Justice must have a heart. It cannot be just an arena for legal pedantry and fireworks, though that unfortunately has been the case since the rise of Rhetoric in ancient Greece. If one does not FEEL the pain, suffering and loss an injustice causes, the outward demeanour of calm objectivity makes little sense. CJI Ramana had inspired some hope that we have left behind the long period of stony silence as the government pretended and the highest court in the land agreed that all was well as the thousands of migrant workers were trekking hundreds of miles on foot under a scorching sun without food and water. But what did we actually witness in the case of Father Stan Swamy?
When he felt the end was near, and the grinding wheels of institutional torment would find ways of circumventing his bail plea on specious grounds, he made a direct heart-felt appeal to the bench of the High Court to let him die in peace and some dignity. I think anybody can feel the resignation and the absolute sincerity of that final and direct appeal. But the court unbelievably decided to send him back to the hospital where he breathed his last. Only one act of the court has some grace, it transferred him from a hospital where he thought he was receiving poor treatment. But, post-Covid complications have usually proved fatal. And on retrospect it is clear he knew the end was near. How did this fact not register?
Let us come to the brass tacks. He would probably have escaped cruel fate had he not been charged and arrested under the UAPA act and exposed to Covid 19 in prison Arrests and detention under this act have been visibly bizarre and sadistic.
People have been accused of plotting to murder the Prime Minister, no less, and organising a massive armed rebellion against the State, on the basis of digital files said to be recovered from laptops of one or two accused. Father Stan Swamy repeatedly pleaded before court that no proof was produced before the court to link him to the suggested plots except mention in those files which have now definitely come under a cloud. But no, that would not cut any ice. Why? Because the top security agency of the state was on oath saying that ‘the matters are very serious’.
Now a leading forensic laboratory of the world has examined the files and detected use of malware to infiltrate laptops and insinuate ‘incriminating documents’. This is a firm with proven integrity and expertise. Even if the NIA refuses to consider that evidence, there is no reason why the court should not seek independent expert opinion (not one recommended by the government) on whether it is authentic. After all many cases filed by NIA have been shown to be without proof in many courts in various parts of the country. It is particularly disturbing that on the ground of pending investigation, people should have been robbed of their liberty for years. What if there are rogue elements in the agency using the cover of State security to implicate people they dislike or in their own personal or group interest? That no longer seems such an outlandish idea.
To call a spade a spade, all the accused who are denied bail are in some way or other involved in working for tribals and also the most depressed among scheduled castes. It is also obvious that the areas in which they have been working are areas where the tribal people of various ethnic origins have in recent decades come under corporate onslaught, with the land of their ancestors and their livelihoods suddenly being snatched away from them. And the State is active in supporting corporates, and criminalising tribal resistance.
It has long been a crying scandal. Maoists have made use of this patent oppression and injustice to mobilise tribals against it in the light of their own agenda. Since the CRPF is alleged to be assisting corporates in their ruthless assault on tribals, human rights activists who have no sympathy for or link with Maoists, have felt compelled to come to the rescue of the tribals in asserting and exercising their constitutional rights. Father Stan Swamy, for example, was involved in helping hapless exploited tribals to claim their rights under the Forest Rights Act. Since a section of the tribals have come under Maoist influence, it has been possible for state agencies to conflate the two groups in floating the idea that the two are but two sides of the same coin. If you oppose corporates and side with the tribals, the argument goes, no other proof is really necessary to raise the ghost of their involvement in Maoist sedition. The alleged computer files giving details of the nebulous plot just clinches the proof, according to the prosecution. And it is this that has caused international outrage, prompting the External Affairs ministry to issue an unusual statement that all this is just misguided blather, and that everything has been done according to laws of the land.
Can this state of affairs be understood as normal, and can the courts not even raise an eyebrow at such a turn of events? Pray what is the meaning of justice in this context? Can the judiciary claim to be independent if they take for granted the reckless and dangerous course the executive has followed to degrade law into its cruel whims and paranoid fancies?
One hopes the nightmare will end with the courts taking a decisive, but entirely rational, view of the chaos into which the justice system seems to be slipping. If they do not call a halt the executive will surely engulf all the powers of the state and overturn all that we understand by law, justice and democracy. It must be said that the recent reasoned verdict of the Delhi High Court granting bail to three accused detainees under UAPA act is historic, in the sense that the bench has consciously chosen to stop the slide into moral and judicial chaos. If that does not jolt the state including the courts into sanity, it may even become necessary to lay the evidence before the scrutiny of best and unquestionably neutral international legal and judicial experts for a truly just opinion on its tenability. One hopes that we shall be spared that pain and shame.
*The author is a highly respected Assamese intellectual, a literary critic and social-scientist from Assam. Views expressed are the author’s own.
Other pieces by Dr. Hiren Gohain: