Jesuit body moves Bombay HC to clear Stan Swamy’s name

The submissions by senior advocates Mihir Desai and Mihir Joshi, filed in the bail application of Swamy, stated that the Jamshedpur Jesuit Providence appointed Fr Frazer Mascarenhas as the late activist’s next of kin and he would participate in the inquiry by the magistrate.

The Jamshedpur Jesuit Province, to which late tribal rights activist and Elgar Parishad accused Father Stan Swamy was attached to, has sought the removal of the odium (widespread hatred) linked to the priest’s name.

Civil rights activist Father Stan Swami, in Namkum near Ranchi on Aug 28, 2018. (PTI)

In the written submissions filed before the Bombay high court (HC), Swamy’s lawyers have submitted that as per the Criminal Procedure Code (CrPC) and Supreme Court (SC) rulings, even though the priest died on July 5 pending his medical bail hearing in HC, the next of kin of the late activist has a right to seek the removal of the odium.

The submissions by senior advocates Mihir Desai and Mihir Joshi, filed in the bail application of Swamy, stated that the Jamshedpur Jesuit Providence appointed Fr Frazer Mascarenhas as the late activist’s next of kin and he would participate in the inquiry by the magistrate.

They have sought that the inquiry is conducted as per the National Human Rights Commission (NHRC) guidelines pertaining to custodial deaths and also the Nelson Mandela Rules framed by the United Nations, which deal with the provision of facilities to inmates of prisons.

While hearing Swamy’s bail application, the HC bench of Justice SS Shinde was informed of the untimely demise of Swamy, who was being treated at Holy Family Hospital in Bandra after being shifted from Taloja Central Prison, as per an order of the court. At the request of Swamy’s lawyer, who contended that there was negligence on the part of the prison authorities as well as the National Investigation Agency (NIA) which resulted in Swamy’s health deteriorating and his death, HC had ordered a magistrate inquiry.

NIA opposed the inquiry, stating that as Section 394 of CrPC – which deals with abatement of criminal proceedings, convictions and sentences against accused/convict – was applicable in this case there was no need for the report to be submitted before HC. However, Desai requested that as it was a case of custodial death, the court should exercise parens patriae (parent of the nation) jurisdiction and ask for reports of the judicial inquiry. HC accepted the contention.

While seeking the removal of stigma attached to Swamy’s name, the submissions said that Article 21 (Right to life and personal liberty) of the Constitution applied to deceased persons too. “Just as the appellant [Swamy] would have had a right to clear his name if he were alive, similarly those closest to him would have a similar right to clear his name,” the lawyers contended.

They further stated that though the application of section 394 was not acceptable, assuming that it was applied even though Swamy was not convicted or sentenced, as per an SC ruling, the next of kin had a right to seek removal of the odium at the time of hearing of the bail application. The lawyers submitted that as the special court had made adverse observations while rejecting Fr Swamy’s bail application, the observations would remain a stigma on his name and hence, there was a prayer for the removal of the same.