Father Stan’s death on 5th July 2021 while in judicial custody in Holy Family Hospital was a death he himself foretold. The institutions of the Indian state, unfortunately, remained silent in the face of the progressive deterioration of the health of Father Stan Swamy and were deaf to his last wish to ‘be with his own.’
What Would Justice Mean For Fr. Stan?
In the context of this failure of the Indian State to ensure both the right to life as well as the right to die with dignity, what does justice for Fr. Stan mean?
It is imperative that there be an inquiry into understanding the causes which led to the death of Fr. Stan. However, the question of justice for Fr. Stan involves questions that are wider than an inquiry.
It must take the form of an acknowledgment by the Government of the wrongness of the decision to arrest and detain an 83-year-old ailing man which eight months later resulted in his death. The Government must apologize for this inhumane act which has had such tragic consequences.
There is also the need for a judicial acknowledgment of failure in protecting the right to life of Fr. Stan. The Supreme Court has itself not hesitated to acknowledge judicial errors in its past history. The most momentous being the judgment in Puttaswamy v Union of India,where the Court acknowledged, that three judicial decisions were ‘discordant notes’ in the ‘evolution of a doctrine’ which places ‘dignity of the individual and freedoms and liberties at the forefront.’
The decisions were the denial of habeas corpus rights during the emergency in ADM Jabalpur, the denial of rights to the LGBT community in Suresh Kumar Koushal, and holding that preventive detention laws were not subject to the discipline of the right to life under Article 21 in A.K. Gopalan.
The Supreme Court has also not hesitated to use the language of apology when grievous wrongs have been committed. In Navtej Singh Johar v Union of India,the Court says, ‘history owes an apology to the members of this community[LGBT] and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.’
Acknowledgment of Judicial Errors
The indication that there is some churning is in the reporting that one of the judges before whom Fr. Stan’s bail application was heard, Justice Shinde said that ‘he attended the funeral of Stan Seamy[sic] virtually and found all the speeches dignified recognising the contribution of the late Stan Swamy.’
However, an apology has to go beyond this and has to have at least two dimensions, namely an acknowledgment of an error and a commitment that what happened to Fr. Stan will not happen to anyone else.
The judicial failure in this case which needs to be acknowledged is its failure to comprehend that detention per se of Fr. Stan was a violation not just of the right to personal liberty but for the right to life itself and then failing to act to ensure that he was not denied the right to die with dignity.
Justice has to also embody the vital principle of ‘non-recurrence.’ If this is so, then it is imperative that henceforth for all older persons arrest should be a measure of the last resort and if an arrest is to be resorted to at all, it must be a home arrest. It is only home arrest that will protect the right to health, the right to life as well as the right to die with the dignity of older persons thereby protecting the values of the Constitution.
Getting back to the question of the arrest itself, the case of the prosecution is based on conjectures. There was no material to substantiate that Fr. Stan was complicit in committing any ‘terrorist act’ as defined in the UAPA.
In fact, what the state did was to paint a constitutional concern for the rights of the Adivasis as terrorism. This has damaged the reputation and dignity of Fr Stan and created a wrongful state manufactured perception of ‘criminality’ around someone who espoused constitutional concerns.
Fr. Stan’s Vision for a Transformative Constitution
This has to be remedied through a speedy as well as a just and fair trial of the BK-16. Once the trial comes to a conclusion, it is hoped that the judgment itself will play some role in restoring the dignity of Fr. Stan as a citizen committed to constitutional values.
In the contemporary era, one of the gravest consequences of globalization according to Balagopal is that it has delegitimised concern for the poor. In his concern for the dispossessed, Fr Stan symbolised not only a critique of the values promoted by globalisation but also an active espousal of the constitutional value of fraternity. He stood with the Adivasis in their struggle to make the constitutional speak to their concerns of community control over ‘water, forest, and land’.
Fr. Stan’s life’s work was to ensure that the text of the Constitution addressed the concerns of the Adivasis. The Constitution which Fr. Stan espoused was not the ‘liberal’ Constitution which blandly put forward a notion of equality which ‘forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread’ Rather it was a ‘transformative Constitution’ whose ‘hallmark’ was that it ‘promotes and engenders societal change.’
A transformative constitution from the Adivasi perspective requires that constitutional interpretation center both the Vth and VI Schedules of the Constitution as well as legislation such as the Panchayat Extension to Scheduled Areas Act which empowers Gram Sabhas in Adivasi areas to safeguard their ‘cultural identity and exercise control over ‘community resources.’
The Supreme Court in Samatha v State of Andhra Pradesh embodied such a transformative approach:
‘Thus, the Fifth and Sixth Schedules [are] an integral scheme of the Constitution with direction, philosophy, and anxiety is to protect the tribals from exploitation and to preserve valuable endowment of their land for their economic empowerment to elongate social and economic democracy with liberty, equality, fraternity and dignity of their person in our political Bharat.’
It is precisely this transformative approach to the Constitution that should be taken forward as an apt homage to Fr. Stan’s vision which was fundamentally about guaranteeing Adivasis their collective rights over water, land, and forest. One of the issues he was most involved in before his arrest was the public interest litigation he had filed on behalf of the thousands of Adivasis who had suffered unjust imprisonment. That litigation should be taken to its logical conclusion.
Memorizing his life should be about making his commitments, wider social and political concerns. A shared and public culture has to be built which foregrounds the struggle of the Adivasis for the fulfillment of the Constitution’s promise to them.
Out of this public memory built out of innumerable public events, protests, books, films, changes in school and college syllabi must emerge actions that take forward the concerns which animated Fr. Stan. That would be a step in the direction of justice for Fr. Stan.
 Joseph Shine v Union of India , Opinion of Chandrachud J.