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The right of personal liberty in light of the case of Fr. Stan Swamy v. State of Maharashtra

June 1, 2021

2020

This article is written by Pranav Sethi, from SVKM NMIMS School of law Navi Mumbai. This article analyses the right of personal liberty in light of the case of Fr. Stan Swamy v. State of Maharashtra.

Table of Contents

Introduction

“Life without liberty is like a body without spirit.”

— Khalil Gibran

Among the most fundamental principles of human existence is the right to live a free, complete, and dignified life. Every person has the right to live their lives on their terms, free of unjustified interference from others. An effective democracy can only exist if its people have the freedom to defend their own lives and liberties.

The Right to Life and Personal Liberty is defined in Article 21 under the Part III of the Indian Constitution of 1950, which states that “No person shall be deprived of his life or personal liberty except by the procedure prescribed by statute.”

In India, these fundamental rights embody the people’s basic principles and are guaranteed against state acts, which means that no state authority will breach a citizen’s fundamental rights except according to the procedure established by law.

As a result, this Article prevents the state from infringing on a person’s right to life and personal liberty. The term “state” applies to all bodies with legislative authority, such as the federal and state governments, municipal governments, and so on. As a result, private entities’ violations of the right are not protected. The word “life” and “personal liberty” refer to a broad range of people’s rights that have evolved as a result of the courts’ interpretation of Article 21.

Understanding the Bhima Koregaon case

Bhima Koregaon, a small village in Pune, Maharashtra, which is now the epicentre of turmoil, is connected to an exceptional time in Maratha history. A few hundred Mahar soldiers of the East India Company, led by the British, overpowered the huge Peshwa military, led by Peshwa Bajirao II, in Koregaon two hundred years ago on January 1, 1818. In Dalit history, this fight has since taken on iconic proportions. This is not seen through the narrow perspective of nationalism and imperialism by Ambedkarite Dalits.

According to the tale, about 500 Mahar soldiers fighting for the East India Company clashed with Peshwa Bajirao II’s 25,000-strong army. The Mahars were considered an untouchable caste during that time, and the Peshwas did not recruit them into the army. Despite this, Mahars challenged Peshwa Bajirao II to support his army against the British, according to the Dalit version of the Koregaon Bhima war. Their proposal was refused. When the Mahars met the British, they were warmly welcomed into their ranks.

The Mahar troops, commanded by the British, defeated the Peshwas in the Battle of Koregaon. The victory was not only a victory for the Mahars but also a victory over caste-based prejudice and injustice. The British constructed a memorial pillar at Koregaon Bhima in 1851 to commemorate the soldiers who died in the war, the majority of whom were Mahars.

What occurred on the 200th anniversary of the war that resulted in the death of one person?

On the 200th milestone of the Battle of Koregaon-Bhima, a meeting called Elgar Parishad was conducted in Shaniwar Wada near Pune on December 31, 2017.
On 1 January 2018, during the 200th-anniversary celebrations of the Anglo-Maratha War, riots ignited in the village of Koregaon-Bhima.
Several thousands of Dalits had gathered around the British-erected Victory Pillar (Vijay Stambh) in Sanaswadi village when stone-pelting began, reportedly by right-wing groups holding saffron flags. Anti-social forces targeted the crowd with aggression and stone pelting, killing a 28-year-old youth and injuring five others.
B. G. Kolse Patil and P. B. Sawant retired justices, organised the annual celebration, also known as the Elgar Parishad convention. According to Justice P. B. Sawant, the word “Elgar” meant “loud invitation” or “loud declaration.”
The association of Hindutva with the Peshwas is said to have enraged Hindu organisations.
Thousands of Dalits descended in Bhima Koregaon on January 1st, as they do every year. The memorial has a tradition of being peaceful, and the people of the village have a history of social harmony.
In 2018, however, tensions in a neighbouring village had begun to grow over the issue of who performed the last rites of Maratha ruler Sambhaji – the Mahar or the Maratha. The Bhima Koregaon panchayat released a notice urging locals to avoid the event by closing all shops on that day.
Dalit rights organizations organized roadblocks and protests across Maharashtra to condemn the brutality. Pune has seen a lot of violence. During the rally, a young boy was killed, and his family claims he was injured by police caning.
Prakash Ambedkar called a Maharashtra bandh on January 3, 2018. Various protests erupted across Maharashtra, culminating in the injuries of 30 police officers and the detention of over 300 people. Protests took place across Maharashtra. Suburban trains in Mumbai were disrupted, forcing Dabbawalas to interrupt their services.

The arrest of activist Father Stan Swamy

Following the incident, the NIA arrested 83-year-old Father Stan Swamy around October 8, 2020. The National Investigation Agency (NIA) reported that the Persecuted Prisoners Solidarity Committee (PPSC) co-convened by Swamy and Sudha Bharadwaj was a front for Maoists.

Who is Father Stan Swamy?

Stan Lourduswamy, also known as Stan Swamy, was born on April 26, 1937, in India. He is an Indian Roman Catholic priest, a supporter of the Jesuit order, and a long-time tribal rights advocate. Swamy is the oldest person in India to be charged with terrorism.

Stan Swamy is a Jesuit priest and human rights defender based in Jharkhand who fights for the rights of Adivasi indigenous people. He established the Vistapan Virodhi Janvikash Andolan, an all-India forum dedicated to securing and protecting Dalit and Adivasi land rights. Stan Swamy has been a vocal opponent of forced evictions of Adivasi villages, which are usually carried out for construction or the mining of mineral-rich lands. He is an outspoken opponent of the Adivasi community’s systematic oppression and abuse. Swamy is known for documenting and advocating against the arrest of Adivasi youth, who are often mistaken for Naxalites or Maoists.

On October 8, 2020, he was charged and convicted under the Unlawful Activities (Prevention) Act by the National Investigation Agency (NIA) for his alleged involvement in the 2018 Bhima Koregaon violence and links to the Communist Party of India (Maoist). Hemant Soren, the Chief Minister of Jharkhand, and Pinarayi Vijayan, the Chief Minister of Kerala, have both demanded justice for Fr. Stan Swamy.

Fr. Stan Swamy v. State Of Maharashtra

In this case, Swamy was charged for being a Maoist supporter in the 2018 Bhima Koregaon violence, under Sections 121, 121-A, 124-A, 153-A, 505(1)(b), 115, 120-B, 201 read with 34 of the Indian Penal Code, 1872, as well as Sections 13, 16, 17, 18, 18-A, 18-B, 20, 38, and 39 of the Unlawful Activities (Prevention) Act, 1967.

Even though he maintains he was not in Pune at the time. It was said that the Persecuted Prisoners Solidarity Committee (PPSC), which he and Sudha Bharadwaj established to campaign for the liberation of 3,000 men and women detained for being Maoists, was a front for Maoist fundraising. The Jesuits have refuted the suggestion that Stan Swamy is a Maoist, claiming that it goes against the Jesuit order’s ethos.

On October 8, 2020, he was apprehended by the National Investigation Agency (NIA) from Bagaicha, a Jesuit social justice centre, and charged under the Unlawful Activities (Prevention) Act, 1967, which allows bail to be refused.

The Pune Police investigated the case at first, but it was later turned over to the NIA. He was previously arrested in Ranchi in June 2018 on similar charges. The People’s Union for Civil Liberties (PUCL), the All India Catholic Union, the Catholic Bishops Conference of India, Kerala Catholic Bishops’ Conference (KCBC), Kerala Latin Catholic Association (KLCA), Kerala Jesuit Provincial, Federation of Asian Bishops Conferences (FABC), and the global Jesuit society have led mass demonstrations across India, asking for his release.

Related to his work with the Adivasi group, the liberation of undertrials, and the Persecuted Prisoners Solidarity Committee, the arrests have been characterised as politically driven. Among other things, other leaders of minority faiths have also spoken out against his detention.

Timeline of bail and prison incidents

On October 23, 2020, the special National Investigation Agency (NIA) court denied temporary bail on medical grounds. Fr. Stan Swamy applied to the special court on November 6, 2020, seeking a straw and sipper because he is unable to carry a glass due to Parkinson’s disease.

The NIA demanded a response time of 20 days to the submission. The NIA replied on November 26, 2020, that they did not have Swamy’s straw-sipper. Swamy has requested bail for the second time, claiming that he is 83 years old and has Parkinson’s disease.

The jury postponed the next proceeding until December 4, 2020, and instructed the jail officials to respond to his plea for a straw sipper and warm winter clothing. The Taloja jail authorities gave Swamy a sipper 50 days after he was detained, despite citizen uproar. Alongside Stan Swamy, activists Varavara Rao, Vernon Gonsalves, and Arun Ferreira are detained at Taloja jail.

This decision is a direct violation of Article 21 of the Constitution, which protects the right to personal liberty. Bail is the law for Judge Shah, and jail is the exception; the Supreme Court, it seems, has made prison the rule and bail the exception. “It seems that we are living in an unofficial state of emergency,” Shah says. He went on to say that today’s courts “lack compassion and respect for the accused’s basic human rights.”

Swamy filed for a bail application under Section 439 of Cr.P.C, in November 2020, but it was denied by a special NIA court on March 22, 2021. The case is still pending in the honourable court and justice is still expected to prevail for “justice delayed is justice denied”.

What is the Unlawful Activities Prevention Act (UAPA), 1967?

The Unlawful Activities (Prevention) Act of 1967 is the pillar of India’s anti-terrorism legislation. It was introduced to control illegal activity, and it has been labelled punitive because of its provisions. It captures the spirit of the Preventive Detention Act, which was passed in 1969 but never implemented. The act has been amended many times over the years to broaden its scope of operation.

The UAPA’s most heinous feature, which makes it even more heinous, is that a person arrested under it can be held for up to 6 months (or 180 days) without even submitting a charge sheet. In comparison, and to emphasise the gravity of the situation, it should be noted that under ordinary criminal law, this duration is only extended to three months (90 days), during which the detained person is entitled to bail.

Amendment of 2019

Only organisations may be barred or punished for committing a terrorist act at first. However, following the 2019 amendment passed by the Rajya Sabha on August 2nd and received the President’s assent on August 8th, the central government may declare a person a terrorist. As a result, the act’s influence has vastly increased. Although a person may file an objection to such a declaration with the Home Ministry within 45 days. A review committee will also be established, with a retired or serving judge as its chair and three other members, to which the aggrieved party will submit a request for review.

The amendment has been slammed for giving the government despotic power to suppress dissent. It gives the government the authority to classify a group or an individual as a terrorist organisation or terrorist if the following conditions are met:

It commits or participates in acts of terrorism.
Prepares or promotes terrorism.
Otherwise involved in terrorism.

The opposition has repeatedly expressed fears that the new amendment could be used against civil society advocates working for political opponents. A convicted person is presumed, “innocent until proven guilty” in criminal law. The criminal justice system is built on this theory. UAPA, particularly after the 2019 amendment, runs counter to this theory. As a result, it has been accused of violating the International Covenant on Civil and Political Rights, which was signed in 1967.

After the arrest of father Stan Swamy in connection with his involvement in the 2018 Bhima Koregaon incident, which shook Maharashtra, the law is once again at the centre of a controversy. Many prominent activists have been arrested under UAPA in the last year, causing outrage among political circles. Even retired Supreme Court judge, Justice Madan Lokur, has expressed concern over the use of UAPA to curb dissent.

Organisations move against the use of the draconian law of UAPA (Unlawful Activities Prevention Act)

In a virtual event called, “I Cannot Be Framed”, 110 human rights organisations, including the Peoples Union of Civil Liberties (PUCL) and Citizens for Justice and Peace (CJP), came together to show their support for Father Stan Swamy and the other 15 people charged in the Bhima Koregaon case. They gathered to commemorate the one-hundredth day of Father Stan Swamy’s imprisonment and to honour all Human Rights Defenders’ sacrifices and struggles.

The program’s parameters were to:

Releasing Father Stan Swamy and the other 15 people wrongly accused in the Bhima Koregaon case.
Identify and apprehend the true perpetrators of the violence that occurred on January 1, 2018.
The Unlawful Activities (Prevention) Act should be repealed.

Professor Apoorvaanad, who has boldly written on the issues of national development and growing communalism, moderated the case. Members of India’s indigenous communities gave a stirring show, playing a range of drums and other traditional instruments.

Father Stan’s detention, according to Xavier Dias, an activist, humanitarian, and writer who has worked very closely with him in the Chaibasa district, is unfortunate, but it gives everyone courage to expect to charge the same amount. He urged all of the stakeholders and viewers to stand up and battle the state’s harsh policies.

Conclusion

In the end, I would like to conclude as rightly said by Honourable justice D.Y. Chandrachud – “Dissent is the safety valve of a Democracy.” Where the use of state machinery to suppress criticism instills terror, the rule of law is violated. The NIA is delivering a signal to the rest of society of the human rights world with the arrest of Stan Swamy’s, that there is no extent to which they will not go to suppress and crush dissent. Stanislaus Lourduswamy, also known as Stan Swamy, believes that no matter what faith, community, or ethnicity one belongs to, one must stand up and fight for justice and reality. For him, the most important thing is to be humane in all of his interactions. Other human rights defenders in India strongly condemn Fr. Stan Swamy’s detention, demand his immediate release, and call for an end to arbitrary arrests of law-abiding people. He has always operated within the country’s constitutional and democratic frameworks. That anybody who may believe he was attempting to “overthrow the nation’s constitution” is not only absurd but also a complete travesty of justice.