Stan Swamy's deaths shows why protecting India’s institutional design is a must

The death of Father Stan Swamy, while being held as an undertrial without bail, charged with offences under the Unlawful Activities Prevention Act (UAPA) but never tried for them, has exposed the shaky foundations of India’s criminal justice system. While condemnation of the State and judicial actions that resulted in Fr. Swamy’s death in custody have poured in from a variety of sources, both domestic and international, many have been quick to point out the Congress party’s hypocrisy in condemning Fr. Swamy’s death — the UAPA, under which Fr. Swamy was charged and held indefinitely as an undertrial, was passed by the Congress when it was in power and strengthened significantly by Congress governments through amendments in 2004, 2008 and 2012. The latest round of amendments to the Act, brought by the BJP government to further strengthen the government’s powers under it in 2019, also saw rare cross-party support from the Congress on most of its provisions.

The Congress’ position on the UAPA has resulted in a unique situation. Fr. Swamy’s case is a clear instance of a gross violation of human and constitutional rights — He was an octogenarian with Parkinson’s held as an undertrial without bail in an overcrowded jail through the Covid-19 pandemic, with limited access to even the most basic facilities. However, the legislation that enabled these actions (even if not the actions themselves) has the support of both the ruling and the principal opposition parties.

Seen in this light, UAPA represents an instance of the political class, across parties in power and in the opposition, acting in their common self-interest by accumulating power in their hands, despite their political differences. These self-interested actions by the political class come at the cost of the common citizen, whose human rights are made vulnerable by such actions, irrespective of which political party is in power.

Weakening institutional design

The UAPA is not the only such example. For instance, in the area of campaign finance, amendments to the Foreign Contribution (Regulation) Act, 2010, were brought by the BJP, without Opposition from the Congress, to retrospectively legalise foreign donations received by both the Congress and the BJP that had been declared illegal by the Delhi High Court in 2014.

These instances have a uniform theme — the measures brought by the government of the day alter the institutional design of India’s democracy, ensuring that more power is taken away from the common citizen (through an abrogation of her human/constitutional rights) and given instead to politicians in power. The support of the opposition also comes from a place of self-interest — opposition politicians know that if they were to return to power later, the compromised institutional design that they have helped their political rivals create will work to their benefit, allowing them to accumulate greater power for themselves and use the system to suppress political opposition.

In many ways, this exposes the inherent weakness of any democracy — politicians on either end of the political spectrum are united by a desire for a system that allows them to exercise and retain increasing amounts of political power. Actions taken by one party to benefit itself, therefore, often see support from political rivals because their common interest as politicians unites them. The victims, of course, are citizens, who are left with weaker rights and a weaker institutional design underpinning their liberal democracy.

Put simply, therefore, the example of the UAPA tells us this — if India’s people let a political party in power take measures that attack their fundamental rights and result in the accumulation of power in executive hands, they are implicitly enabling the degradation of the institutional framework that underpins India’s liberal democracy. Once these changes are made and cemented, political change through action at the ballot box won’t matter because any new government, even if led by a political party on the opposite end of the spectrum, will likely use this same compromised framework to its own advantage, similarly attacking citizens’ rights in the process.

The need for all citizens’ support

It is for this reason that opposition to the UAPA, and condemnation of its misuse in Fr. Swamy’s case, should see widespread support from citizens of all political persuasions. After all, if the political class can be united in ensuring the concentration of power in a way that benefits them when they are in power, the citizenry should also cross political lines and present a united front against such actions. Of course, Fr. Swamy was not alone— Anand Teltumbde and Sudha Bharadwaj are among the many others still facing charges under the UAPA. Their plight and preventing a repeat of Fr. Swamy’s tragedy in their cases should be enough of a reason to speak up against the misuse of the UAPA in a way that allows the State to continue to hold them in custody without a conviction.

Most importantly, even for those who completely disagree with them politically, it is important to speak out against their continued detention. Today, they continue to languish in custody as undertrials owing to the UAPA, and it is Fr. Swamy who had to face the indignity of a death in custody as an undertrial. In a different time, with a different political party in power, it could be a different set of people, perhaps of a different ideological leaning, who face this treatment. The only way to prevent that is to strengthen the system and to ensure that the institutional design that underpins India’s liberal democracy is not eroded, that it cannot be misused by any political party in power. By speaking up in unison, across political lines, India’s citizens have the power to do this and to protect themselves from such treatment in the future.

(The writer is a London-based lawyer)