Broaden definition of custodial death, say lawyers after Stan Swamy dies in hospital

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New Delhi, Jul 6 (PTI) The term custodial death is usually used in connection with physical torture inflicted on prisoners by police, prison or other authorities and the death of priest-activist Stan Swamy does not technically qualify as one, several lawyers said. They also stressed on the need to widen the definition of the term.

Debate on what constitutes custodial death has intensified after the 84-year-old cleric, who was arrested under the anti-terror law, Unlawful Activities (Prevention) Act, breathed his last in a Mumbai hospital on Monday.

His death was announced in the Bombay High Court, where he was fighting for bail on health grounds. The Jesuit priest, who was arrested for his alleged role in the 2017 Bhima Koegaon case, had been on a ventilator since Sunday after his health worsened rapidly.

Prominent lawyers expressed the hope that institutions entrusted with the responsibilities of protecting every individual will ensure that an anti-terror law like the UAPA is not misused by security agencies, and people arrested under it are not kept in custody 'indefinitely'.

“Stan Swamy was in the custody of the court. In past, the term custodial death has been used in connection with physical torture on prisoners by the police, prison authority, or any other authority. Stan Swamy was hospitalised and getting treatment in custody,” said senior advocate Rebecca John.

“I would like to broaden the definition of custodial death, which has had a narrow definition so far… because as he (Stan Swamy) was admittedly suffering from a life-threatening illness and hospitalised in custody, neither our prison system nor our agencies and courts thought that it is necessary to release him on bail,” she added.

In her view, the death of the priest-activist, who was suffering from Parkinson’s disease and had also tested positive for Covid, has many important lessons.

According to Geeta Luthra, also a senior advocate, his death signifies a 'failure of our system'.

Describing it as 'extremely disheartening', she said, “We allowed him to die in custody… he was in hospital because his condition had worsened so much that the risk of him dying was looming over our heads.' Every person, Luthra stressed, deserves pre-trial bail.

“You may agree or disagree with any human being, but surely, they deserve liberty till the matter is pending in court. UAPA is being used too casually and the fallout of this will be the liberty of innocent citizens,' she said.

'… if a person is under trial, the courts should follow the principle of bail and not jail,' she said.

John said Swamy, who had to fight even to get a sipper and a straw to enable him to drink water, was not provided medical treatment on time. She said any individual, if on the wrong side of the law, needs to be punished. At the same time, institutions need to ensure they are provided with medical aid as and when necessary.

“The need is to see how this law is being misused and how you cannot keep people in custody indefinitely without trial….,' John said.

Swamy’s lawyer Mihir Desai said Swamy was implicated in a fabricated case.

“We have lost him and, in that sense, we have failed him. But we must carry on the fight that he believed in,' the Mumbai-based lawyer said.

The Elgar Parishad case is related to inflammatory speeches made at a conclave held in Pune on December 31, 2017, which, the police claimed, triggered violence the next day near the Koregaon-Bhima war memorial located on the outskirts of Pune.

The case was taken over by the National Investigation Agency (NIA) on January 24 last year. The agency will formally inform the trial court about the death of Swamy and the charges against him would be 'abated'. The cleric was the sixteenth person to be arrested in the case last October. People in the case have been booked under various sections of the Indian Penal Code and the UAPA.

The NIA has alleged that Swamy was in contact with 'conspirators' -- Sudhir Dhawale, Rona Wilson, Surendra Gadling, Arun Ferreira, Vernon Gonsalves, Hany Babu, Shoma Sen, Mahesh Raut, Varavara Rao, Sudha Bharadwaj, Gautam Navlakha and Anand Teltumbde -- to further the group's activities.

It also alleged that he had received funds through an associate for furthering their agenda. Besides, he was convenor of the Persecuted Prisoners Solidarity Committee (PPSC), a frontal organisation of the CPI(Maoist), officials claimed.

They said literature, propaganda material of the CPI(Maoist) and documents related to communications for furthering the group's programmes were seized from his possession.

Ahead of his arrest in October last year, Swamy had posted a video saying the NIA had been interrogating him and had questioned him for 15 hours in a span of five days.

'I have never been to Bhima Koregaon for which I am being made an accused,' he said. He added that he had asked for questioning through video conference and hoped that better 'human sense' would prevail.

'...what is happening to me is not something unique happening to me alone, it is a broader process taking place all over the country. We all are aware how prominent intellectuals, lawyers, writers, poets, activists, student leaders are all put in jail because they have expressed their dissent or raised questions about the ruling powers of India,' Swamy had said in the video. PTI AAK SP SKL MIN MIN

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