When It Comes To Fundamental Rights Of Prisoners It Is Not An Adversarial Litigation, It Is The Duty Of State: Bombay High Court

A division bench of Justices SS Shinde and Manish Pitale on Thursday repeatedly asked the State as well as the National Investigating Agency their main apprehension against Rao's release, keeping in mind Rao's advanced age and neurological issues, and if those apprehensions could be met with strict bail conditions.

"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.

The Court clarified that whatever was said on Thursday was only for the purpose of discussion and should not be misconstrued otherwise.

Case Background

Varavara Rao is booked under the stringent Unlawful Activities Prevention Act along with several other activists, in the 2018 Elgar Parishad – Maoist links case. The Court is currently hearing three petitions; two petitions filed by Rao for bail and one by his wife P Hemlatha for a declaration that Rao's fundamental rights to health, dignity and life, and thereby his rights, under Article 21of the Constitution of India have been violated by prison officials.

She has claimed that the prison officials have neglected to give him the timely treatment required. Rao is currently under the care of Nanavati super speciality Hospital.

The hearing on Thursday began with the Court examining a fresh report of Nanavati Super speciality Hospital.

Additional Solicitor General, Anil Singh, appearing for NIA said that Rao's medical condition is stable as per his latest report and medication is underway. Moreover, if the State has proposed to directly shift him to JJ Hospital, his bail application must be rejected.

Justice Shinde stated that Rao was shifted from JJ Hospital to Nanavati Hospital, "We are not comparing but…"

Singh clarified that Rao was shifted to Nanavati last year because he tested positive for coronavirus. "It is one of the best hospitals for covid, therefore he was taken there."

Justice Shinde then pointed out that even at Taloja Prison Hospital, Rao's catheter was not changed for over three months.

Singh said it was his submission that the State had provided adequate medical treatment to Rao and shifted him to the hospital as and when it was required. Moreover, if the court were to grant Rao bail on medical grounds, the court would be required to conclude that the State was incapable of taking care of him.

Justice Shinde then said that it is for the State, as well as the NIA, to take Rao's health into consideration. "If something happens to him, it is a great matter of concern.."

The Court further asked the State not to consider issues involving the fundamental rights of prisoners as adversarial litigations, "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 eventually went on to read the allegations against Rao in the chargesheet.

Summarising Singh's arguments Justice Pitale said that according to NIA, the court will have to give a finding that the State is incapable of taking care of the undertrial only then the medical bail can be granted.

"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."

The Court repeatedly asked the State's main apprehension against Rao's release, especially if stringent conditions were imposed, like keeping him within the jurisdiction of the court (within Maharashtra).

"Can the State's apprehensions not be met with strict bail conditions? He may not go back home." Justice Pitale said.

Singh submitted that old age cannot be used as a ground for bail, especially when Rao's condition is stable. "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 that it was a matter of "national security" and the court could look at the seriousness of the allegations. "But that is why there is a distinction between regular bail and medical bail." Justice Shinde said.

Singh insisted that the court could impose conditions regarding Rao's treatment in JJ Hospital. "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 for February 3, with a rider that the Bench's comments during the proceeding were only for the purpose of discussion.