court about Swamy’s death, Desai asked that a post mortem to be conducted on Swamy’s body and all guidelines laid down by the National Human Rights Commission in the case of a custodial death be followed. The court agreed.

Swamy, a priest, who lived with his friends and colleagues in Ranchi, Jharkhand, did not have any blood relatives. Desai told the court that Swamy’s body should be handed over to his long-time friend, Father Frazer. The state public prosecutor told the court that the state had no objection to handing over the body to Father Frazer.

Swamy was arrested on October 8 last year for his alleged involvement in the Elgar Parishad case, which has been described as a witchhunt against critics of the government. Swamy was the 16th person to be arrested in the case and also the oldest. At the time of his arrest, he was frail and ailing, and had an advanced stage of Parkinson’s disease. Swamy, who had difficulty in even sipping water from a glass, was dependent on co-prisoners to go about his daily life in jail. In the months that followed, Swamy had trouble going about with his day-to-day activities at Taloja jail, before he fell terribly sick in May. Only after the Bombay high court intervened, was he finally moved to Holy Family Hospital in Bandra.

Swamy, who has been booked under the stringent Unlawful Activities (Prevention) Act, has been denied bail several times even though many prisoners across prisons in Maharashtra have been infected by COVID-19.

In May, during one of the Bombay high court hearings, when Swamy was produced before the bench through a video conferencing link, he had told the court that the only request he had from the judiciary was that of interim bail. “The only thing that I would request the judiciary is to consider for interim bail. That is the only request,” Swamy had said.

In his interaction with the court, Swamy had said that he had noticed a steady regression in his health since he was arrested in October last year. Swamy had wanted to return to Ranchi where he had founded Bagaicha, a Jesuit social research and training centre at Namkum. At the court hearing too, he insisted that the court allows him to return to Ranchi. “Whatever happens to me, I would like to be with my own,” he had said in the court on May 21.

In the past year, several petitions and complaints have been filed against the Taloja jail officials, especially its superintendent Kaustubh Kurlekar. The state government, however, didn’t act on these complaints until last week, when Kurlekar was shunted out of Taloja jail.

Swamy, one of the oldest prisoners in the jail, had been complaining of weakness and fever for a long time before he was moved to the hospital in the last week of May. The jail, overcrowded and ill-equipped to handle medical emergencies, ignored Swamy’s plea for proper healthcare for weeks, leading to serious deterioration of his health condition.

After Swamy fell sick in May, his lawyer, Mihir Desai, moved another application before the high court, this time challenging the constitutionality of UAPA. Desai has challenged the constitutionality of section 43D (5) of UAPA, which imposes strict conditions for grant of bail. The bail application claims that the UAPA section violates Articles 14, 19 and 21 of the Indian constitution. The case is scheduled for hearing again on July 6.

In his plea filed through advocate Desai, Swamy said the above section created an insurmountable hurdle for the accused to get bail and, thus, was violative of the accused person’s fundamental right to life and liberty as guaranteed by the constitution.

In a statement, the Jarkhand Janadhikar Mahasabha said that the NIA, which is investigating the Elgar Parishad case and the Union government are “solely responsible for the sufferings of this elderly person and [his] current state of affairs”.

Desai, who is representing several accused persons in the Elgar Parishad case, had been defending Swamy ever since he was arrested. Desai, who has known Swamy for over three decades, said his relationship with Swamy was more than what was shared between a lawyer and a client. “I have had the opportunity to visit Jharkhand a few times and each time I was there, I would stay at Bagaicha,” Desai said at a condolence meet organised by the Indian Social Institute.

Desai pointed at the systematic harassment that Swamy was subjected to for two years before his arrest in October last year. “The police had raided his house in 2018 and when we asked them (police), they said they are only checking on his as a suspect; they claimed they won’t arrest Fr. Stan… Two raids were carried out and nothing was found.”

Irrespective of the fact that the local Pune police (which had earlier handled the investigations in the Elgar Parishad case until January 2020) and then the NIA did not find any evidence to implicate Swamy, he was still arrested. “Ideally, a person is taken in custody for further investigation and gathering substantial evidence. But Swamy was directly sent to judicial custody. Targeting Swamy was not a mistake, it was a deliberate, malicious arrest,” Desai added.

Swamy was shifted to a private hospital, Holy Family, after a long legal battle. The prison, with over 3,500 persons incarcerated, was managed by three Ayurvedic doctors. These doctors, although not qualified, have been accused of administering allopathic medicines to the prisoners. In the case of Swamy too, allopathic medicines were given to him, his lawyers have alleged.

Even when Swamy was struggling in jail, both the NIA and the state prison officials had opposed his shifting to a private hospital. Swamy’s lawyer had moved an urgent interim bail and the NIA court had rejected his bail petition on grounds including his health and the current COVID-19 situation.

Note: This article has been updated with a revised time of Father Stan Swamy’s passing, Mihir Desai’s quote and details of what the activist had told the Bombay high court.



Does Raising Questions on the Rights of Adivasis Make Me a ‘Deshdrohi’?

This short note was written by Fr Stan Swamy after the Jharkhand authorities filed a case of sedition against him for supporting the Adivasi Pathalgadi movement in July 2018.

Over the last two decades, I have identified myself with the adivasi people and their struggle for a life of dignity and self respect. As a writer, I have tried to analyse the different issues they face. In this process, I have clearly expressed my dissent over several policies and laws enacted by the government in the light of the Indian constitution. I have questioned the validity, legality and justness of several steps taken by the government and the ruling class.

As for the Pathalgadi issue, I have asked the question, “Why are adivasis doing this?” I believe it is because they have been exploited and oppressed beyond tolerance. The rich minerals which are excavated in their land have enriched outsider industrialists and businessmen and impoverished the adivasi people to the extent that people have died of starvation. They have had no share in what is produced. Also, the laws and policies enacted for their well being are deliberately left unimplemented. So they have reached a situation where they realise ‘enough is enough’ and are seeking to re-invent their identity by empowering their gram sabhas through Pathalgadis. Their actions are understandable.

Some of the questions I have raised are:

1) I have questioned the non-implementation of the 5th Schedule of the constitution, Article 244(1), which clearly stipulates that a ‘tribes advisory council’ (TAC), composed solely of members from the adivasi community, will advise the governor of the state about any and everything concerning the protection, well-being and development of the adivasi people in the state.

2) I have questioned why the Panchayats (Extension to Scheduled Areas) Act, 1996, has been neatly ignored which for the first time recognised the fact that the adivasi communities in India have a rich social and cultural tradition of self-governance through the gram sabha. Whereas the reality is this Act has deliberately been left unimplemented in all nine states. It means the capitalist ruling class does not want adivasi people to self govern.

3) I have questioned the silence of the government on Samatha Judgment, 1997, of the Supreme Court which came as a huge relief to the adivasi communities in Scheduled Areas. It came at a time when consequent to the policy of globalisation, liberalisation, marketisation, privatisation, national and international corporate houses started to invade adivasi areas in central India to mine the mineral riches. The government machinery gave its full cooperation to these companies. Any resistance by the adivasi people was put down with an iron hand. The judgment was meant to provide some significant safeguards for adivasis to control the excavation of minerals in their lands and to help develop themselves economically.

In reality, the state has ignored this verdict of the highest court. Several cases have been filed by affected communities, but the ‘law of eminent domain’ of the colonial rulers are invoked to alienate adivasi land and to loot the rich mineral resources.

Adivasis from Khunti in Jharkhand have places several such stones under the Pathalgadi movement. Credit: Neeraj Sinha/The Wire

4) I have questioned the half-hearted action of government on the Forest Rights Act, 2006. “Jal, jungle, jameen”, as we know, are the basis of the economic life of the adivasi people. Their traditional rights in the forest have been infringed upon systematically over the decades. At long last, the government realised that a historic injustice has been done to the adivasis and other traditional forest-dwellers. To correct this anomaly, it enacted this Act.

The reality is far from desirable. From 2006 to 2011, about 30 lakh applications were made all over the country for title deeds. Of these, 11 lakh applications were approved but 14 lakh were rejected and five lakh were left pending. Of late, the Jharkhand government is trying to bypass the gram sabha in the process of acquiring forest land for setting up industry.

5) I have questioned the inaction of the government to carry out the SC order that the ‘owner of the land is also the owner of sub-soil minerals’. In the order, the court said, “We are of the opinion that there is nothing in the law which declares that all mineral wealth sub-soil rights vest in the State, on the other hand, the ownership of sub-soil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process.”

The rich minerals in their lands are being looted by the government and private companies. The Supreme Court has declared 214 out of the 219 coal blocks in the country illegal and ordered their closure and levied a fine on them for their illegal mining. But the Central and state governments have found a way out by re-allotting these illegal mines through auction to make it look legal.

6) I have questioned the reasons why the SC observation is being ignored that “mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence”. The court rejected the doctrine of ‘guilt by association’.

It is common knowledge that many young men and women are held in prison on the suspicion of being “helpers of Naxalites”. After arresting them, other penal clauses are added on. It is an easy label that can be put on any one whom the police wants to catch. It does not require any proof or witness. The Supreme Court says even membership in a banned organisation does not make a person a criminal. How far removed are the law and order forces from the judiciary?

7) I have questioned the recently enacted amendment to the Land Acquisition Act, 2013, by the Jharkhand government which sounds a death knell for the adivasi community. This does away with the requirement for “social impact assessment’ which was aimed at safeguarding the environment, social relations and cultural values of affected people. The most damaging factor is that the government can allow any agricultural land for non-agricultural purposes. So any and every thing can be included.

8) I have questioned the ‘land bank’ which I see as the most recent plot to annihilate the adivasi people.
During ‘Momentum Jharkhand’ in February 2017, the government announced that 21 lakh acres in the land bank, of which 10 lakh acres is ready for allotment to industrialists.

“Gair-majurwa” land (uncultivated land) can be ‘khas’ (private) or ‘aam’ (common). As per tradition, individual adivasi families or communities have been in possession and use this land (jamabandi). Now the government has shockingly cancelled all ‘jamabandi’ titles and claims that all ‘gair-majurwa’ land belongs to the government and it is free to allot it to any body (read industrial houses) to set up their small and big industries.

People are in the dark that their land is being written off. The TAC has not given its approval as is required by the Fifth Schedule. The respective gram sabhas have not given their consent as required by the PESA Act. Affected adivasi people have not given their consent as required by Land Acquisition Act.

These are the questions that I have consistently raised. If this makes me a ‘deshdrohi’ then so be it !