Justice V. Gopala Gowda: ‘State alone can be held accountable’

Interview with Justice V. Gopala Gowda, former judge of the Supreme Court of India.

Justice V. Gopala Gowda , formerjudge of the Supreme Court and former Chief Justice of the Orissa High Court, shared some of his concerns with Frontline on the excesses of law and the accountability of the judiciary in the Stan Swamy case. Excerpts from the interview:

As an eminent jurist, what are your impressions about the manner in which this entire case unfolded, right from Father Swamy’s arrest to the repeated denial of bail despite his frail health?

The widespread condemnation of the circumstances leading to the death of Father Stan Swamy, particularly in the context of the trauma suffered by other social activists across the country at the hands of the administration, is but natural. In my view, it is certainly dastardly and I am deeply agonised by the death of Father Stan Swamy at the age of 84. There are fair reasons to connect the dots and suspect a nexus between the seemingly vengeful pursuit by the prosecution agency in opposing his bail applications, premised on the most tenable ground of serious illness, before all the courts.

Courts in India ought to have exercised their constitutional and statutory powers to grant bail to the accused in such circumstances to defend the sacrosanct human rights of the citizenry of the country, as the judiciary is the torchbearer of such rights. Unfortunately, that did not happen in this case. It is a travesty of justice, to say the least. Therefore, the widespread condemnation by people at large, stating that the death of Father Stan Swamy in judicial custody amounts to homicidal death, for which the state, including the judiciary, is accountable.

There are judgments on the law of preventive detention as well as the mandated medical examination of a person prior to his/her arrest. The Unlawful Activities (Prevention) Act embodies several sweeping powers, including the denial of bail by courts based on a prima facie examination of the case presented by the prosecution. So we have a stringent law and the issue of personal liberties too. Where do courts step in here?

The Indian judiciary, particularly the Honourable Supreme Court of India and several high courts across the country, have rendered epoch-making historical judgments on the question of grant of bail, keeping in view the fundamental rights guaranteed to both citizens and non-citizens under Articles 14, 19 and 21 of the Constitution of India. In criminal jurisprudence, it is the statutory obligation of the police personnel of the National Investigative Agency (NIA) and the jail authorities in whose custody Father Stan Swamy was housed in jail as an arrestee pending trial, to ensure the life of an arrestee, particularly an elderly person like Father Stan Swamy. It was their utmost duty to render medical facilities to such a person at the time of his arrest and during the period of judicial custody, irrespective of the fact of his status as a preventive detenu or as an accused in a pending case of any nature or for allegedly committing an offence under any law or of the filing of any charge sheet against such persons.

Most unfortunately, this has been flouted by the police personnel concerned and the authorities of the jail when father Stan Swamy was in their custody. It is painful to state that all the courts, considering the several bail applications filed, did not apply the law applicable for grant of bail in utter disregard of the catena of cases applicable to grant of bail applications, irrespective of the institution of cases against him under the rigorous provisions of the Act as in the instant case.

In my considered view, the court has failed to discharge its duty in not granting bail to Father Stan Swamy at the appropriate stage. Such bail could have been granted subject to stringent conditions, as needed. The fact that such a method was not opted is the cause of heart-burning to the citizenry of this country who have the misfortune to witness a ghastly death that occurred in the custody of the state in blatant violation of the rule of law which is the bedrock of our constitutional democracy.

Does the experience of the implementation of such special laws show that they have made a difference in curbing the so-called unlawful activities by individuals?

Under the guise of implementation of the special laws like the UAPA and similar such enactments with a view to curb the so-called unlawful activities by individuals, the basic human rights guaranteed under the Constitution should not be allowed to be impinged either by the executive of the state, i.e. the jurisdictional police, or the judiciary. It is the duty of the courts, before whom such proceedings of bail applications are dealt with, to clinically examine the allegations made in the context of the material evidence collected and produced by the investigation agency and to scrupulously find out whether the accused who is seeking the relief of bail is entitled to the same and pass appropriate orders.

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

With regard to the recent instances reported in the print and electronic media across the country of the cases registered under the provisions of the UAPA indiscriminately and particularly against “prisoners of conscience” like Fr Stan Swamy, many such cases were brought before the law courts across the country for grant of bail. Courts are slow in adjudicating such cases in view of provisions like Section 43(5) of the UAPA. It slows the course of justice.

In my view, Section 43(5) of the UAPA ought not to operate as a legal impediment for the grant of bail in such cases, for the reason that the powers of the jurisdictional courts which are constituted under the provisions of Article 236 of the Constitution and their exercise of powers for grant of bail will have to be considered in the light of the sacrosanct fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution and statutory powers under the Criminal Procedure Code.

It is also necessary for the courts to consider the very relevant fact of medical illness of arrestees in judicial custody. Notwithstanding the above views of mine, I am of the strong view that Parliament is required to urgently review such draconian laws, particularly provisions like Section 43 (5) of the UAPA, for suitable amendments to be made, or at least frame necessary guidelines having regard to the fact of indiscriminate use of such laws against persons, particularly those being made “prisoners of conscience”, in our country.

Safeguards against misuse of UAPA

What are the safeguards against their misuse, and do they exist at all? Why is there a widespread belief that misuse is rampant?

Certainly. There are guidelines laid down by the apex court and several high courts to safeguard the liberty of such arrestees in cases instituted under the provisions of such Acts. The courts that deal with such cases must carefully scrutinise the nature of allegations, the materials collected by the investigation agency and also consider the health conditions of the arrestee. I hope that the ghastly death of Father Stan Swamy will be an eye-opener to courts to act swiftly and pass appropriate orders keeping in mind the hypersensitive health conditions of geriatrically advanced and vulnerable arrestees housed in jails and pending trial.

Prisoners are also guaranteed certain sacrosanct fundamental rights which are required to be protected by law courts as custodians of the rule of law and the precious fundamental right to life and personal liberty and other rights of citizens and non-citizens, against whom cases are filed under the provisions of rigorous laws in the guise of maintenance of “internal security of the nation”. Both are important and, therefore, checks and balances are key.

The government has said due process of law was followed in the arrest and detention of Stan Swamy and that bail was denied by the courts. But then the courts have to follow the written word of the law laid down under the UAPA. In Stan Swamy’s case, it was a combination of the prison system and the denial of bail by the NIA court irrespective of his health status that finally led to his demise. So, who is to take accountability of the death of the 84-year-old undertrial in judicial custody—the courts, the prison system or the law itself?

The denial of bail in spite of the repeated bail applications by Father Stan Swamy and the justification by the state that the due process of law was purportedly followed in the arrest and detention of Father Stan Swamy is not factually and legally correct, for the reason that Father Stan Swamy was suffering from serious and chronic ailments at an advanced age of 84, which was a very relevant factual aspect to consider on the touchstone of the law applicable to the question of grant of bail to him.

In the instant case, both the investigation agency and the prosecution ought to have acted fairly. Courts rejected repeated bail applications. The same is opposed to several binding precedents on the point which can be easily found out. The series of orders passed are required to be examined to find out whether they are in conformity with the law or not. The denial of bail to him despite repeated bail applications is required to be scrutinised by the higher courts in exercise of their powers of judicial review, which is the basic feature of the Constitution as recognised by the apex court in S.R. Bommai vs Union of India reported in 1994 (3) SCC 1.

For the foregoing reasons, the justification made in this regard by the government is wholly untenable in law and cannot be accepted, as the death of a senior citizen of the country in judicial custody, even though he is accused in a case under the provisions of the UAPA, has shocked the conscience of our nation and has deeply agonised right-thinking people of the country.

The state alone can be held to be accountable for the death of Father Stan Swamy during the period of his judicial custody as its investigation agency has acted unreasonably and arbitrarily in opposing the bail application in a vindictive manner. The courts have also overlooked critical factual aspects and medical grounds on which bail was sought without applying binding precedents relevant and applicable to the case at hand. These are all factors that have had a cumulative effect in the chain of causation of the death of Father Stan Swamy. The above aspects must be borne in mind to examine and consider future cases.

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

Yes, they are also responsible.

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?

There is no apparent conflict at all. An 84-year old, critically ill undertrial sought bail on medical grounds. I fail to fathom any threat to the collective interest of the community in the circumstances. Bail could have been granted subject to the imposition of stringent conditions to secure such collective interest. The same was, unfortunately, not done.