Following nationwide dismay over the adulation of an extremist by a sitting judge, a Bombay High Court bench headed by Justice SS Shinde on Friday withdrew its “personal comments” on the work of Father Stan Swamy, an accused Maoist in the Elgar Parishad case who died in hospital after the NIA counsel objected.
“If you think I said something, I take those words back,” said the judge after additional solicitor general Anil Singh, appearing for NIA, said, “After your lordship passed the comments…, the agency’s morale is affected.”
Singh had sought two minutes at the end of the hearing in Swamy’s case to make “submissions unconnected with merits of the matter”. He said, “Any personal or private comment from the bench, especially in open court in a pending investigation, gets twisted… (especially) personal comment on work of accused”.
At this, Justice Shinde said: “I had said so far as legal issues are concerned, it is a separate matter.’’ It was “very balanced and “the court endeavours to be balanced”, he said, before adding: “No issues, I take back whatever I have personally said.’’
Swamy, 84, a tribal rights activist, was charged with anti-terror offences for allegedly being a Maoist and arrested last October. In May, he was shifted to Holy Family hospital from Taloja prison by the Bombay High Court order, pending a hearing on his medical bail plea. He passed away on 5 July in the hospital ICU.
Explaining that its comments were not in any way connected to the merits of the criminal case against Swamy, the bench added: “Even we are human beings. When something has happened suddenly….”
It, however, told Singh: “We, in no uncertain terms, admire you. We never saw you get personally attached to the matter.”
During the hearing, Swamy’s counsel Mihir Desai raised four issues. One was to seek the participation of Fr Frazer Mascarenhas, through a lawyer, to participate in the judicial inquiry into Swamy’s death; to ensure the inquiry under the provisions of the Criminal Procedure Code is done in compliance with NHRC guidelines; since he Swamy died in Mumbai, to appoint a magistrate from the city; and, finally, to submit the report to the Bombay High Court once complete.
For NIA, Singh said he had no objection to the CrPC mandate being followed and an inquiry being conducted, but he said since Swamy’s appeals before the Bombay High Court were against rejection of bail by the trial court, they would stand abated with his “unfortunate death’’.
At this, Desai said there were various Supreme Court rulings that speak of the Bombay High Court having powers of parens patriae or to be the guardian of those unable to speak for themselves.
Parens patriae is Latin for “parent of the nation”. In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian, or informal caretaker, and to act as the parent of any child, individual or animal who is in need of protection.
The high court sought a compilation and of the issues that Desai raised and whether the HC can hear the matter and adjourned it to 4 August.