Justice Madan B. Lokur: ‘The special court failed in its duty’

Interview with Justice Madan B. Lokur, retired judge of the Supreme Court of India.

Justice Madan B. Lokur.

Justice Madan B. Lokur, a former judge of the Supreme Court, was among those who expressed outrage at Fr Stan Swamy’s wanton death in judicial custody. Justice Lokur, who had previously served as Chief Justice of the Andhra Pradesh and Gauhati High Courts, and who is at present a judge at the Supreme Court of Fiji, spoke to Frontline about the need for law and justice to be humane. Excerpts from the interview:

Many individuals, and political parties, have reacted strongly to the circumstances leading to Fr Stan Swamy’s death, and some have even called it a judicial-custodial murder. In a broad sense, what is his death reflective of?

The tragic death of Fr Stan Swamy reflects the cussedness of the NIA [National Investigative Agency] which opposed everything, from a straw for him to drink water to his hospitalisation. I am also amazed that the judiciary did not see through the game or put its foot down. Very, very sad. Are we reaching a dead end as far as our bail jurisprudence is concerned, particularly in sensitive cases?

You wrote a stirring article about the treatment meted out to Stan Swamy, in which you refer to judgments on the law of preventive detention and the mandated medical examination of a person prior to his/her arrest. It is possible that these norms were flouted in Stan Swamy’s case. Does this indicate a malaise in the prison system or the judicial process or both?

It’s a breakdown of just about everything. Before a person is sent to judicial custody, it is for the judiciary to ensure that the person is arrested in accordance with law and the procedure laid down by the Supreme Court, and thereafter, ensure that the prisoner is looked after as a person who has some dignity. I think Stan Swamy was not treated with dignity. He was subjected to soft torture of the kind where even basic things like a straw were denied to him. The special court, I believe, failed in its duty.

How important are humanity and compassion, the twin features you refer to in your article, in the application of law and the dispensing of justice?

Humanity and compassion are absolutely important in dealing with any human being. Why can’t we treat prisoners in a humane manner? Is it a crime to treat someone with humanity and compassion?

While the prison system itself needs reform, the denial of bail to an ailing 84-year-old has also brought the judiciary into question. What are your observations?

The judiciary has to climb out of the ivory tower and get on the ground. What thrill does anybody—police, prosecution, judiciary—get in denying bail to an obviously ailing 84-year-old person? Is it something to be proud of? We are taught to look after the aged and the infirm. Have we forgotten these basic values?

While rejecting bail, the NIA court judge held that the “collective interest of the community would outweigh the right of personal liberty”. Can there be a blanket application of the principle of collective interest in the denial of personal liberty?

Obviously not. I’m not sure how the learned judge could gauge the collective interest of the community. What was the material before him? Judges are bound by the Constitution of India and the law, and not some unspecified collective interest of the community. Sorry, the observation was not warranted.

The National Investigative Agency’s conduct has also been severely criticised, as it did not seek a single day of custody for his interrogation. The charge sheet was filed in October 2020, which meant that Stan Swamy was entitled to bail. Should the judicial process not have been more responsive, given his age and health?

The fact that the NIA did not seek police remand of Stan Swamy and did not interrogate him in judicial custody is a crystal-clear indication that they did not want to question him any further. Then what was the need to detain him?

There was no thought given to the question as to whether he would abscond or influence witnesses or tamper with the evidence. The job of the prosecution is to make sure that an accused is available for trial. Here, the prosecution ensured that Stan Swamy is not available for trial. How strange! I get the feeling that the idea was to subject him to pre-trial punishment and ensure that he spent the rest of his life in jail. Unfortunately, the NIA succeeded.

Should the courts and the highest court of the land examine the amendments made to the UAPA, in particular Section 43 (D) 5 which bars bail based on prima facie opinions drawn by courts?

An absolute must. Any law that says or is interpreted to mean that bail cannot be granted under any circumstance is clearly unconstitutional. The sooner we get rid of this law, the better. Many offences in the Indian Penal Code are non-bailable. If the courts interpret this literally to mean that a person cannot get bail in a non-bailable offence, we’re in deep, deep trouble.

In the face of draconian laws that can be invoked by the whimsy of the state, is it unreasonable to expect the judiciary to step in to correct the excesses inherent in the law and which are invoked repeatedly by the state in the name of national security, incarcerating political activists, students, academics, mediapersons?

The judiciary must step in. It is the guardian of our fundamental rights and if it does not step in, we might as well say goodbye to our fundamental freedoms.