Justice minus humanity is injustice

The time has come to prove that we, the citizens, jailers, police, judges (from magistrates to top) and political rulers, MPs and doctors, are human beings. An average man cannot understand the due process or nuances of justice system. But he can understand that judicial courts and prison officers have refused to allow the straw-sipper for Father Stan Swamy, who cannot hold a glass of water because of shaking of hand due to Parkinson's disease. Whether any anti-terror law empowered the authorities to deny this human health essential need? Or we lost all values of humanity at every level including judiciary?

A professor of different faculty asked a fundamental question why on the same facts and law a court says yes and the other says no. As a student of Constitutional law, I think this fundamental doubt is more powerful than guaranteed fundamental rights and unenforceable fundamental duties in our Constitution. Any length of explanation cannot clear this doubt. Due process suffers if it is in the hands of undue personalities.

The cruelty

The cruelty of the prison officials and courts is reflected when they deferred or questioned or delayed the plea for a straw-sipper for Swamy. Courts continuously rejected his bail applications including some on medical grounds. The courts were either silent or ignored the plea for sipper. The National Investigating Agency opposed the plea for sipper. On what grounds we do not know. Perhaps, they also do not know. Is it because a sipper in the hands of Parkinson patient is threat to national security? When his friends and relatives sent scores of sippers, the prison authorities rejected them. That means they were also not allowed inside.

Shaking hands

On October 9, 2020 it was submitted to the Special Court in Mumbai that Swamy could not even sign the Vakalatnama, as his hands were shaking, and he could not hold the pen. Then court was kind enough to allow him to affix thumb impression. Swamy was sent to judicial custody straight away because the NIA did not seek his custodial interrogation. This means there was no need for his custody. If it is mandated that he should be available for every inquiry or prosecution could have been enough. When his lawyers asked court to release him on medical bail based on humanitarian grounds, the NIA said there is no such provision in UAPA, and the court agreed. There is no place for humanitarian grounds at all, what a wonder?

Law that did not provide for sipper

Whether history recorded any petition for a straw-sipper? On November 6, Swamy lawyer's petitioned to the Court to provide sipper and straw as he cannot even take water without it. His counsel said when he was arrested in Ranchi Jharkhand, a packed bag was taken with his belongings, that included his clothes and a steel sipper and straw to help him drink water or tea without spilling. The prayer was for return of the straw and sipper. The NIA said it had not seized any items belonging to Swamy. After NIA's contentions, the special court has rejected the request for sipper. The judge did not ask NIA to prove the genuineness of their claim that nothing was confiscated by them.

Disability law

National Platform for the Rights of the Disabled wrote to NHRC that, "at the time of his arrest, Father Swamy was carrying a bag with a straw and sipper, but this was seized by the NIA. The NIA refused to hand them back and jail authorities refuse to provide him these inexpensive but essential assistive items. He has trouble eating because of tremors. He is unable to take a bath, bring water or wash clothes. Father Stan also has serious hearing problem and needs hearing aid for both ears".

The right to assistive products, accessible services, barrier-free environment, and reasonable accommodations is mandated by the Rights of Persons with Disabilities Act 2016 (RPWD Act) and there is a legally binding provision under the United Nations Convention on the Rights of Persons with Disabilities that India ratified in 2006.

Muralidharan Vishwanath, General Secretary, National Platform for the Rights of the Disabled, said that it is obligatory that Stan Swamy be provided with requisite age and disability appropriate accommodations, assistive aids including straws and sippers as also human care assistance as required. We beseech you to ensure compliance of rights of prisoners with disabilities as also providing them with reasonable accommodations as mandated by international conventions.

Are we human?

The entire judiciary in India and of the world should have hung its head in shame for such a strict order to save sovereignty and integrity of India, the great. The court said a fresh application could be made to provide him with the items as per jail manual. The jail manuals probably never contain a sentence for sippers and straws, if no patient of Parkinson was imprisoned earlier. When fresh application was filed and that was brought on to the bench, the NIA sought 20 days' time on November 6, 2020 to file a reply, and court readily gave 20 days and adjourned to November 26, 2020, the Constitution day or law-day in India, without asking why you need 20 days to say yes or no to sipper request? Perhaps time has come for Indian judges to prove that they are also human beings besides being judges! It was only after widespread national outcry over refusal to provide him with sipper that they provided him on November 29. He suffered without sipper since his arrest on October 8, 2020.

Prisoners' rights

Over the years, the Supreme Court has in several cases clearly held that prisoners also have certain fundamental rights including those stated above, which in this case are being violated.

Ten opposition parties including the Congress, TMC and DMK have written to President Ram Nath Kovind, urging his intervention in the matter to hold those responsible for the death of Stan Swamy. The letter demands the release of all those detained in the Bhima Koregaon violence case. It also accused the government of non-rightfully treating a patient in custody. Speaking about the activist's condition, it said, "He was denied treatment for his various ailments including debilitating Parkinson's. Only after a nationwide campaign was conducted that even a sipper to drink liquids was made available to him in jail."

No Covid Treatment

A complaint on May 16, 2021 was filed at Maharashtra Human Rights Commission that Swamy lodged in Taloja Central Jail, Navi Mumbai, was being denied medical facility during the COVID-19 period, had not been vaccinated yet and that there was no proper medical care in the jail hospital, that the majority of jail staff had tested Covid positive especially most of the kitchen staff, and the number of under-trial prisoners had also contracted the Coronavirus, yet no RT-PCR tests were conducted there. He was vaccinated after testing positive for Corona. While NHRC, MHRC and Bombay High Court were examining the humanity issues, the Covid infection aggravated. Covid could not wait for the NIA to file chargesheet, the High Court to decide the medical bail, on next date after adjournment and took away Stan Sway who was yet to be accused. On the hearing day (Cannot say that it was las date) the court was kind enough to feel sad after noting the proven fact that he was dead.

(The author is Professor & Dean of School of Law, Mahindra University, Hyderabad, Formerly Central Information Commissioner)