'When You Are Selectively Charging People, You Are Undermining Rule Of Law' : Jaising In Varavara Rao's Bail Plea

The Maharashtra State informed the Bombay High Court on Thursday that the state was willing to shift 81-year-old Telugu poet Varavara Rao directly to Sir JJ Hospital instead of sending him back to the Taloja Prison Hospital.

Rao, an accused under the UAPA in the Elgar Parishad – Maoist Links case, suffers from various medical complications and is currently admitted in Nanavati Super Speciality Hospital. A team of experts has informed the court last week that Rao is fit for discharge.

Arguing Rao's bail on medical grounds, his lawyers have repeatedly emphasized the lack of infrastructure in the prison hospital to monitor his condition and therefore suggested interim bail for at least three months for the ailing man.

Public Prosecutor Deepak Thakre informed the court that Rao could be shifted to Ward number '44,' - the prison ward of Sir JJ Hospital. "I am making this statement on instructions," he said. "Now with this proposition, the argument that Taloja Prison doesn't have the facilities, goes." Additional Solicitor General Anil Singh appearing on behalf of the National Investigating Agency was quick to submit.

Earlier during the hearing, senior advocate Indira Jaising made an emphatic argument for Rao's release. She is arguing Rao's wife - P Hemlatha's - petition alleging violation of her husband's fundamental right to health under Article 21 of the Constitution by prison officials.

"To deny the right to health of a prisoner is an act of cruelty," she said, adding "If I am in prison by an order of the court, the state is responsible for my wellbeing in custody."

"But if all facilities are provided at Taloja [prison hospital], what is your argument then." Justice SS Shinde asked. "What cannot be washed away is my apprehension based on the past," Jaising said referring to Rao's health has progressively deteriorated while he was in prison.

She asked the court to consider his age. "No person above the age of 80 should ever be kept in prison. What life imprisonment means for a person at 80 is vastly different from what it means for a 25-year-old."

"We don't know if what you are arguing has ever being argued in any country before." Justice Shinde said referring to Jaising's suggestion for an age limit to imprisonment. The court then sought to know the status of the case.

When NIA counsel Sandesh Patil informed the court that there are 200 witnesses cited in the charge sheet but not all of them may be examined, Jaising said that if 200 witnesses were to be examined, Rao would surely die in prison. "Take age into consideration as a factor. My job is to present to you justice, as I see it - with mercy."

She said that in India, "the process is the punishment." She asked the court to put any number of restrictions on Rao, keep him homebound, but allow him to go back home to his family in Hyderabad after his discharge from the private Hospital, even temporarily.

"We have given him every facility we could. The problem is the Act...( UAPA)" justice Shinde said. Not a single judgment granting an accused bail on medical grounds, under the Unlawful Activities (Prevention) Act has been brought on record.

Jaising argued that one of the reasons for Rao's improved condition is he's been given access to his family in the hospital. Referring to his neurological condition when it was at its worst, she said, "He once wrote a letter to his wife, saying his wife passed away 15 years ago. Now he is interacting with her. This is the condition of people with dementia... What is dementia? It's not having awareness of time-space and people."

She told the court that Rao wasn't a man who would flee. "As an observer I can say that when you are selectively charging people you are undermining the rule of law. He is a poet, his views are out there."

Jaising further cited three international declarations on human rights; Universal Declaration of Human Rights, International Covenant for Civil and Political Rights and the International Covenant of Economic, Social and Cultural Rights along with the Protection of Human Rights Act.

Jaising cited 13 Supreme Court judgments and the case of Mouisel vs France to show how they deal with elderly prisoners. "Everyone has the right to live the last few years of their life with dignity." She said.

Arguments in the case will now continue at 2.30 pm, on Wednesday(January 27).