July 11, 2021

Institutional Murder Most Foul: Unite to Fight

Nilotpal Basu

A TRAGEDY struck triggering a wave of shock and outrage across the country. Around 2.30 pm on July 5,  when before the Bombay High Court bench of Justices S S Shinde and N J Jamadar took up the bail application of the octogenarian Stan Swamy, senior advocate Mihir Desai, his counsel announced that Dr Dsouza of Holy Family Hospital Mumbai who was treating the jailed Jesuit priest wanted to make a statement. He informed the bench, “It is with a very heavy heart I have to inform you that father Stan Swamy has passed away”. Advocate Desai informed the bench that there were no complaints about the treatment at the hospital. But the same thing cannot be said about the NIA and the state and officially, demanded, “I am seeking a judicial probe into this as there was a delay of ten days in taking him to hospital from the jail”.

One of the oldest to be charged under the draconian UAPA, Father Swamy was suffering from acute Parkinson’s, hearing loss in both ears and had undergone two hernia operations and also suffered intense pain due to lumbar spondylosis and tremors in both hands. In an earlier hearing before the vacation bench, Father Swamy had refused to get admitted to a hospital pleading with the court to grant him interim bail so that he could be with his own. He had informed that his condition had progressively deteriorated in the prison and “I would rather suffer, possibly die very shortly if this were to go on ……my deterioration is more powerful than the small tablets that they gave.” However, the bench of Justice Shinde had directed the state to transfer Swamy to a private hospital immediately for 15 days which was subsequently extended from time to time considering his critical condition.

Father Stan was arrested on October 8, 2020, and charged under various sections of the IPC and offences under UAPA for allegedly furthering the cause of banned CPI(Maoist) through various civil rights organisations to which he belongs. He is one of the 16 academics, lawyers, activists who have been in custody for their alleged involvement in the Bhima Koregaon-Elgar Parishad case.

In retrospect, Father Swamy’s death fits the textbook definition of custodial killing and institutional murder. Clearly, on evidence, the Jesuit priest’s health deteriorated during his imprisonment in the Taloja jail where the number of inmates went far beyond the couple of hundreds for which it was designed and totalled three thousand. Notwithstanding his severe comorbidities, the NIA had denied him the sipper which is essential for somebody with a disability. Not only that, when the court had asked about the medical facilities available in the jail, the prison authorities had claimed that the infrastructure was adequate; contrary to just three ayurvedic doctors who managed the facility. The jail authorities did not conduct his Covid test and done only once he was admitted to the hospital. These are facts on record which testify to the gory details of institutional murder.

The Bhima Koregaon case following the violence on January 1, 2018, near Pune, has now emerged, outlining the cruel attempt symptomatising a pattern to ruthlessly invoke draconian laws like UAPA, Sedition Act and National Security Act for snuffing out political dissent. It is not the actual conviction, but incarceration in jail without bail, which it seems is the objective!

Bhima Koregaon has a historical context wherein 1917 the Mahar soldiers helped the British forces to overcome the army of the Brahmin Peshwa rulers. The British had erected a memorial as a testimony to that triumph. Alternatively, the dalits, particularly the Mahars celebrated that memorial every year on January 1, as a mark of their self-assertion. In fact, no less than Baba Saheb Ambedkar started this event as a congregation of dalits from 1937. On January 1, 2018, lakhs of dalits converged at Bhima Koregaon to celebrate the centenary of the historical event.

It was on this day that the celebrations were disrupted with violence provoked by miscreants who also carried saffron flags; the violence was allegedly masterminded by two prominent figures from the Hindutva camp, Sambhaji Bhide of Shiv Prathistan Hindustan and Milind Ekbote of Samast Hindu Agadi. Ekbote was even arrested for a few days. Sambhaji Bhide had a close connection with the prime minister Modi.    However, in  March 2018, the entire course of developments was sought to be given a new direction by Pune police, attributing the violence to  the Elgar Parishad in Pune on December 28 in the run-up to the Bhima Koregaon incident.  Speeches in solidarity with dalit rights were portrayed as the main cause of violence. Subsequently, the case was expanded to link the Elgar Parishad to an alleged conspiracy of the Maoists; portraying this as an attempt to bring down the government and to kill the prime minister, Modi.

To frame well-known activists, lawyers, academicians, human rights activists had been charged with UAPA. Father Stan Swamy was the last person to be arrested and imprisoned in this case along with 15 others.

The violations are too many and the case had been taken over from the state police and handed over to the NIA following the formation of the non-BJP government. But, the most sensational development since is the investigation report published by Washington Post in February and April 2020. Arsenal Consulting, a Massachusetts based digital forensics firm has examined an electronic copy of the laptop at the request of Rona Wilson’s lawyers to whom the machine belonged and is presently one of the key accused. Arsenal’s report, which does not identify the perpetrator of a cyberattack that compromised the laptop to external manipulations ; but concludes that the attack was directed to frame Wilson and the other accused. The attack planted a folder of documents on the laptop over a period of two years. These included the one with the alleged plot to assassinate Modi. The latest report by Arsenal also found that 22 additional documents were also delivered to the computer by the same attacker.  A day after the priest’s death a third report has been released by Arsenal which examined Surendra Gadling’s laptop, coming to a similar conclusion. Not just Arsenal. Independent cybersecurity experts have found that the compromising of the Bhima–Koregaon accused’s computers is one of the most chilling instances to frame somebody.

These ugly details completely destroy the substance of the NIA’s plot and establish the precise charge of institutional murder. As a former judge of the supreme court, Madan Lokur has pointed out that “Stan Swamy was virtually thrust a sentence of death without charges being framed against him and without a trial”.

The essence of the Bhima Koregaon case and this tragedy is part of a larger pattern which is characterised by criminalising dissent by invoking specific provisions of UAPA, Sedition Act or National Security Act. These draconian laws are meant for certain specific nature of offences; for example, in the case of UAPA those charged need to be indulging in terrorism as determined by certain specific objective parameters. In the case of the anti-CAA protest in Assam, activist Akhil Gogoi was charged under this law. Similarly, student activists in Delhi were charged with UAPA trying to link their dissent with the engineering of the communal violence in north east Delhi. It is becoming increasingly apparent that the prosecution directly under the charge of the central government and the union home ministry led by Amit Shah is also aware that these charges will eventually not stick in a court of law but the invoking of draconian provisions which allow detention without trial for an unlimited period of time and that in itself becomes severe incarceration without the establishment of guilt. This runs contrary to the constitutional jurisprudence of presumption of ‘innocent till proven guilty’! In such a situation, institutional murders like what Father Swamy suffered was waiting to happen.

Without dilating further, the perusal of bail orders for Asif, Devangana Kalita and Natasha Narwal is a clear pointer to this very notion of criminalising dissent. The Delhi High Court examined the absurd provisions of Section 43(d5) of UAPA without beating about the bush. It showed based on the case diary and other pieces of evidence produced by the prosecution came to the conclusion that offences made out were not in keeping requirements that would justify its invocations. They clearly pointed out “foundations of our nations cannot be shaken by a protest organised by a tribe of college students”.

Similarly, Guwahati High Court has issued orders on similar lines to provide bail to Akhil Gogoi from the several cases slapped against him under UAPA. It is another matter that he has been elected as an MLA in the Assam Legislative Assembly while suffering incarceration.

That these judgements by the high courts are not flashes in the pan is crystal clear. The government has informed the Rajya Sabha based on National Crimes Records Bureau (NCRB) data that only 2.2 per cent of cases registered under UAPA between the years 2016-19 ended in conviction by the court. The government added, “further the total number of persons arrested and the persons convicted in the years from 2016-2019 under the UAPA in the country are 5,922 and 132 respectively. The NCRB does not maintain this data on the basis of religion, race, caste or gender”. In another reply the government stated that in the year 2019 as many as 96 persons were arrested for sedition (Section 194 IPC) but only two were convicted and 29 persons were acquitted of the 93 cases of sedition the charge sheet was filed in 40 cases in the same year.

In similar replies to questions in Lok Sabha the government has informed the house in March that there has been a 72 per cent increase in the number of arrests made under the draconian UAPA in 2019 in relation to those made in 2015, according to data provided by the ministry of home affairs. This official data itself brings out the sinister story. Unless the draconian provisions are invoked to dispense with bail, the political dissent against the increasingly vicious authoritarian aggressive cannot be sustained and incarceration of critics would not be possible.

Following the stinging criticism by international human rights bodies, the government is trying to claim that what Father Swamy suffered was strictly within provisions of law. Mary Lawlor, UN special rapporteur on human rights defenders and Eamon Gilmore, EU special representative for human rights have expressed their strong disapproval of the manner in which UAPA has been exercised in the Bhima Koregaon case. Lawlor had gone to the extent of charging that Father Swamy was jailed on false charges. Obtusely referring to the Arsenal findings demands were also been raised for releasing Bhima Koregaon accused on bail until the trial takes place.

Meanwhile, let the widest possible unity of all those who cherish democracy and personal freedom as enshrined in the Indian stopping the Constitution come together to reverse the draconian onslaught on human rights by the Modi government, particularly the home minister, Amit Shah.

Let this tragedy never recurs.