The Working Group on Arbitrary Detention, besides expressing its grave concern over his death in judicial custody, has sought answers from the Indian government on four specific questions
THEdeath of Jesuit priest and Adivasi rights activist Stan Swamy in judicial custody will “forever remain a stain on the human rights record of India”, says a new brief by the United Nations’ Working Group on Arbitrary Detention. The group had formally adopted its opinion on Swamy’s death during its 92nd session on November 16, last year but made its comments public just this week.
The Working Group transmitted to the Indian Government a communication concerning Swamy on May 12 last year, but did not receive any response. India is a party to the International Covenant on Civil and Political Rights [ICCPR]. In its communication, the Working Group urged the Government to prioritize the use of non-custodial measures at all stages of criminal proceedings, including during the pretrial phase, in the current context of a global pandemic. Furthermore, its source submitted that placing Father Swamy in prison increased his risk of contracting COVID-19 and thus put his life at risk. The failure of the Government to heed these prescient warnings led to his avoidable death in custody, the opinion states.
Swamy was one of the 16 persons accused of fomenting caste violence in the Elgar Parishad (Bhima Koregaon) incident, and had been incarcerated at the Taloja jail at Navi Mumbai, after being charged with the UAPA or Unlawful Activities (Prevention) Act, 1967, a draconian anti-terror law. The 84-year old activist and priest was suffering from several ailments, including Parkinson’s disease, and died in judicial custody on July 5 last year after being admitted to a Mumbai hospital. Prior to his death, Swamy had also contracted COVID-19 while in prison. Earlier, his lawyers also had to file an application seeking a straw and a sipper and waited a month to receive the same for drinking water, since Parkinson’s made it difficult to drink with his hands.
The Working Group noted that it was “shocked” by its source’s submission that India’s National Investigation Agency [NIA] court in Mumbai initially rejected Father Swamy’s request for a straw and sipper. Highlighting that the request was met 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”.
It also concluded that Father Swamy’s arrest and detention “lacked a legal basis”, and added that the Indian government also “had the opportunity to rebut these allegations but did not do so.”
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 Articles 19 and 21 of the Universal Declaration of Human Rights [UDHR], and Articles 19 and 25 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 Articles 2 and 7 of the UDHR and Articles 2(1) and 26 of the ICCPR.
According to the Working Group, the appropriate remedy would be to accord Father Swamy’s family an enforceable right to compensation and other reparations, in accordance with international law. It also urged the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Father Swamy, and to take appropriate measures against those responsible for the violation of his rights.
The group requested its source and the Indian government to provide information on the following questions, within six months from the publication of their opinion:
Whether compensation or other reparations have been made to Fr. Swamy’s family;
Whether an investigation was conducted into the violation of Swamy’s rights and death in custody and outcomes of the same;
Whether India’s government has made any legislative amendments or changes to harmonize the Indian laws with its international obligations as per the present opinion: and finally,
Whether any other action has been taken to implement the present opinion.
The opinion concluded by urging the 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.”
When does the Working Group regard deprivation of liberty as arbitrary?
According to its opinion, the Working Group regards deprivation of liberty as arbitary when it is clearly impossible to invoke any legal basis; when it results from the exercise of the rights or freedoms guaranteed by articles 7,13, 14, 18,19, 20 and 21 of the UDHR, and, insofar as State parties are concerned, by Articles 12, 18, 19, 21, 22, 25, 26 and 27 of the ICCPR; when the total or partial non-observance of the international norms relates to the right to a fair trial, established in the UDHR and in the relevant international instruments accepted by the States concerned; when asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy; and when it constitutes a violation of international law on the grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status, that aims towards or can resuilt in ignoring the equality of human beings.
What did the Working Group’s source have to say on Father Swamy?
The Working Group’s source stated that Father Swamy was a Jesuit priest, social analyst and activist for the rights of indigenous people. He had spent decades defending civil rights and the right to self-determination of the indigenous Adivasi and Dalit people, working mostly on issues of displacement. He was an important mentor for generations of human rights defenders in Bengaluru, Tamil Nadu, Jharkhand and other parts of the country, the source noted.
There was no legal basis for the detention of Father Swamy, as the officials of the NIA arrested him in an irregular manner. On October 8, 2020, the three officials who picked up Father Swamy at his residence were not in uniform, and were not wearing accurate, visible and clear identification or name tags designating them as NIA officials, the source noted. Besides, the NIA officials did not show Father Swamy any warrant or summons, the source added. No one from the Bagaicha campus, where Father Swamy resided at the time of his arrest, was formally informed of the reasons why the authorities were taking him away from the campus, the source further pointed out. The source has raised sufficient doubts as to whether the arrest memorandum was made at the time of the arrest, and countersigned by Father Swamy.
The source has disclosed further violations of the safeguards to which Father Swamy was entitled to. One was that he was not brought before any jurisdictional magistrate in order to obtain a transit remand before undertaking air travel from Ranchi to Mumbai on October 9, 2020. Moreover, as the charge sheet in the case was filed the day after Father Swamy was arrested, it demonstrated that he was not required for any further investigation or interrogation in the case.
The arrest during the COVID-induced national lockdown period of Father Swamy, who had earlier fully cooperated all along in the investigation, was not viewed as a flight risk, not perceived as interfering with investigation or evidence, and was arbitrary and an abuse of the process of law, the source has argued.
Interestingly, the Working Group has requested the Government to disseminate its opinion through all available means and as widely as possible.
All eyes are now on the Government whether it will comply with the Working Group’s opinion.