The lawyer for the late tribal rights activist Stan Swamy has urged the Bombay Supreme Court to “clear his name and reputation” in the Elgar Parishad-Maoist Left case.
Swamy, a Jesuit turned activist, died in hospital on July 5, 2021.
Senior counsel Mihir Desai wrote a note to the Supreme Court earlier this week on behalf of the Jesuit Province of Jamshedpur (JJP), seeking to prosecute Swamy’s case as his family.
It has objected to the lower court’s comment, while rejecting Stan Swamy’s bail request in March that there was prima facie evidence against him.
The special court’s comments, while refusing bail, amounted to a preliminary plea of guilty against Swamy and the supreme court, hearing an appeal against the order, may continue the hearing and set aside the observation, according to the JJP.
“Article 21 of the Constitution applies equally to deceased persons and just as the Appellant (Swamy) would have had the right to clear his name if he were still alive, those closest to him will have a similar have the right to clear his name,” the spokesperson said. note stated.
The lower court’s finding was a “stigma” and will continue unless the high court sets the finding aside, it added.
On July 5, when a bench of Supreme Court Justices SS Shinde and NJ Jamadar was considering Swamy’s bail request, it was announced that he had been pronounced dead some time earlier.
Attorney Desai then urged the Supreme Court to hold the bail appeal and petition filed by Swamy against the Bar for the granting of bail under the Unlawful Activities (Prevention) Act (UAPA).
However, the National Investigation Agency (NIA) had said the bail request should be considered “watered down” with Stan Swamy’s death under section 394 of the Code of Criminal Procedure.
Section 394 provides that an appeal shall be reduced on the death of a person unless it is an appeal against a conviction, death sentence or imprisonment, in which case the person’s relatives may request the court’s authorization to hear the appeal to continue.
Attorney Desai urged the HC to invoke its “parens patriae” jurisdiction, which is a power of an appeals court to protect those who are not in a position to protect themselves.
He also reiterated that Father Frazer Mascarenhas, Stan Swamy’s associate and former principal of St Xaviers College, may participate as his neighbor in the magisterial investigation into Stan Swamy’s death.
The magisterial inquiry should follow United Nations Human Rights Council guidelines and investigate the immediate cause of death, the note said, alleging that his “arrest and prison conditions, including inadequate health facilities” played a role in his death.
Swamy was transferred to Taloja Prison in Navi Mumbai after his arrest in Ranchi in October 2020. He suffered from Parkinson’s disease and several other ailments and was transferred to a private hospital on the orders of the Supreme Court in May of this year.