Father Stan Swamy’s death was an international shock the ripples of which can still be felt, and a blot on the record of a State that treats criminal justice as its plaything. His legacy is treasured by his co-accused in the Bhima-Koregaon case inside the prison, and everyone who stands for justice and democracy outside the prison.
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TODAY marks the second death anniversary of Jesuit priest and Adivasi rights activist Father Stan Swamy, one of the 16 persons accused in the Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case.
On July 5, 2021, Swamy died in judicial custody, after being admitted to a Mumbai hospital following a cardiac arrest. Prior to his death, Swamy had also contracted Covid while in prison.
The 84-year-old activist and priest was suffering from several ailments, including Parkinson’s disease, a debilitating central nervous system disorder.
Swamy was arrested on October 8, 2020, and had been incarcerated at the Taloja jail at Navi Mumbai, after being charged under the Unlawful Activities (Prevention) Act, 1967 (UAPA).
Prayers that never came to be
The 11 incarcerated accused persons in the Elgar Parishad case are set to go on a day-long hunger strike today. They pen an imaginary letter from Swamy to the President of India Droupadi Murmu, terming it “Prayers that never came to be”.
In the letter, Father Swamy describes himself as someone who fought for the rights of the tribal people of Bihar and Jharkhand for over half a century. The letter terms his death a “custodial death” or “institutional murder carried out through a series of well-calculated, cold-blooded steps by the state machinery”.
The 11 co-accused have penned an imaginary letter from Swamy to the President of India Droupadi Murmu, terming it “Prayers that never came to be”.
Father Swamy expresses hope that during Murmu’s term, the upliftment of India’s tribal population and other poor and marginalised classes and communities are not reduced to “acts of tokenism”. He warns of increased “fascist attacks on minorities”, threats to fundamental rights, and the frequent calling into question of citizenship and patriotism.
Highlighting the erosion of tribal rights, Father Swamy points out that Adivasis, who are traditional forest protectors or dwellers, are now labelled as forest “destroyers”, including by the Supreme Court when it directed the eviction of over two million forest dwellers.
The letter, voicing an imagined Father Swamy, also refers to the pathalgadi movement in Jharkhand, where Swamy and several others were booked under sedition law for inscribing powers of gram sabha on stone slabs. It points out that the proposed census attempts to deny tribal communities their separate Sarna religion.
Also read: Five years of Bhima Koregaon arrests: CDRO marks ‘black day’
The letter highlights that based on systematic research of undertrial prisoners in Jharkhand by Bagaicha, a non-governmental organisation, Swamy had moved the Jharkhand High Court in respect of the alleged false imprisonment of numerous tribal youth in Maoist-related cases. The State, however, denied the allegations.
In the letter, the imagined Father Swamy claims that in cases of protests or agitation against the government, protestors are criminalised or the environment is “communalised”. When any organisation fails to “toe the line”, its members are harassed using the Foreign Contribution Regulation Act, 2010, or accused of being a front of a terrorist organisation, he asserts. He alleges that freedom of media is similarly suppressed.
On the real Swamy’s incarceration, the imagined Swamy notes that denying him a sipper “epitomised the malice [and] malaise of our criminal justice system.” Jail authorities provided Swamy with a straw and a sipper in December 2020, only after making him wait for over four weeks.
In an application to the National Investigation Agency’s (NIA) special court requesting to be provided with a straw and a sipper, Swamy had averred that he was unable to hold a glass due to Parkinson’s disease. The NIA had asked for four weeks to respond to Swamy’s application.
Father Swamy evoked by the 11 co-accused prisoners through the letter alleges that the real Swamy’s plastic sipper-tumbler was arbitrarily confiscated by the jail authorities, which was followed by the NIA court adjourning the request for a new sipper for almost a month to allow the NIA to file its reply.
The letter points out that a report by Arsenal Consulting, a United States-based digital forensic analysis firm, revealed that Swamy’s computer was the target of continuous malware attacks to have surveillance over his activities.
He claims that the prison superintendent “rushed” to provide Swamy with six sippers, drinking straws, a walking stick, a crutch, a wheelchair, a western commode and a cot after the incident made headlines in the media, as opposed to heeding to inmate needs regardless of the media focus and only as per usual procedure and the requirements of fairness and humane treatment.
The letter also points out that a report by Arsenal Consulting, a United States-based digital forensic analysis firm, has revealed that Swamy’s computer was the target of continuous malware attacks to have surveillance over his activities.
Arsenal’s findings were published in four reports in 2021. Among other things, they revealed that sophisticated malware was used to plant the digital evidence that forms the basis for the prosecution’s case on the devices of two of the accused persons in the case, Gadling and Wilson.
Arsenal Consulting’s report was retained by Father Swamy’s lawyers to analyse electronic evidence seized from his house by the Pune police department before the case was taken over by the NIA.
On December 11, 2022, it was revealed that Swamy’s computer was compromised over the course of three distinct campaigns, beginning on October 19, 2014, and ending with the seizure of his computer by the Pune police department on June 12, 2019.
The letter by the imagined Father Swamy refers to remarks of Justice S.S. Shinde of the Bombay High Court, expressing respect for Swamy’s work after hearing the news of his death during the bail hearing.
It notes that consequently, Justice Shinde withdrew the comments after the NIA’s objections and recused from hearing Bhima Koregaon cases.
Further, the letter claims that in Swamy’s case, the Christian church was targeted due to its role in organising Jharkhand’s tribal population, where he was alleged to be a member of a banned organisation and a local community organisation run by the Jharkhand diocese was made out to be engaged in religious conversion, for receiving unregulated foreign funds and for being a Maoist front.
The letter concludes by highlighting that the Code of Criminal Procedure provides for an inquiry by a judicial magistrate after the death of a person in custody. It notes that while the investigation has been instituted in Father Swamy’s case, the findings are yet to be released.
Apart from the immediate cause of death, Father Swamy form beyond the grave urges the magistrate to dwell into deeper issues, including the failure of the State to take care of its détenus, the failure of the prison department to appoint a doctor when Swamy was admitted to the prison hospital, the subsequent failure of the prison superintendent to apprise the court of the lack of infrastructure to meet Swamy’s medical needs, the deliberate opposition of the prosecution and investigation officer to his medical bail during the pandemic, and Swamy’s arrest by the NIA.
The NIA’s deceit
Another letter on Father Swamy has been penned by Vernon Gonsalves, a trade unionist, activist, academic and co-accused in the Elgar Parishad case, highlighting the failure of the NIA and the jail authorities to consider the special needs of Father Swamy’s fragile condition and to make suitable provisions for his detention.
On Swamy’s “brutally abrupt” arrest by the NIA, the letter by Gonsalves states that the NIA officers had called Swamy to Mumbai under the pretence of interrogation by higher authorities. He was, however, taken directly to the NIA court where Swamy was met with the “cold collusion” of the judge.
Highlighting Swamy’s production before the NIA court, the letter by Gonsalves says, “He (the NIA judge) did not even try to listen to what Stan had to say, nor had he thought fit to question why the NIA, who had filed the chargesheet that day had not needed for asked Stan’s custody for interrogation, and yet wanted a frail, Parkinson’s afflicted 83-year-old to be deposed in a Covid-infested jail.”
In his letter, Gonsalves states that on his arrest, Swamy was taken to a “filthy room” that served as a Covid quarantine facility for new entrants. He was offered an 18-inch space next to the toilets, “with its wetness, slime and stench”.
Describing his encounters with Swamy after he was moved out of the facility, Gonsalves says, “As it usually happened when we talked about him, he would dim down the grim and bring smiles to our eyes.”
Mahesh’s painting
In another ode to his memory, forest rights activist, former fellow of the Prime Minister’s rural development fellowship programme of the Union Ministry of Rural Development and co-accused in the Elgar Parishad case, Mahesh Raut has drawn a painting of Swamy.
The painting shows a happy Father Swamy in his comfort zone—his happy place— among the forest and its various dwellers; dancing Adivasis festooned around his neck; a tiger walking on a branch at his eye-level, ready for a conversation; trees whose roots go beyond the painting, obviously; a bird flying free, like the future; and a deer staring with feminine fury at an unjust world.
Repeated bail rejections
Swamy was denied bail twice by an NIA court in Mumbai. In October 2020, Swamy was denied interim bail filed on medical grounds, on account of his age, pre-existing comorbidities and the prevalence of the Covid pandemic at the time.
Vernon Gonsalves (co-accused) stated that on Swamy’s arrest that he was taken to a “filthy room” that served as a Covid quarantine facility for new entrants. He was offered an 18-inch space next to the toilets, “with its wetness, slime and stench”.
Reportedly, the NIA opposed the plea on the ground that Swamy was taking “advantage of the pandemic” to apply for bail.
On March 22, 2021, the NIA court, presided by Judge Dinesh E. Kothalikar, again rejected Swamy’s bail application due to the seriousness of the allegations against him, which warranted the collective interest of the community to outweigh the right of personal liberty of the applicant.
The judge also said old age or his alleged sickness would not go in his favour, “so that discretion to release the applicant can be exercised”.
Following the rejection, over 2,500 people in India and around the world signed a letter expressing their “shock” over the NIA court’s decision. The letter demanded Swamy’s immediate release from jail and the repeal of the UAPA.
On May 28, 2021, a Bombay High Court vacation Bench of Justices S.S. Shinde and N.R. Borkar ordered the admission of Father Swamy to the city’s Holy Family Hospital brushing aside the NIA’s objections.
While his medical bail plea and a fresh plea challenging Section 43D(5) (stringent provisions for grant of bail) of the UAPA at the Bombay High Court remained pending, Swamy died at the hospital on July 5, 2021.
In his undecided medical bail plea, Swamy had stated that he was suffering from various ailments, including Parkinson’s disease, hearing loss in both ears, abdominal pain, as well as injuries to his arms.
The plea highlighted that Swamy was already in an advanced stage of Parkinson’s as he was unable to talk, walk, or carry out daily chores without help and his health was deteriorating every day.
Condemnation
The tragic loss of Father Stan Swamy sparked mass condemnation and anguish across the country and around the world, including by several activists and politicians.
On July 7, 2021, Father Stan Swamy’s friends and family members issued a statement, “[T]his is not a natural death, but the institutional murder of a gentle soul, committed by an inhuman State. Having spent his life amongst the Adivasis in Jharkhand fighting for their right to resources, Father Stan did not deserve to die in this manner.”
Condemning Swamy’s arrest, Jharkhand’s Chief Minister Hemant Soren had said that Swamy had worked in Jharkhand for years, in the remote faraway villages, wandering in the jungles to ensure that Adivasis, Dalits and minority populations could be reached. Reportedly, Kerala’s Chief Minister, Pinarayi Vijayan and Dravida Munnetra Kazhagam leader, Kanimozhi termed Swamy’s arrest as “an attack on civil liberties”.
On November 16, 2021, during its 92nd session, a brief by the United Nations Working Group on Arbitrary Detention stated that Swamy’s death will “forever remain a stain on the human rights record of India”.
India is a party to the International Covenant on Civil and Political Rights (ICCPR). In its communication, the Working Group urged the government to prioritise the use of non-custodial measures at all stages of criminal proceedings.
The Working Group noted that it was “shocked” by its source’s submission that the NIA court initially rejected Father Swamy’s request for a straw and sipper. Highlighting that the request was acquiesced to only after public outrage as to the Jesuit priest’s medical condition, the opinion also said that “the Working Group is gravely disappointed that public outrage was required for Father Swamy to be treated with humanity.”
Following the rejection of his bail plea, over 2,500 people in India and around the world signed a letter expressing their “shock” over the NIA court’s decision.
The opinion notes that Swamy’s detention was an outcome of his “peaceful exercise of his right to freedom of opinion and expression, as well as his right to take part in the conduct of public affairs,” and hence contravened Article 19 (right to freedom of opinion and expression) and Article 21 (right to take part in the government) of the Universal Declaration of Human Rights (UDHR), and Article 19 (right to hold opinions without interference) and Article 25 (right to take part in conduct of public affairs) of the ICCPR.
Further, the brief reiterated that Swamy was deprived of his liberty “on discriminatory grounds” because of his status as a human rights defender and owing to his stands seeking government accountability.
The group concluded that the deprivation of his liberty violated Article 2 (prohibition of discrimination) and Article 7 (equality before the law) of the UDHR and Article 2(1) (ensuring rights to all individuals) and Article 26 (equality before the law) of the ICCPR.
The opinion concluded by urging Indian authorities to “urgently conduct a thorough, effective and independent investigation” into the circumstances leading to Swamy’s death in judicial custody.
It also sought a detailed report by an independent expert on the medical and other care provided to Swamy after his arrest, and noted that the investigation “must be conducted in a transparent manner with the full involvement of his family members and their legal and medical representatives.”
On June 2, 2022, Father Swamy was posthumously honoured with the Martin Ennals Award, which is considered the Nobel Prize for human rights defenders.
Other accused persons
In connection with the Elgar Parishad–Bhima Koregaon case, on June 6, 2018, Pune police arrested Surendra Gadling who is a Dalit rights activist and editor of the Marathi magazine, Vidrohi.
A brief by the United Nations Working Group on Arbitrary Detention said that Swamy’s death will “forever remain a stain on the human rights record of India”.
They also arrested Sudhir Dhawale, an activist, researcher and a member of the committee for the release of political prisoners, Rona Wilson who is the former head of the English department at Nagpur University, and Shoma Sen, a Dalit and women’s rights activist, along with Mahesh Raut.
On August 28, 2018, the police arrested Dr P. Varavara Rao, an activist, poet, writer and teacher, Sudha Bharadwaj, a trade unionist, activist and lawyer, Arun Ferreira, Vernon Gonsalves and Gautam Navlakha, a human rights activist and journalist. They were lodged in Navi Mumbai’s Taloja jail.
In the subsequent months, Father Stan Swamy, along with Dr Anand Teltumbde, a scholar, writer and civil rights activist, Hany Babu, an anti-caste activist, members of the cultural troupe Kabir Kala Manch who are a group of musical performers and anti-caste activists, along with Sagar Gorkhe, Ramesh Gaichor and Jyoti Jagtap, were all arrested.
The trial is yet to begin in the Bhima Koregaon case. The prosecution has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses. Many of the accused persons have now spent almost five years in judicial custody without trial.
Three of the accused persons, Sudha Bharadwaj, Varavara Rao and Anand Teltumbde have managed to secure bail so far. The others remain behind bars.
