Bombay High Court extends Stan Swamy's stay at private hospital till July 6

Stan Swamy. File Pic

The Bombay High Court has extended the stay of Jesuit priest and activist Stan Swamy, an accused in the Elgar Parishad-Maoists links case, at a private hospital in Mumbai till July 6. Senior counsel Mihir Desai told a bench of Justices SS Shinde and NJ Jamadar that the 84-year-old was still undergoing treatment at the intensive care unit of the Holy Family Hospital, where he was shifted from the Taloja prison in Navi Mumbai following the HC's order on May 28 this year.

Swamy, 84, who claims to be suffering from several ailments, including Parkinson's disease, had moved the high court earlier this year through advocate Desai, seeking medical treatment and interim bail on health grounds. He had tested positive for coronavirus at a private hospital last month and was subsequently shifted to the ICU.

His plea for medical bail and bail on merits was listed for hearing in the high court on Friday but could not be taken up due to the paucity of time.
The bench adjourned the hearing to Tuesday and extended his hospital stay till then. "Till the next hearing, our interim order on his (Swamy's) treatment at the private hospital will continue," the bench said.

Swamy also filed a fresh plea in the HC challenging section 43D(5) of the Unlawful Activities Prevention Act (UAPA) that imposes stringent restrictions on the grant of bail to those booked under the Act. In his plea filed through advocate Desai, Swamy said the above section created an unsurmountable hurdle for the accused to get bail and, thus, was violative of the accused person's fundamental right to life and liberty as guaranteed by the Constitution.

Also Read: Elgar case: NIA says Stan Swamy is a Maoist, opposes his bail plea in HC

The common practice under the criminal justice system is to presume an accused person's innocence unless charges against him or her are proven by the prosecution. Section 43D (5) of the UAPA however, mandates that if a court has reasonable grounds to believe that the accusation against someone charges under the Act is prima facie true, then the accused shall not be released on bail.

Swamy's plea stated that presumption of innocence is a fundamental tenet of criminal jurisprudence and when a harsh condition, such as that mentioned above is imposed on the grant of bail, even before the trial is conducted, the same "inverts on its head, the principle of presumption of innocence."

Desai said the plea also stated that the provision under the UAPA to brand certain organisations as a front for banned or terrorist organisations was bad in law.
UAPA provides for the declaration of an association as unlawful and for the listing of organisations in the first schedule of the Act as terrorist organisations. Prosecuting agencies often charge accused persons under the Act of being members of organisations working as a front for banned ones.

In the Elgar-Parishad case, Swamy and his co-accused have been charged by the National Investigating Agency (NIA) as being members of frontal organisations working on behalf of the banned CPI (Maoists). Last month, the NIA had filed an affidavit before the HC opposing Swamy's bail plea. It had said that there did not exist "conclusive proof" of his medical ailments. It said that Swamy was a Maoist, who had hatched a conspiracy to create unrest in the country.

The Elgar Parishad case is related to inflammatory speeches made at a conclave held in Pune on December 31, 2017, which, the police claimed, triggered violence the next day near the Koregaon-Bhima war memorial located on the outskirts of the western Maharashtra city. The police had claimed the conclave was organised by people with alleged Maoist links.

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