New Delhi: The Bombay High Court Monday granted bail to Bhima Koregaon accused and 82-year-old poet Varavara Rao for a period of six months on a bail bond of Rs 50,000.
A bench of Justice S. Shinde and Justice Manish Pitale said the high court, as a constitutional court, cannot be a mute spectator to Rao’s medical condition and denying him bail in view of his health situation will be an “abdication of its constitutional duty”.
A prisoner of an advanced age cannot be forced to live a subhuman existence behind bars as there is risk of their medical condition worsening behind bars, the court said.
An undertrial’s health cannot be ignored just because he is accused of a serious offence, the court said when the prosecution argued that the National Investigation Agency (NIA) special court has already dismissed Rao’s plea for regular bail on merits.
Rao’s application for regular bail on merits is pending with the Bombay HC and was last listed for a hearing in March 2020.
The court HC relied on a recent order of the Supreme Court in a case filed under the Unlawful Activities (Prevention) Act (UAPA) 1967 to hold that that an undertrial accused of serious offences can also be granted bail if the person’s fundamental rights are violated.
HC relies on recent Supreme Court judgment
Unlike in regular criminal cases, where bail is supposed to be the norm and pre-trial jail an exception, a person accused of terrorism under UAPA cannot be released on bail if the court, after perusing the case diary and police report, “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true”.
However, a recent Supreme Court judgment asserted that while section 43D(5) — provision related to bail — does include restrictions, it “does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III (fundamental rights) of the Constitution”.
Upholding the bail granted to K.A. Najeeb, who had been in jail since April 2015 in the infamous Kerala case in which a professor’s palm was chopped off, the Supreme Court earlier this month ruled that the UAPA does not stop constitutional courts from granting bail on the grounds of violation of fundamental rights under the Constitution.
The HC relied on this order of the top court to hold that an undertrial accused of serious offences, even under the UAPA, can be granted bail purely on grounds of sickness and advanced age, if it is found that his continued incarceration is endangering his life.
“The onset of old age and concomitant debilitating effect on the mental and physical conditions is an aspect which assumes great significance in the context of keeping such old aged persons behind bars,” the court said.
It took into consideration documents produced by Rao’s lawyers to note that he suffered from cerebral atrophy, which can be age related, along with bouts of delirium induced by electrolyte imbalances.
There can be no doubt about the fact that a person in the health status of the undertrial would face acceleration and intensification of ailments if he continues to remain in custody, the court said.
Bail subject to conditions
The Bombay High Court’s order came on a bail application filed by Rao and a petition by his wife, Hemalatha, contending the poet’s incarceration was in violation of her husband’s fundamental right to health.
Rao — one of the 15 activists arrested in connection with the case — is the first accused in the incident to be out on bail.
Taken into police custody from his house in Hyderabad in November 2018, he was charged under the provisions of the Unlawful Activities Prevention Act (UAPA), 1967.
The allegation against Rao is that as a senior member of a banned organisation (Communist Party of India-Maoist), he was allegedly involved in arranging funding, and providing arms and ammunition to wage war against the established government.
In the wake of the material placed on record by the NIA, the prosecuting agency, the bail was granted subject to conditions.
The court imposed restrictions on the poet, asking him to not make any public statements related to the proceedings. He was also told not to establish connection with the co-accused.
According to the court order, Rao will have to remain within the jurisdiction of the special NIA court in Mumbai, with the bench observing that allowing Rao to go back to Hyderabad is “fraught with risk”. Further, he must also attend the police station through a fortnightly WhatsApp call.
Taloja prison has only 3 Ayurveda practitioners
Rao’s health condition deteriorated from May 2020. Following his positive Covid-19 result in July, Rao was moved to a government hospital and then, on the intervention of the National Human Rights Commission, to a private facility. When his health improved, he was sent back to the Taloja central jail.
He was again admitted to Nanavati Hospital in November 2020 on court orders. During the arguments for bail, Rao’s lawyer detailed the incapacity of Taloja prison to take care of Rao or even inmates with much less serious health conditions.
“There were only three Ayurvedic practitioners to look after the ill and infirm inmates,” the lawyer submitted.
It was noted by the court that this fact was not disputed by the jail authorities when they were called upon to explain.
The lawyers further claimed there was no nursing staff there and tasks of nursing were being performed by untrained undertrial prisoners.
Sending Rao back to jail will be violation of fundamental rights
Accepting the lawyer’s arguments, the bench said, “The condition of old age, sickness, infirmity and multiple health ailments suffered by the undertrial indicate that his continued custody would be incompatible with his health conditions and that sending him back to Taloja Central Prison would amount to endangering his life, thereby violating his fundamental right under Article 21 of the Constitution of India.”
It is well recognised that an undertrial has the right to access qualified medical aid for serious ailments, the court said, adding that the inadequate facilities in the jail hospital is reason enough to grant relief to Rao.
“… we will be abdicating our constitutional duty and function as a protector of human rights and right to health covered under the right to life guaranteed by Article 21 of the Constitution of India,” the court added.
The NIA’s arguments that Rao’s regular bail plea on merits was pending before the HC was rejected by the bench, which said the same does not prevent the court from exercising its jurisdiction if the undertrial makes out a special case on the ground that his continued incarceration is incompatible with his health condition.