Remembering Stan Swamy

The People’s Union for Civil Liberties (PUCL), Gujarat, organised an event in Ahmedabad entitled “Remembering Fr. Stan Swamy in Today’s Challenging Reality” in the memory of Fr. Stan Swamy on his third death anniversary. The event included a discussion of the new criminal laws enforced since July 1, 2024.

At the start of the event, Fr Cedric Prakash spoke about Fr Stan Swamy, a fearless defender of tribal rights in Jharkhand, who was arrested by the NIA in 2018 in the context of the Bhima Koregaon case. 

Human rights defenders and members of political parties across the nation had protested the arrest of the then 81-year-old activist who had worked tirelessly with Adivasis to defend their rights. He passed away on July 5, 2021, at the Holy Family Hospital, Mumbai, due to complications related to COVID-19 while still under arrest.

Advocate Lara Jesani of the Bombay High Court delivered the keynote address and discussed the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) which have replaced the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act, respectively and their implications for citizens’ rights.

She expressed serious concern regarding the manner in which the Law Commission was bypassed, views of public and experts not considered in the process of overhauling the criminal jurisprudence of the country, by just entrusting the task to a five-member committee. 

It was strange that when 80-85% of the BNS, BNSS, and BSA were taken verbatim from the erstwhile CRPC, IPC and the Indian Evidence Act and just reorganised, rather than “decolonised” as claimed, the laws were replaced when the limited changes could have been brought through amendments as was being done from time to time.

While examining the new criminal laws, Jesani expounded on the issues they throw up, some key ones being:
(i) the discretion given to the police to conduct a preliminary investigation before deciding whether an FIR should be filed,

(ii) the vagueness in the number of days of police custody that could be granted which could result in a situation where the earlier provision limiting to the first 15 days could be now extended to 60 or 90 days, and thereby almost pre-closing the possibility of bail during this entire period
(iii) the introduction of provisions from anti-terror law UAPA into the BNS, the introduction of the controversial sedition-like law in a graver and more dangerous form,

(iv) criminalisation of hunger strikes by protestors, and

(v) the admissibility of electronic evidence without any safeguards for privacy and data protection or procedures for seizure of devices and integrity of device and data, and other provisions which give arbitrary and sweeping powers to the police.

In truth the procedural law in the earlier criminal jurisprudence flowed from Article 21, which has been overturned by the new laws. 

If anything the struggle of the minorities to make their voices heard in the context of the spread of hate speech and targeted violence would be seriously affected as a result of the sweeping powers given to the police in the new criminal laws.

The manner in which Fr Stan Swamy was incarcerated under draconian laws was an indication of how the new criminal laws could be used to snatch away civil liberties and fundamental freedoms of citizens.

 The changes in procedural law as envisaged in the new criminal laws could have serious implications on laws like the SC&ST (Prevention of Atrocities) Act. The new laws would be instrumental in suppressing the on-going struggles of the Dalit and Adivasi communities for justice.

[Contributed by Gova Rathod]

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Frontier
Vol 57, No. 8, Aug 18 - 24, 2024