On Thursday, a division bench of Justices SS Shinde and Manish Pitale repeatedly requested the State and the National Investigation Agency to apprehend Rao’s release, keeping in mind the advanced age and neurological problems of Rao, and whether strict bail conditions could be met for those apprehensions.
Justice Pitale observed,
“The fact that he is 82, suffers from cerebral atrophy… We are examining if we can take this a step further to ask what is the quality of life of a person aged 82? Can continued incarceration be detrimental to the health of an under-trial.”
The Court explained that whatever was said on Thursday was just for discussion purposes and should not otherwise be misconstrued.
Background of the Case
In the 2018 Elgar Parishad- Maoist links case, Varavara Rao is booked under the stringent Unlawful Activities Prevention Act along with several other activists. Three petitions are currently being heard by the Court, two by Rao for bail and one by his wife, P Hemlatha, for a declaration that Rao has fundamental rights to health, dignity and life, and therefore his rights, pursuant to Article 21 of the Indian Constitution have been violated by prison officials.
She alleged that the prison officials failed to give him the necessary timely treatment. Rao is currently in the care of the super speciality hospital of Nanavati. Thursday’s hearing started with the Court reviewing Nanavati Super Speciality Hospital’s latest report.
Additional Solicitor General Anil Singh, appearing for NIA, said that according to his latest report, Rao’s medical condition is stable and treatment is underway. Furthermore, if the State has proposed that he be directly admitted to JJ Hospital, his application for bail must be denied. Justice Shinde stated that Rao was shifted from JJ Hospital to Nanavati Hospital, “We are not comparing but…” Singh explained that since he tested positive for coronavirus, Rao was transferred to Nanavati last year. “It is one of the best hospitals for covid, therefore he was taken there.”
Justice Shinde then found out that Rao’s catheter had not been altered for over three months, also at Taloja Prison Hospital.
Singh claimed that it was his submission that Rao had been given appropriate medical care by the State and had been transferred to the hospital as and when it was necessary. Moreover, if, on medical grounds, the court were to grant Rao bail, the court would be forced to assume that the State was unable to take care of him.
Justice Shinde then claimed that it is for the state, as well as the NIA, to take into account the welfare of Rao. “If something happens to him, it is a great matter of concern..”
The Court further ordered the State not to recognise issues relating to the fundamental rights of prisoners as adversarial litigation, “When it comes to fundamental rights of the prisoners it is not an adversarial litigation, it is the duty of the state.”
“But the court does needs to consider the seriousness of the offence, even if it is bail on medical grounds.” Singh said. He also finally went on to read the accusations in the chargesheet against Rao.
Summarizing the arguments of Singh, Justice Pitale said that the court would have to give a finding according to NIA that the State is incapable of taking care of the undertrial only if the medical bail can be given.
“The fact that he is 82, suffers from cerebral atrophy… We are examining if we can we take this a step further to ask what is the quality of life of a person aged 82? Can continued incarceration be detrimental to the health of an undertrial.” Justice Pitale said, adding, “The court is faced with the situation that if we reject bail on this position of law and then he may need to be taken to Nanavati Hospital again.”
“Can the State’s apprehensions not be met with strict bail conditions? He may not go back home.” Justice Pitale said.
Singh argued that, especially when Rao’s situation is stable, old age should not be used as a justification for bail. “At the cost of repetition, many prisoners above the age of 80 are in jail. This issue was raised in another petition as well. The court, after discussing in detail, was satisfied that all provisions are made in jail.”
Justice Shinde said the bench was wondering if “some workable solution could be brought…We have to consider law and humanity and then strike a balance”.
Singh said it was a “national security” problem and the court should look at the severity of the allegations. “But that’s why there is a difference between regular bail and medical bail,” said Justice Shinde. Singh insisted that at JJ Hospital, the court could enforce conditions regarding Rao’s care. “Put whatever conditions.”
Singh then cited the case of spiritual leader Aasaram Bapu whose was denied bail considering the seriousness of the offence. Asaram has since been sentenced to life imprisonment.“My argument is that instead of imposing conditions on him [for bail], impose conditions on the State on how he has to be kept in the prison ward… we will be bound by those conditions.” Singh submitted. The Court then adjourned the case on 3 February with a rider claiming that the Bench’s findings during the trial were for discussion purposes only.