'There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.'-Charles-Louis de Secondat

The recent deaths in custody of two men in Tamil Nadu has once again spotlighted the perennial malady of police violence. One of the worst failures of justice system was the case of Father Stan Swamy whose ill-treatment led to his death in prison in July 2021. The Nordic countries have one of the lowest recidivism rates in the world. Quite interestingly, they have the softest prison rules which aims to ensure smooth entry of criminals into the real world and not like other countries treating prisoners like dirt and mollycoddling them which results in them coming out dirty and offending again.

The issue of authorities abusing and torturing the prisoners dominated headline in 2021 due to the tragic death of 84-year-old tribal activist Stan Swamy. The National Investigation Agency (NIA) and the prison authorities went to great lengths to deny him bail and the most basic of necessities which he needed as an old man suffering from Parkinson's. According to various testimonies by the former inmates there, the prisoners were left to just animal existence and were cramped up liked caged animals without any basic healthcare facilities and that too in a prison where majority of the inmates are undertrials. We are already very late in acknowledging the human rights of prisoners advocated by many organizations such as the UN and the Human Rights watch when these rights have been accepted in many countries of the world.

This article aims to deal with the justice machinery involved be it the prison authorities or the magistrates who more often than not fail to deliver the needful and seeks to fix accountability on their part. This article seeks to analyse this through the lens of the much-ignored Stan Swamy's case to do justice to him and to million others who have fallen prey to this misery time and again. There are multiple angles and reasons for the death of India's oldest terror accused (like the draconian UAPA, denial of medical bail, harassment of under trials etc.) but the mismanagement on the part of the prison authority and the judges is colossal. So, with Swamy's case at hand this article will highlight the major flaws in the Indian Judicial and Prison system and the immediate need to address them before another person succumbs to torture by the bleak justice system.

Background
Father Stan Swamy was the oldest and the last person to be arrested in connection with the Elgar – Parishad – Bhima Koregaon case with alleged Maoist links. He was a Jesuit priest and a very active tribal rights activist. He was put in Mumbai's Taloja jail in Mumbai on October 8, 2020, by the NIA. Stan Swamy, owing to his age and medical ailments, was very weak and needed proper medical attention. He had Parkinson's, lumbar spondylosis, had undergone two hernia operations, had frequent periods of memory loss and his hearing was impaired but it still took 50 days for NIA and the jail authorities to provide him with a sipper and a straw.

He was also tested positive for Covid on May 30,2021.

The NIA Court kept rejecting his bail pleas and failed to acknowledge his deteriorating medical condition in the jail. All these arrests and foul play for a case which is apparently meritless in wake of substantive evidence coming up like the report by Arsenal Consulting, a US-based digital forensics consulting company, which concluded that the computers of many accused were "infected with a malware" and the documents found were planted.

The Taloja jail factor:

The prison authorities failed miserably in their duty of care towards Stan Swamy and left him in the prison to rot. Firstly, when Swamy was arrested, his custody was not sought by the NIA even once. Charges as serious as plotting to kill the Prime Minister should have made NIA interrogate the arrestee in due course of time but the glaring omission on its part is reprehensible.

1. When, owing to the covid-19 scare, all other prisons were being emptied, Maharashtra's Taloja jail at that was too overcrowded as it had a capacity of 2124 against the then intake of over 3000 prisoners which shows its neglect of health care conditions of Prisoners. Adding to the injury, the prison had just 3 ayurvedic doctors at the disposal of the 3000 people.
   
   Now this is a problem that is consistently hampering the justice administration system: The problem of overcrowded prisons. The most recent Prison Statistics Report 2019 by the National Crime Record Bureau shows that the number of prisoners exceeding the capacity of prisons in India have been the highest in this decade which is a problem of concern. According to the report, as on 31 December 2019, the total capacity of India's prisons stood at 4, 03,700 while the number of prisoners stuffed in these prisons are 4, 78,600: a whopping 118.5%.
   
   The report highlights the medical negligence on the part of prison officials also and according to the same report 13.2% of the prisoners are above 50 which in this pandemic can be disastrous owing to the constant movement of prisoners from one prison to another and also being released and then detained which will lead to them being spreaders of this virus. A total of 1,775 prisoners died in India during 2019, while they were in custody. Out of this, 1,544 were natural deaths which anyways get affected by the prison atmosphere, while 165 were categorized as unnatural deaths.
   
   Dr. Kafeel Khan, who was charged under NSA back in 2020 for his anti CAA (Citizenship Amendment Act) speech wrote a letter in which he described the deplorable state he was living in. Relaying the dangerous prison conditions, Dr. Khan wrote, "With just one attached toilet, 125-150 inmates, the smell of their sweat and urine mixed with unbearable heat due to electricity cuts makes life hell over here: A living hell indeed. …It sometimes feels that I might fall due to dizziness caused by that suffocation. So, I keep on drinking water. In a jail made for 534 inmates, there are 1,600 people kept with one barrack holding at least 100-125 of us. There are just 4-6 toilets."
    
2. It is no surprise that these ayurvedic doctors had prescribed certain allopathic medicines to Swamy that were allegedly not meant for his illness. The Bombay high court took a note of the scarcity of doctors in Mumbai's prisons. The Gujarat High Court in Rasikbhai Ramsun Rana vs. State of Gujarat((1999) 1 GLR 176) ordered all central and district prisons to be equipped with an ICCU, pathology lab, expert physicians, sufficient staff including nurses, and the most up-to-date medical treatment devices. Leave the most updated treatment devices, here, in Taloja; a patient with a chronic disease doesn't have an MBBS doctor at his disposal.
   
   In the case of T.V Vatheeswaran v the State of Tamil Nadu (1983 AIR 361) it was pointed out that Articles 14 (right to equality), 19 (right to free speech and expression) and 21 (right to life and liberty) are as much available to prisoners as to freeman. But the Indian picture gives a contradictory image. The Indian Justice report 2019 shows how prisoners have a lower mortality rate and are easily exposed to several diseases with below par focus on the health of inmates.

According to the Indian Justice Report of 2019 by Tata Trusts:

Against the sanctioned 10 posts, Uttarakhand had no medical officer. Barring the Andaman and Nicobar Islands, Chandigarh, Goa, Kerala, Meghalaya, Nagaland, Puducherry and Tripura, twelve states and UTs had a shortfall of 50 per cent or more medical officers available.

The problems of overcrowding of prisons plus shortage of medical officers are highly alarming when covid cases have yet started to rise and is a serious threat to the life of the prisoners.

The International human rights agencies have called for just and humane treatments to prisoners. According to "A Pocketbook of International Human Rights Standards for Prison Officials" by United Nations - Medical personnel have a duty to provide prisoners and detainees with health care equal to that which is given to those who are not imprisoned or detained . This in India is a distant dream. And to highlight that subjecting the inmates to all kinds of unhealthy and depressing environment is no short of torture and that too in a prison where most of the prisoners are under trial.

In the words of Stan Swamy himself to the court on his bail hearing on May 21,2021 : " Eight months and my health and bodily functions have severely deteriorated, before I was lodged in Taloja prison , my body was functional...I am requesting you to consider how this deterioration happened" . That's what an ignorant and lax justice system does to you.

Prison condition in India:

The Problem of the Undertrials
This case also raises a big question mark on the criminal justice system of India which works on the principle of innocent until proven guilty. When the prosecution in this case kept arguing from the sides of NIA to not grant the interim bail to Swamy, the overriding common sense of legal prospects were buried deep inside. Prisoners have basic legal rights that cannot be snatched. The basic rights include right to food and water, right to timely medical examinations, protection from torture etc.

But Indian prisoners have witnessed some of the harshest use of power and gravest denial of human rights. According to the Prison statistics of India 2019 by the NCRB, "the share of convict prisoners is much lower, as compared to the undertrials (69.05%). Not since 1980 has the proportion of undertrial prisoners dipped below 60%. In some states like Delhi and Bihar, eight of 10 prisoners are undertrials, according to 2019 NCRB data. It mainly determines the overcrowding of prisons in various jails in the state/UT".

Also, placing undertrials and convicts together is an abuse of human rights. Keeping them in same prison and subjecting them to same punishments is equal to treating them as guilty goes against the Prison Act of 1894 which calls for separation of convicted and unconvicted prisoners which is absent in most of the prisons in India, let alone the Taloja jail.

All these instances give rise to travesty of justice. Innocents languishing in jails for all their lives and their cases not being taken up. In Swamy's case itself the court delayed the hearing till that date when it finally got the news of his demise.

Arbitrary Arrests

In the Supreme Court case of Joginder Kumar v State of UP, the Supreme Court pointed out that arrests should be the last resort and the police authorities should not make it a habitual activity. It will drastically reduce the overcrowding of prisons especially when majority of the prisoners are undertrials.

Arrests should be avoided until and unless:

1. there is a threat that the accused will not comply with the rules and authorities,
2. or there is a threat to his/her life,
3. or when there is a likelihood that the person will not appear in the court proceedings,
4. Or the crime which is committed is very grave, so as to stop the person from repeating such acts.

Further in Arnesh Kumar v State of Bihar and Anr the Supreme Court made very strict observations and said "The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it.

Not only this, but the power of arrest is also one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive."

The Court further said that "Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person." Here in Swamy's case, he was not even interrogated once. Leave any justification; it was just abuse of the power of arrest, to silent dissent.

Also, non-completion of speedy trial and investigation is violating the right to speedy trial of prisoners under article 21 (Fundamental Right of life and personal liberty) and Section 173 [speedy investigation], Section 309 [speedy inquiry /trial], Section 437(6) [speedy trial of a person accused of non-bailable offence] of the CrPC as pointed out in the case of Vakil Prasad Singh v State of Bihar

In the landmark case of Parmanand Katara Vs Union of India, the Supreme Court highlighted that it is the duty of the state to maintain life, be it of a criminal in a prison or an innocent individual, owing to Article 21 of the Constitution.

Bailable and Non-Bailable Offences:

Was granting bail to Swamy so impossible that the courts kept rejecting his bail plea till his death? It is understood that terrorism is a grievous offence and the arrest under Unlawful Activities (Prevention) Act (hereafter, UAPA), 1967(specifically Section 43D of UAPA) makes it harder to grant bail but in the present case it needs to be understood that Stan Swamy was an accused not a convict, so the process of granting bail due to his medical condition and lack of evidence should have been possible.

Furthermore, taking a look at Section 167 (2)(a)(1) ,under which it is the statutory right of the prisoner to be released under default bail when the investigation has not been completed in due time or the magistrate feels that there are adequate grounds on which the accused may be released. In Swamy's case when the first FIR was registered in 2018, he was not arrested for two years (until 2020), showed that he was not considered a flight risk or someone who would tamper with evidence. If that can be ignored, the old and ailing man was not even released during the devastating second wave too.

On top of that calling his medical reports inconclusive as to grant bail was nothing but sheer unprofessionalism on the part of the NIA officials which went against the human rights of the tribal rights activist. Also going against their action is the judgement of the Bombay High Court which granted bail to the 81 year old co-accused Varavara Rao (in the same Bhima Koregaon case) on grounds of 'ill health, advancing age, and inadequate facilities at Taloja jail hospital' , all of the criteria under which Swamy could fit, more so than Rao. Now let us look at the reasons why bail is near impossible for cases under UAPA.

Section 43D of UAPA act gives the provisions of granting bail which are so strict that they make bail almost impossible. According to S 43D - "Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."

Adding to the woe came the famous, rather the infamous Zahoor Watali judgement, In 2019 in which the Supreme Court said that the courts must take the state's case as true in the case of granting bail (in UAPA cases), without looking at the merits. This means all that is written in the FIR must be seen as true, prima facie, while granting bail. This goes directly against the innocent until proven guilty rule of the Indian justice system as in UAPA cases the person is guilty until proven innocent which makes it even difficult for the person to get bail as allegations are hard to disprove. And this has given edge to the NIA which has made the 16 accused to rot in jail just on the basis of some tampered and planted "inadmissible evidence".

In the same year, the Delhi High Court granted bail to three student activists namely Asif Iqbal Tanha, Devangana Kalita, and Natasha Narwal arrested under UAPA for allegedly taking part in the Delhi Riots of 2020 February. They were booked under section 15 of the UAPA (Terrorist Act) . Even after the court granted them bail, the police authorities did not release them giving the reason that they needed more time for the address verification of the accused. This shows the lack of intent on the part of state machinery which needs reasons for keeping people in the prisons, which is an extremely dangerous sign for a developing nation.

In the case of Shaheen Welfare Association v Union of India and Ors. The Supreme Court observed that: "No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21."

Also in the case of Sanjay Chandra v the CBI , the Supreme Court took very strict observations and held that : "In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances……….

In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction."

Furthermore, the Supreme Court very rightly highlighted a very important point regarding bail and the gravity of offence in the case of P. Chidambaram vs. Directorate of Enforcement: "The gravity can only beget the length of sentence provided in law and by asserting that the offence is grave, the grant of bail cannot be thwarted"

In another case, the Supreme Court highlighted a very different reason to grant bail to the accused. The Court in Babu Singh v State of U.P said that "It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted."

Accountability of prison authorities

The law needs to make sure that people come to prisons for free and fair trail and not as punishment itself. In the landmark case of D.K Basu , SC has laid down prison guidelines which mandate the medical examination of the arrestee by a trained doctor every 48 hours during his detention in custody. The SC did not intend a cursory or visual examination but a more detailed exercise. Leave aside regular examination, Swamy failed to receive the slightest intend of care from authorities.

Gautam Navlakha, booked under similar charges, was denied spectacles in jail without which he claimed he was completely blind. His family members claimed that his spectacles were stolen inside the Taloja prison and when they sent a pair of new spectacles to him by post, the prison authorities refused to accept it and sent it back. A division bench of Justices S S Shinde and M S Karnik of the Bombay HC observed that "Humanity is most important. Everything else will follow."

Justice Shinde further said," Can all these small items be denied? These are all humane considerations. This is the high time to conduct a workshop for even jail authorities." The prisoners have come to the prison to serve their term but torturing them again by not providing them with the things without which they can't do their day-to-day activities is like punishing them twice for the same offence.

Accountability breeds response-ability and the severity of human rights violation demands the culprits of justice system to meet the consequence of their acts. In exercise of the powers conferred by subsection 25 of section 59 of prison act 1894, the state government has framed rules regarding appointments and visits by official and non-official visitors. Low inspection rates give rise to laxity on the part of in-charges of prisons. There must be more frequent visits by ex-officio such as collectors, district and sessions judges etc. and also by non-officials and members of human rights commission.

Health care system of prisoners should be timely monitored. District and High courts should timely summon prison authorities for knowing the on-ground realities.

The undertrials must also be heard routinely by a high-level officer on the way they are treated inside the prison. Gross injustices often take place only when there is no one to be accountable to. Also, the complete dilution of the ways of treatment of convicted and non-convicted must go. A person who is merely an undertrial deserves a more favorable treatment. There cannot be a similar treatment of an innocent and a guilty when law almost is all about distinction between the two.

At the heart of every above-mentioned problem, is the problem of pendency of cases in Indian courts for which people suffer to the point that after spending 20 years in jail, a person is finally declared not guilty by the court. It's just one of the many ways in which the system is destroying the lives of people. As of July 2021 there were 39.38 million pending cases in the district courts of India (including both Civil and Criminal cases) adding to that high courts in India have 5.86 million cases to dispose which brings the total to 43.9 million cases, which is huge.

And Supreme Court also as of 2 July 2021 had 69,212 cases at hand which are pending (of which 13,452 cases cannot be listed for hearing in the court, which brings the total to 55,670, which too is a staggering number for a mere 34 judges). Taking a look at the number of current vacancies that need to be filled up to at least reduce the number of pending cases if not lower them. The Supreme Court is short of 7 judges out of 34 (21% vacancy), the high courts are short of record 449 judges (41% vacancy) and the district court maintain a staggering number of 5000 empty posts of Judicial officers.

Therefore, with these many cases at hand, and the courts short of a large number of judges and officers, it becomes almost impossible to solve these many pending cases and end the suffering of millions of undertrials and those who are not guilty but are still rotting in jails. The courts need to address this issue in a fast-paced manner and try recruiting people at a faster pace.

With all these problems not being currently taken up, the legislature or the judiciary should address the following two questions with utmost urgency:

1. How long will the undertrials have to languish in jail, while their cases are pending in the courts? (Human Rights of prisoners should not suffer due to a weak justice system)
2. Why can't we make correctional facilities for the undertrials and reduce their suffering by not treating them equal to prisoners in jail? (The point is that they are still innocent and therefore should not be treated any differently than a normal person and that too just on the basis of prima facie charges, which in all its probability may be wrong)

Conclusion
In India, retribution is becoming the basis of punishment when rehabilitation should be the goal. The prison system is an important part of justice system and hence it must subscribe itself to the just ways. The objective of punishment is to deter future commission of crime but the stringent handling and constant torture to the prisoners badly affects them.

And the aim of establishing an independent Judiciary is to prevent the misuse of power by the other two branches of the government, viz Legislature and the Executive. And when the Judiciary closes its eyes and lets injustice happen, then all hell will break loose, and the democratic machinery will collapse.

This Indian Justice System needs a complete overhaul and should not consume another person in the garb of saving the "society". A mere 69 rank out of 128 in the Rule of Law index by WJP is just a pathetic but a real image of how hollow India's justice system is. The same index was topped by Denmark which also holds the 2nd position in the Happiness index. It is obvious where there is minimal corruption and where the justice system is running without any interference from outside, the citizens will have a happy and peaceful life, which should also be the goal of governments around the world and that can only happen by filling up the holes in the system before it's too late.

There is no reason as to why an ailing 84-year-old man in such a grave situation should not have been given bail. The HC's dismissiveness of the severity of his health condition is a gross negligence. Also, lack of any prima-facie evidence against Swamy and knowing his contribution as an activist could have been some distant basis in granting him bail. The price of the laxity of the justice system is the life of a tribal rights activist.

References:

1. Prateek Goyal, How Stan Swamy spent his last months in jail, Newslaundry, ( 19 July 2021, 9:16 pm), https://www.newslaundry.com/2021/07/09/how-stan-swamy-spent-his-last-months-in-jail
2. Niha Masih and Joanna Slater, Evidence found on a second Indian activist's computer was planted, report says, The Washington Post, ( 19 July 2021, 9:22 pm), https://www.washingtonpost.com/world/2021/07/06/bhima-koregaon-case-india/
3. National Crime Records Bureau,Prison Statistics in India-2019,25th Edition, Pg 25, Pg 24 ,2020,https://ncrb.gov.in/sites/default/files/Executive-Summary-2018.pdf
4. Ibid
5. Sanchita Kadam , Does India uphold Prisoners' Right to Health , sabrangindia,(Jul. 19, 2021, 1:15 pm), https://sabrangindia.in/article/does-india-uphold-prisoners-right-health
6. Sharmeen Hakim , 'Ayurvedic Doctor At Prison Prescribed Allopathic Antipsychotic Drug' :Stan Swamy Tells Bombay High Court, LiveLaw,(19 Jul 2021, 9:35 pm), https://www.livelaw.in/news-updates/stan-swamy-bombay-high-court-ayurvedic-doctor-bhima-koregaon-case-medical-bail-174341#:~:text=Doctor%20At...-,'Ayurvedic%20Doctor%20At%20Prison%20Prescribed%20Allopathic%20Antipsychotic%20Drug'%20%3AStan,Swamy%20Tells%20Bombay%20High%20Court
7. INDIA CONST. art 14
8. INDIA CONST. art 19.cl 1
9. INDIA CONST art 21
10. Tata Trusts, Indian Justice Report 2020: Ranking States on Police, Judiciary, Prisons and Legal Aid, 2020 https://www.tatatrusts.org/Upload/pdf/ijr-2020-overall-report-january-26.pdf
11. Tata Trusts, Indian Justice Report 2019: Ranking States on Police, Judiciary, Prisons and Legal Aid, Pg 14,Pg 64,2019, https://www.tatatrusts.org/upload/pdf/overall-report-single.pdf
12. OHCHR with PRI and the International Centre for Prison Studies, Human Rights and Prisons, Pg 11, Pg 17, 2005, https://cdn.penalreform.org/wp-content/uploads/2013/05/man-2005-humanrightsandprisons-pocketguide-en_0.pdf
13. Prateek Goyal, How Stan Swamy spent his last months in jail, Newslaundry, ( 19 July 2021, 9:16 pm), https://www.newslaundry.com/2021/07/09/how-stan-swamy-spent-his-last-months-in-jail
14. The Prisons Act,1894, § 27 cl.3, No.9, Act of Parliament, 1894 (India)
15. Joginder Kumar v State of Up, 1994 AIR 1349
16. Sadaf Modak, Explained: Where is Taloja jail and why was its superintendent transferred?, The Indian Express , (21 July 2021, 2:07 PM), https://indianexpress.com/article/explained/explained-where-is-taloja-jail-and-why-was-its-superintendent-transferred-7389904/
17. Arnesh Kumar v State of Bihar and Anr, (2014) 8 SCC 273
18. Ibid
19. Ibid
20. INDIA CONST. art.21
21. Code of Criminal Procedure , 1973 §173 , No.2,Act of Parliament, 1974, (India)
22. Code of Criminal Procedure , 1973 §309 , No.2,Act of Parliament, 1974, (India)
23. Code of Criminal Procedure , 1973 §437 cl. 6 , No.2,Act of Parliament, 1974, (India)
24. Vakil Prasad Singh v State of Bihar, (2009) 3 SCC 355
25. Parmanand Katara v Union of India, 1989 AIR 2039
26. Unlawful Activities (Prevention) Act , 1967 , §43 cl. D, No. 37, Act of Parliament,1967 (India) 27Sadaf Modak, Stan Swamy dead: NIA didn't seek custody but kept him behind bars, opposed his plea, The Indian Express, (21 July 2021 , 3:15 PM), https://indianexpress.com/article/india/father-stan-swamy-dead-elgar-parishad-case-nia-probe-7390722/
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29. Unlawful Activities (Prevention) Act , 1967 , §43 cl. D, No. 37, Act of Parliament,1967 (India)
30. National Investigation Agency v Zahoor Ahmad Shah Watali , (2019) 5 SCC 1
31. Unlawful Activities (Prevention) Act , 1967 , §15, No. 37, Act of Parliament,1967 (India)
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33. Shaheen Welfare Association v Union of India and ors , 1996 SCC (2) 616
34. Sanjay Chandra v the CBI , (2012) 1 SCC 40
35. P. Chidambaram vs. Directorate of Enforcement, 2019 SCC OnLine SC 1549
36. Babu Singh v State of UP , (1978) 1 SCC 579
37. Dilip K Basu v State of West Bengal and ors , 1997 1 SCC 416
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40. https://ecourts.gov.in/ecourts_home/
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Written By:

1. Shruti Parashar - 3rd Year Law Students Of RMLNLU And
2. Ritunjay Singh (3rd Year Law Students Of RMLNLU)