On 28 May, tribal rights activist Father Stan Swamy was finally shifted to Mumbai’s Holy Family Hospital for medical treatment on the orders of the Bombay High Court. However one cannot forget that the Jesuit priest was in Taloja Jail for over seven months, along with 15 others in the Bhima Koregaon case.
As an older person with serious comorbidities, he has suffered violations of his right to health under Article 12 of the International Covenant on Economic, Social and Cultural Rights, the right to live with dignity under Article 6 of the International Convention on Civil and Political Rights as well as the standards articulated under the United Nations Standard Minimum Rules for the Treatment of Prisoners, (also known as the Nelson Mandela Rules)
It bears noting that the trial of Swamy and his co-accused has not begun, nor has the state shown any inclination to begin the trial. It has to be reiterated that it is the accepted position in both international law as well as Indian law that detained persons do not lose their right to health and well as the right to live with dignity on imprisonment.
This core principle of the inherent right to dignity of prisoners is embodied in Rule 1 of the Nelson Mandela Rules which states, “All prisoners shall be treated with the respect due to their inherent dignity and value as human beings.”
The General Assembly resolution of 45/111 of December 14, 1990, which proclaims the Basic Principles for the Treatment of Prisoners, interalia applies the right to health guaranteed in international law to the specific situation of prisoners.
Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
The Nelson Mandela rules
The question of what could discrimination with respect to health care mean in the context of prisoners is elaborated in Rule 24 of the Nelson Mandela Rules:
“The provision of health care for prisoners is a State responsibility. Prisoners should enjoy the same standards of health care that are available in the community, and should have access to necessary health-care services free of charge without discrimination on the grounds of their legal status.”
Thus as far as international law is concerned prisoners have the right to “health services available to all other persons in the country” and should have access to “same standards of health care that are available in the community”. If the prisoner does not have access to the same standards of health care, then he is subjected to discriminatory treatment with regards to access to health care. With respect to Swamy, a Jesuit priest, the question relates to what the “community standard” of health care is when it comes to the right to health of the elderly.
Recent research by the International Committee of the Red Cross is coming to the finding that older people face particular health related challenges in the context of their detention. The “equivalence of care” standard with respect to the elderly has to take into account developments in the field of geriatrics which takes a “patient-centred approach to prioritising and assessing the risks and benefits of different (and at times competing) interventions offered to patients with multiple medical conditions and disability through a comprehensive assessment of their personal goals of care”.
Some of the key aspects of the right to health highlighted by specialists in geriatrics include the fact that the elderly suffer a compromising of “functional ability”, which is the “individual’s capacity to attend to their own ‘activities of daily living’ (ADLs), such as dressing, toileting and feeding oneself, and to common daily tasks called ‘instrumental activities of daily living’ (IADLs), such as managing one’s finances, medication etc”. The elderly suffer from chronic medical conditions, experience frequent falls, suffer disproportionately from forms of sensory impairment and more.
All these complex medical challenges are further exacerbated in a confined environment. The layout, uneven flooring as well as excessive crowding in a prison can pose unique dangers to older persons who are unable to adapt to “the environment’s unique physical demands”, says the Red Cross. This leads to a greater risk of falls. Prisons often do not have medical care approximating to geriatric care which can respond to the individualised needs of older persons.
Sadly prisons are not equipped to deal with providing care to terminally ill and actively dying patients. The community standard of care for persons with a life-limiting or serious illness is palliative care.
Thus if the detention of Stan Swamy is assessed from the perspective of the community standard of what an elderly person in entitled to in society, his right to health has been grossly violated as he has not received the individualised care which is what an older person should receive. The consequences of this lack of care have been grave and in the course of eight months of detention, his body has been subjected to a process of accelerated ageing.
As he put it: “When I came to Taloja, whole systems of my body were very functional, but during these eight months there has been a steady by slow regression of whatever my body functions were.”
The most visible deterioration is in terms of what geriatrists have called capacity to attend to their own “activities of daily living” (ADLs) as well as instrumental activities of daily living. (IADL) Stan Swamy entered prison able to eat, have a bath, read and go for a walk. After eight months in prison his senses have been further impaired. Swamy said:
“Eight months ago, I would eat by myself, do some writing, walk, I could take bath by myself, but all these are disappearing one after another. So Taloja jail has brought me to a situation where I can neither write nor go for a walk by myself. Someone has to feed me. In other words, I am requesting you to consider why and how this deterioration of myself happened.”
Swamy’s multiple health complications including Parkinson’s disease combined with the additional vulnerabilities of age has also led to avoidable situations such as falls in prison. All these complications has meant that his treatment has to rely on a variety of medications, and since medicines can have side effects especially at his age, he needs individualised treatment, which he has not been provided with.
In case of emergencies, the prison authorities in Taloha rely upon JJ Hospital in Mumbai, which too is unable to provide the degree of care required by an older person. This fact is strongly asserted by Stan Swamy in a hearing before the court, where he “vehemently refused to get admitted to JJ Hospital”.
He clearly stated:
“Yesterday I was taken to JJ Hospital, so I got an opportunity to explain what I should be given. My deterioration is more powerful than the small tablets that they give.
…No, I would not want to. I have been there thrice. I know the set-up. I don’t want to be hospitalised there. I would rather suffer, possibly die very shortly if this were to go on. I would prefer this, than be admitted at the JJ Hospital. It is a very difficult moment for me.”
Swamy refused to get to get admitted to any other hospital either, requesting the court for interim bail to be with his own. As he put it: “Whatever happens to me, I would like to be with my own.”
Swamy is clearly articulating that the jail and the hospital attached to the jail are not able to provide the required health care. All they do is provide “small tablets” which are not able to treat his deterioration which is “more powerful” than that. Further he is also poignantly articulating that he would “possibly die very shortly if this were to go on”.
Jails are not suitable spaces for palliative care, which is a right he is entitled to as part of the right to health of those in the evening of their lives. The only suitable space for‘palliative care is the home environment that he is used to. Palliative care is not just a physical space but a network of loving relationships. To condemn a person to the harsh environment of a jail and deny the person the loving relationships that make the difficulties of a complex medical condition bearable is to deny not only the right to health but the right to live with dignity in the evening of one’s life.
While temporarily being at the Holy Cross Hospital for medical treatment is a marked improvement from Taloja jail, it is no substitute for permanently being at home. Being treated at home is a key dimension of an appropriate standard of care that Swamy is entitled to by virtue of being an “older person”.
While the decision to release a prisoner on bail is a judicial decision, it is the responsibility of the prosecution to not oppose the release of Stan Swamy on bail due to the factors listed above. The larger question of the state’s malafide prosecution of the Bhima Koregaon accused raises the just demand that prosecution against all the accused be withdrawn.
In the interim, it is absolutely vital that the state should recognise its constitutional responsibilities, take into account how the continued detention ofSwamy has adversely affected his right to health as well as the right to dignified life and allow him to be detained at his home in Bagaicha Community Centre near Ranchi, Jharkhand.
Home detention would ensure that Swamy is able to be among his loved ones in a familiar environment and this will ensure that detention will not continue to violate his right to health, his right not to be discriminated against on account of his age and his right to a dignified life. It bears repeating that Swamy does not lose these rights by virtue of being a prisoner as far as the standards of both national and international law go.
The Supreme Court in “Gautam Navalakha v National Investigation Agency” observed that:
“We observe that under Section 167 in appropriate cases it will be open to courts to order house arrest. As to its employment, without being exhaustive, we may indicate criteria like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest.”
Clearly Swamy, by virtue of his age as well as his health condition, should be detained (if at all) only within his home as any further detention in prison or other alien environments will only result in a further deterioration of his health.The alarming news that Swamy has tested positive for Covid-19 only further increases the imperative for the state to urgently act and authorise home detention.
It is imperative that Stan Swamy’s unconscionable detention at his age in prison and the consequent violation of his rights to health and dignity should alert both the Central and state governments as well as civil society activists as to the plight of other older persons in prisons across India and immediately redress the same.
Arvind Narrain is a lawyer and writer based in Bengaluru.