Mumbai: Justice Revati Mohite-Dere of the Bombay High Court recused herself from hearing the plea filed by Father Frazer Mascarenhas, former principal of St Xavier’s College, seeking clearance of Father Stan Swamy’s name from the 2018 Elgar Parishad-Bhima Koregaon case.
The matter was listed before a bench of Justices Dere and Prithviraj Chavan on Friday when the former recused herself and passed an order, saying that the matter must not be listed before the bench which comprises her.
Father Swamy, a Jesuit priest and tribal rights activist, was in judicial custody at Taloja prison when his health deteriorated. He was taken to Holy Family Hospital where his condition worsened after he contracted Covid. The 84-year-old passed away, while still awaiting trial.
In December 2021, Mascarenhas filed a plea seeking to clear Swamy’s name from the observations and findings made against the latter by a special NIA court while rejecting his bail application. The plea also sought for a judicial inquiry into his death in custody and to remove the ‘odium of guilty’ (hatred towards a wrongdoer) attached with the tribal rights activist's name.
Underlining that Swamy died without a trial, the plea argued that in the eyes of law, he is not guilty of the offences alleged against him irrespective of the (prima facie) findings of the special court”. A special judge rejected Swamy’s bail plea on March 22, 2021, observing that there was prima facie material against him.
Mascarenhas’ plea cited a Supreme Court ruling that said an accused person, not sent for trial, is presumed to be not guilty. “…but the same is not possible if the order of the Special Court is allowed to subsist,” the plea added. It further said that the special NIA court’s observations against Swamy refusing bail “besmirches” his body of work in tribal and human rights. Not to mention, the violation of his fundamental right to reputation under Article 21 of the Constitution, the plea added.
The petition cited an instance wherein a political party disallowed the Jesuits from naming a park after Swamy near Mangaluru and said that the odium of accusations had “even followed him to the grave”. Considering the trial against him was abated in the light of his death, Mascarenhas said that his petition remains the only forum where the “odium of prima facie guilt expressed by the special court could be redressed”.
