Mathews J. Nedumpara
The denial of bail to Father Stan Swamy which has led to his incarceration and eventual death in a private hospital in Bombay still under judicial custody is one of the darkest incidents of denial of the fundamental freedom of life and liberty enshrined in our constitution. Even during the medieval days, the custody of a person accused was permissible only if the offences committed were so grave and such that if the person was at large he would not be available for trial and to undergo the punishment. Blackstone in his Commentaries of Laws of England has stated this position in great elaboration. He said the guilt of a man ought not be wrung out of him, and ought to be established by other men and means, a complete protection agaisnt self-incrimination. He further maintained that bail is a matter of right and can be denied only if the offender is likely to commit further crimes or is likely to flea justice. In India, in the 21st century, the protection against incarceration and self-incrimination which was the undeniable law of throughout the common law history, except for a few, is denied.
The octogenarian, weak and sick Fr. Swamy ought not have been even arrested and no court should have remanded him to police/judicial custody. I have no words to condemn the injustice done to Fr. Stan Swamy. I believe the sufferings of Fr. Stan will not go in vain, and that the Prime Minister, the Home Minister and the judiciary will take note of the fact that the injustice metted out to Fr. Stan has stained India’s image all over the world, and has created a dent in the faith of the common man in judiciary. The reforms we need are drastic, revolutionary. The worship of meaningless procedures and technicality, we must abandon. Thousands of undertrials accused of petty offenses, many of which are mere fabrication, ought to be released, and it is the duty of the Bar to raise its voice against injustice.