How the Death of an Activist Reveals India’s Deeply Flawed Criminal Justice System

For a country often heralded as the world’s largest democracy, India’s human rights record is rapidly deteriorating—and the international community is taking notice.

A 2020 report from the U.S. State Department calls India out for its arrest of activists and journalists, its increased censorship, and the rise in custodial deaths by police forces. The report states that in 2019, 125 persons died in police custody. The recent death of Father Stan Swamy, an 83-year-old tribal rights activist, who was incarcerated for nine months without bail or trial, is the latest human rights catastrophe to catch the attention of intergovernmental organizations and foreign governments. Father Stan Swamy’s death points to the urgent need for the reform of India’s criminal justice and prison system. Pressure from the international community is vital for this process.

Arrested from his own indigenous people’s education and training center in the eastern state of Jharkand in October 2020, the Jesuit priest spent nine months in Mumbai’s Taloja jail without bail or trial. While in prison, Father Stan Swamy was suffering from Parkinson’s disease, and he was denied medical bail on a number of occasions. He was moved to the Mumbai prison in the midst of a raging pandemic, when jails were actively being decongested on account of COVID-19. His medical condition continued to deteriorate, especially after he tested positive for COVID-19. A court order to shift him to a hospital was delayed by weeks of bureaucracy and red tape, contributing to his untimely death on July 5.

The onus of Father Stan Swamy’s death falls on both the criminal law structures that arrested him in the first place, and on the poor prison facilities that allowed him to suffer until his death. Thus, the need for criminal justice reform is twofold.

The 2019 Amendment of the UAPA allows for individuals to be categorized as terrorists without trial, which then implies that they must prove their own innocence.

The oldest person to be booked under the draconian Unlawful Activities (Prevention) Act (UAPA), Father Stan Swamy was one of 16 people arrested for allegedly inciting violence in the 2018 Bhima Koregaon case. He was accused of having links with the Naxalite movement and the CPI (Maoist)—claims that were unfounded and denied by him repeatedly. The 2019 Amendment of the UAPA allows for individuals to be categorized as terrorists without trial, which then implies that they must prove their own innocence. This amendment not only violates the universal principle of “innocent until proven guilty,” but also gives the state unprecedented power to use the UAPA to quell dissent. Arrests made under the UAPA have increased by 72 percent from 2015 to 2019.

The Jesuit priest returned to Jharkhand in the early 1990s during India’s neoliberalization period, after studying in the Philippines and Belgium and working in Bangalore for a number of years. India was just opening up its economy to global markets and foreign investment, which meant that land acquisition in tribal regions by corporations was increasing manifold. Stan Swamy deeply resonated with the Adivasi (indigenous tribes in Northeast and Central India) philosophy of following ecologically conscious paths to development and progress. He became a tribal rights activist, playing a large role in the fight against non-consensual land acquisitions in mineral-rich Adivasi areas. He spent his years educating indigenous people on land and mineral politics, and how to advocate for their constitutional rights. He was merely named in the Bhima Koregaon case for which he was arrested, and he claimed that he wasn’t even in Maharashtra (the state where the violence took place) at the time of the incident.

Regardless of the event’s details and his involvement, there’s a need to question the scope of the UAPA, given its frequent misuse. Between 2015 and 2019 alone, there were 7,480 arrests under the anti-terror law, of which only 155 people were convicted. Did Father Stan Swamy—an activist, socialist, and protestor—really fit the category of a “terrorist”? This categorization not only had grave implications for the Jesuit priest’s life, but it also speaks to a general and frequent violation of the fundamental rights to free speech, peaceful assembly, and religious freedom.

The second necessary point of reform is within Indian prison facilities and administration, and has been a point of public contention for decades. Indian prisons are highly congested, with 478,600 inmates in prisons that have a total capacity of 403,700. In other words, the number of inmates as of 2019 was 118.5 percent of total prison capacity. The overcrowding of prisons during the COVID-19 pandemic was a serious violation of inmates’ fundamental rights to health, life, and liberty. As a result, the Supreme Court attempted to decongest prisons by stating that investigators must use their discretion for all cases under seven years of imprisonment. Father Stan Swamy’s conviction under the UAPA would have been for seven years, and as an elderly man with a severe medical condition during a pandemic, the question of empathy within the criminal justice system arises.

Moving on from the very fact of his arrest, Father Stan Swamy faced inhumane treatment from prison officials during his time in prison, undoubtedly contributing to his untimely death. It is the sole responsibility of prison officials to oversee the general health and safety of inmates, and in this respect, the prison system failed him. He claimed to have trouble eating and drinking due to his disease, and his request for a straw and sipper was only granted three weeks later. Special attention, and more importantly medical bail, should have been given to an inmate with Parkinson’s disease. However, unlike the U.S. prison system where overfunding contributes to mass incarceration and the school-to-prison pipeline, Indian prison systems are one of the most underfunded departments within the state administration. Extreme overcrowding, poor infrastructure, and a shortage of staff resulted in the inhumane and unlivable conditions that contributed to Father Stan Swamy’s death.

The UN High Commissioner has been pleading with the Indian government to release the 16 jailed activists associated with the Bhima Koregaon case for the past three years, but to no avail.

The death of the 84-year-old activist has sparked anger and concern both domestically and internationally, with human rights activists, policymakers, foreign ministries, and international organizations expressing remorse toward Stan Swamy’s death and calling for reform in India’s approach to human rights. The UN High Commissioner has been pleading with the Indian government to release the 16 jailed activists associated with the Bhima Koregaon case for the past three years, but to no avail. The UN said in a statement that it was “deeply saddened and disturbed,” calling Father Stan Swamy a “human rights defender” and “long-standing activist.” Amnesty International, along with six other international NGOs, released a statement objecting to the injustice and neglect faced by the activist while in prison. The Office of International Religious Freedom under the U.S. State Department wrote in a tweet that India must “respect the vital role of human rights activists in healthy democracies.”

Indian civil society, the political opposition, and the private sector are fundamental to the process of criminal justice reform in India. While the very law being discussed (the UAPA) makes it challenging for civil society to pressure the government and voice demands, change from within remains vital. This is because India has often dismissed international pressure, given that foreign actors usually have no locus standi in Indian legal affairs. Civil society must demand that the scope of UAPA is narrowed down, by redefining who can be classified as a “terrorist” and under which conditions. Furthermore, demands must be made to reform Indian prisons on humanitarian grounds through decongestion and increased funding and staffing.

Across the world, we are witnessing a paradigmatic shift in the way individuals, states, and policymakers approach criminal justice. From #BlackLivesMatter shedding light on the racist underpinnings of the U.S. prison system, to the immense overcrowding of prisons in India, the Philippines, and Venezuela, the need for criminal justice reform on a global scale is dire.

The death of Father Stan Swamy is a moment in history that could change the course of criminal law and prison systems for the better, but pressure from the international community is vital. As Amnesty International has said, countries must begin to prioritize human rights when considering their bilateral relationships with India. The international community must amplify new domestic demands for justice and aid efforts to combat human rights abuses in a nation still called the world’s largest democracy.

Mahika Khosla is an Asia Program summer intern and a senior at Tufts University.

The views expressed are the author's alone, and do not represent the views of the U.S. Government or the Wilson Center. Copyright 2020, Asia Program. All rights reserved.