Was it a different rule of law for Fr Stan Swamy, asks Olav Albuquerque
Mika Azizi

The custodial death of the 84-yer-old Jesuit priest, Fr Stan Sway, who was repeatedly denied bail under the Unlawful Activities Prevention Act (UAPA) must be contrasted against the treatment meted out to former Home Minister Anil Deshmukh who refused to appear three times in succession before the Enforcement Directorate for allegedly extorting Rs 100 crore per month which he allegedly sent to his private trust after laundering through a layer of companies. While the Jesuit priest died in judicial custody after being denied bail, it is unlikely Deshmukh will ever be jailed.

The so-called ‘rule of law’ must be applied equally to both Fr Stan Swamy and Anil Deshmukh, because Article 14 guarantees the law will be applied equally to all Indian citizens, irrespective of their status. The Union government told the United Nations Human Rights Commission and the European Union that ‘the rule of law’ was followed in Fr Stan Swamy’s case. If that is true, why was he allowed to contract Covid-19 in Taloja jail when undertrials were sent home? Post-Covid-19 complications may have weakened his lungs, leading to pulmonary infection. The NIA did not interrogate him for a single day after strongly opposing his bail. Was this adhering to ‘the rule of law’?

Study in contrast

On the one hand, you had an 84-year-old tribal rights activist priest working for the uplift of tribals in Jharkhand without the state machinery at his disposal - unlike Anil Deshmukh. He was accused of being a Maoist and one of the plotters in the Bhima-Koregaon case. On the other hand, former home minister Anil Deshmukh, has used the courts to thwart a free-and-fair investigation into his alleged misdeeds of amassing crores of rupees.

Whether Deshmukh did this for his party or his family is a matter of speculation. Ironically, the same Bombay high court bench of Justices S S Shinde and N J Jamadar heard the bail pleas of both Fr Stan Swamy and Anil Deshmukh. Deshmukh had the Nationalist Congress Party chief Sharad Pawar defending him, although the statement of several bar owners has been recorded, of having paid Rs 4.5 crore as ‘good luck money’ to Deshmukh’s Man Friday, sacked cop Sachin Vaze.

The Enforcement Directorate (ED) has told the high court there are more than Rs 50 crore of suspicious transactions involving Deshmukh’s dozen-or-so companies and his trust, which runs professional colleges. But the Jesuit priest who died in custody had taken the vows of poverty, chastity and obedience to his superiors who would have had to defrock him had the NIA’s allegations been proved true.

Differing application of law

The same ED attached assets worth over Rs 65 crore, including properties linked to a firm controlled by Maharashtra Deputy Chief Minister Ajit Pawar in connection with the Maharashtra State Cooperative Bank (MSCB) scam. It is the same ED which arrested Girish Chaudhary, NCP leader and former Maharashtra Revenue Minister Eknath Khadse’s son-in-law in alleged money-laundering of Rs 61.25 crore in a land deal. Deshmukh, Pawar and Khadse will proclaim they are being targeted by the Modi government, as they are in power in Maharashtra. The law is applied differently to different suspects, making a mockery of the right to equal treatment of the law and the rule of law.

The alleged antics of Anil Deshmukh also fall within the gamut of the Unlawful Activities Prevention Act, apart from the Prevention of Money Laundering Act and the Prevention of Corruption Act. Deputy Chief Minister Ajit Pawar had belittled a drought-hit farmer Bhaiyya Deshmukh who was on a fast in 2013. “If there is no water in the dams, should we urinate into them,” he had asked but was forced to apologise later.

Dilly-dallying over straw & sipper

The treatment meted out to Fr Stan Swamy, compared to Anil Deshmukh or Eknath Khadse is as different as chalk from cheese. Anil Deshmukh has already approached the Supreme Court, where he will engage top lawyers to thwart the ED from collecting evidence against him. But despite the NIA denying that Fr Stan Swamy was not given a sipper to drink water, the NIA special court adjourned for three weeks an application of the Jesuit priest seeking this sipper when it could have been immediately granted.

This implies Fr Stan Swamy’s rudimentary fundamental right to life in judicial custody was ignored, while Deshmukh, Pawar and Khadse have been handled with kid gloves. Hence, the government’s rebuttal to the United Nations and European Union that the “due process of law had been followed in Fr Stan Swamy’s case” is unsatisfactory because the state is responsible for Fr Stan Swamy contracting Covid-19 in jail when the NIA did not need to interrogate him.

Too old to flee

It is well-settled law that even in heinous crimes such as waging war against the state, if a man is too old to threaten witnesses or flee abroad to avoid facing a trial, he should be granted bail. But the special NIA court declared the collective interests of society overrode the fundamental rights of Fr Stan Swamy, though this priest was too weak and frail to walk or even drink a glass of water on his own.

Hence, we must conclude that the right to life and liberty is guaranteed to those who can afford costly lawyers - like former home minister Anil Deshmukh, deputy chief minister Ajit Pawar and Eknath Khadse, from the same political party. But priests like Fr Stan Swamy, who cannot afford the fees of top-notch lawyers like Harish Salve are treated differently. Had he been refused bail expeditiously, the Jesuit priest could have approached the Supreme Court, just like a star news anchor who was immediately granted bail after being accused of abetment to suicide.

The infirm priest told the Bombay high court an ayurvedic doctor had prescribed anti-psychotic drugs in Taloja jail, though the Supreme Court has clearly banned ayurvedic doctors from practicing allopathy. Swamy’s medical reports from J J hospital clearly proved his health was precarious in the Taloja jail. Adjourning his bail plea, the division bench of Justices S S Shinde and N J Jamadar directed he be treated in Holy Family Hospital, instead of disposing his bail plea expeditiously.

Loss of face

India would have been saved loss of face in the United Nations and our Opposition would not have alleged the death of Fr Stan Swamy was a custodial murder if the same bench had disposed the bail application immediately. Mary Lawlor, the UN Special Rapporteur on Human Rights Defenders shared her concern with Eamon Gilmore, the European Union Special Representative for Human Rights, who had raised the case of Fr Stan Swamy repeatedly with India. Student groups, including from IIT Bombay, have protested the ‘institutional murder’ of the Jesuit priest.

On being told the priest had died at 1.30pm on Monday in Holy Family Hospital, the bench of Justices Shinde and N J Jamdar reacted by saying, “We are shocked. We have no words to express….” These platitudinous expressions will not bring back the dead priest, who would have died among his beloved tribals at Ranchi if not for the syndrome of adjourning urgent bail matters.

The writer holds a PhD in law and is a senior journalist-cum-advocate of the Bombay high court

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