High Court is parents patriae, father of deceased Fr Stan Swamy: Mihir Desai

Bombay HC Image Courtesy:newindianexpress.com

The Bombay High Court hearing following the untimely death of Father Stan Swamy will now deliberate on the powers of a constitutional court to ensure justice to an under trial when he dies in tragic circumstances while still in custody. The death on July 5 of Father Stan Swamy at Mumbai’s Holy Family hospital has been dubbed an institutional murder because of the callous disregard, obfuscations and negligence by the NIA and Jail authorities regarding his health in the month before he was admitted, following the High Court’s order, to hospital.

Today’s was the second hearing following his demise that led to widespread public grief, outrage and protests. Senior Counsel Mihir Desai, appearing for Father Swamy, put forward four requests before Justice Shinde and Jamdar today:

Father Francis Mascarenhas, who was next of kin of Father Swamy, should be allowed to participate in the judicial enquiry;
The judicial enquiry behind his death should be done in accordance to the NHRC guidelines;
Since Father Stan’s death was in Mumbai, the Magistrate for enquiry under section 176 of the Code of Criminal Procedure be from Mumbai and
The report after enquiry to be submitted to the Bombay High Court.

The Assistant Solicitor General (ASG) appearing for the NIA, Anil Singh while agreeing with the first three requests, also argued that since Father Stan is now deceased, as per section 394 of the Code of Criminal procedure, the appeal for his bail needs to be abated. [Section 394 of the CrPC states that every appeal under section 377 and 378 of the Code shall abate on the death of the accused, provided that the appeal is against the accused’s conviction or sentence]. The ASG contended that since Father Stan’s bail applications were neither against sentence or conviction, this could not be kept pending any longer. The Public Prosecutor for the Maharashtra Government, Ms. Aruna Pai agreed with the ASG’s submissions. At this the Court remarked that if the ASG’s request was acceded to, the first three prayers would also lapse.

In response to the NIA, Senior Counsel Desai submitted that the High Court, being a constitutional court has the authority above all to see justice done. He urged that the matter should be kept pending so that the inquiry report behind his death could be placed before the Bench for consideration. He said, “Father Swamy died when the appeal was pending. The High Court is a constitutional court, its powers are very vast….its power’s to do justice is not affected by any situation. The concept of parens patriae (parent of the nation) would apply. The High Court would become the parens patriae in all such cases, it becomes the parent of the deceased.”

The Bench observed that if this matter was disposed of, Mr. Desai’s requests would not arise. Hence, they requested Mr. Desai to submit a short note on the matter to see if this appeal can be converted into a writ petition that would be maintainable. The matter has been posted on August 4, 2021, for consideration.

Meanwhile, the ASG also expressed his dissatisfaction the emotional comments made by the Court at the last hearing. Singh said, “We have condoled Father Stan’s death. I don’t want to submit anything pertaining to the merits of the case. Any personal or private comments coming from the judges in the open court or law officers in a pending investigation, gets twisted by the press and in the social media.”

On July 19, in widely reported remarks the Bench had said, “I was informed about the timing of the funeral service. Such a wonderful person. The kind of services he has rendered to the society. We have respect for his work. Legally, whatever is there against him is a different matter…We normally don’t get time for TV, but we saw this funeral, and it was very graceful.”

The ASG stated that the remarks may adversely affect the reputation of the NIA. At this, the court stated clearly that it had said nothing on the quality of the prosecution, the legal issues, role of the public prosecutor or the ASG. There was no intention to hurt the public prosecutor or the ASG and to that extent, if they were hurt the Court took its words back.