“Our justice system even in grave cases, suffers from slow motion syndrome which is lethal to ‘fair trial’ whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.”
Justice V.R.Krishna Iyer
How one reacts to death of Stanislaus Lourduswamy (July 05, 2021)? We can blame it on the system – system being police force, and judicial process. We can blame the government. Government will pass the buck to judiciary saying they kept denying the bail petitions. We will go in circles. To me, blaming the system is an easy getaway. People are the system. The whole process reflects integrity, lack of it, of the people involved, whether it is bureaucracy, police force, or judiciary. Those who are involved can’t hide behind UAPA’s stringent bail requirements. Law’s stringency is even more reason that this law needs to be used sparingly and must be applied based on strong evidence. Even to get a sipper for Stan Swamy (due to his health condition), his lawyers had to appeal in court since jail authorities refused to provide him with one. And court took 3 weeks to give their decision.
Blame doesn’t stop there. Citizens play a role too by being silent spectators. No, we don’t need to take sides whether the accused is innocent or guilty. But as citizens we need to be aware of the criminal justice process, especially when the process itself becomes a punishment. For all the claims made by NIA that Stan Swamy was a threat to national security, he was never interrogated, not even once, during his 9 months in jail. Based on the media coverage pretty much every information about him is all out there. 84 years old. Born in Trichy and moved to Jharkhand in 1970s. Stan Swamy worked for the rights of Adivasis in Jharkhand. When his house was raided before his arrest, all he had was a laptop, few chairs, and clothes. He was accused of helping Maoists, involved in activities to destabilize the nation, religious conversion, connected with Bhima Koregaon case and possibly few more. So far, no evidence has been furnished by the cops other than broad possibilities. All that could be gathered from the available material is that he became an inconvenience to socio-political-economic special interest groups. Of course, with his death, as citizens we will never know what crime Stan Swamy may or may not have committed, we will never know the truth, but what we can surely infer is that our criminal justice system has failed him, and our judicial process is left wanting.
Why it is so harder to get bail even on medical grounds under UAPA? From The Hindu4 article, … just like the other special laws dealing with narcotic drugs and the now-defunct laws on terrorism, the UAPA also modifies the Code of Criminal Procedure (CrPC) to give it more teeth…. Under section 43D(5) of the Act, bail cannot be granted to a suspect if the court is of the opinion that there are reasonable grounds to believe that the charges are prima facie true. A Supreme Court on this has clarified that this meant that the court considering bail should not examine the evidence too deeply, but must go by the prosecution version based on broad possibilities. This means that the onus is on the accused to show that the case is false but without inviting the court to evaluate the available evidence…. virtually rendering it impossible to obtain bail until the completion of the trial.
But Stan Swamy’s case is not unique or an anomaly. Like Stan Swamy, there are many languishing in jail for years without trial. Based on undertrial population in prisons, India ranks 15th out of 217 countries. Undertrials3 prisoners formed 70% of the total population in 20191. This percentage has been consistently high, at an average of 66.97% over the past years. Nearly 25% of them languish in jail for more than a year, few going above 5 years. One of the prime causes for these high numbers is delay in conducting trials. This is even though accused persons have a right to speedy investigation and trial5 under the Article 21 of the Constitution. What is really concerning is many undertrials will spend more time in jail than the sentence they would have got had they been convicted. So, process Stan Swamy went through is not a glitch in the system, it is the feature.
Irrespective of the party, post our independence both union and state governments have never hesitated to use draconian laws like UAPA (remember MISA, TADA, POTA?), law of sedition, IT Act to file cases on anyone who is critical of the ruling party or perceived as a threat to ruling elite with an intent to suppress dissent and send a strong message to the rest. Outcome is irrelevant here since process is the punishment. As Aleksandr Solzhenitsyn said, unlimited power in the hands of the limited people always leads to cruelty.
Institutions, whether it is judiciary, executive, or police force, will try to wash their hands off by shifting the blame. Me being a pessimist, all they need to do is give it a week for a new crisis to take over the imagination of the people. Whether something comes out of this or not, India and its citizens will carry the collective guilt for lifelong.
References:
- The State of Undertrial Incarceration in India
- 2 of 3 prisoners in Indian jails are undertrials
- From a reading of Sections 428 and 436A of the CrPC, and the 78th Report of the Law Commission of India, it is clear that an undertrial prisoner denotes an un-convicted person who has been detained in prison during the period of investigation, inquiry or trial for the offence he/she is accused to have committed, under any law. So, it includes cases where the charge sheet has not been filed or the trial has not commenced. Undertrial prisoners include persons charged with non-bailable offences, who have been denied release on bail, or persons charged with non-bailable offences (who have been granted bail by court) or with bailable offences (for whom bail is a matter of right), but fail to furnish bail bond because of inability to find surety etc.
- What makes the UAPA so stringent? (From The Hindu)
- Right to speedy trial: an inalienable right under Article 21 of the Indian Constitution