"Right Of Undertrial To Receive Medical Attention" : Supreme Court Directs To Take Bhima Koregaon Case Accused Gautam Navlakha To Hospital Immediately

While considering the petition filed by Bhima Koregaon case accused Gautam Navlakha seeking transfer to house arrest, the Supreme Court on Thursday directed that he be taken to a hospital of his choice immediately for a thorough medical check-up.

The Court will consider his plea next on October 21. The hospital has been asked to submit a report to the Court based on the check-up.

The 73-year old human rights activist, who was arrested in August 2018 and has been under custody ever since, has approached the Supreme Court after the Bombay High Court rejected his prayer. He stated that he is suffering from serious ailments, including skin allergy and dental issues, and cited the need to undergo colonoscopy to test suspected cancer. He requested that he be shifted to his sister's house and be placed under house arrest there.

A bench comprising Justices KM Joseph and Hrishikesh Roy, which had issued notice to the NIA in the case two days ago, observed in the order as follows :

"We are of the view that, noting that petitioner is an undertrial, and that the right of an undertrial trial to receive medical attention would be a fundamental right, we should pass an order directing the petitioner to be taken immediately for a thorough medical check up. There will be a direction to the Superintendent of Taloja Jail at Mumbai to take the petitioner immediately to the hospital of his choice so that the petitioner is enabled to undergo the requisite medical check up and to receive treatment. We make it clear that petitioner will necessarily remain in police custody".

The bench further permitted Navlakha's partner Sabah Hussain and his sister Mridula Kothari to visit him at the hospital subject to the hospital rules. No other visitors will be permitted.  The larger issue relating to his entitlement for house arrest will be considered on the next date of hearing. 

Court room exchange

Senior Advocate Kapil Sibal, appearing for Navlakha, submitted that he is suffering from serious ailments. The bench at this point asked the Centre's counsel why can't his plea be allowed, considering his ailments, age and lack of antecedents.

"Somebody is in custody, no criminal background. He is aged 70 years and an undertrial in an overcrowded prison", Justice Joseph observed.

"Keep whatever safeguards you want..that he will not step out unless it's on medical case. Nature of crime is serious. But it's alleged, not proved. If state wants man to die in jail, then...", Justice Joseph added.

The Centre's counsel submitted that a letter of adjournment was circulated. The bench then sought for the presence of Solicitor General of India and passed over the matter.

As soon as the Solicitor General arrived after sometime, Justice Joseph told him, "Your humaneness is put to test".

"My concern for national integration is put to test", Solicitor General replied. The SG sought for time to file reply.

"The petitioner who is challenging an order of April now cannot say that the other side should not get opportunity to file reply. I don't have an opportunity to effectively put forward my case. This may not be the case where the court should make an exception. Because everyone cannot afford to create a perception and afford eminent counsel", SG Tushar Mehta submitted.

The SG said that Navlakha's issues of skin allergy and dental problems are not ailments serious enough to be shifted to house arrest. The third reason cited by him Navlakha is colonoscopy. Regarding this, the SG said that he did not press the prayer for colonoscopy before the trial court. The court would have allowed that plea had he not withdrawn it.

At this juncture, Justice Joseph said, "In a lighter vein, Mr.Mehta, when was the last time you had a dental problem? A tooth problem, something which requires root canal, can be very worse".

"Let him be taken to dental surgeon of his choice daily. If he has problems, he has to be in a hospital, not in his sister's house", Solicitor General replied.

"What is the perception created? He is 73 years old. He is suspected of having colon cancer. Is he a threat to national security?", Sibal asked

While saying that there is no objection to providing medical treatment, SG submitted that if house arrest is allowed, there is a threat of destruction of evidence. He highlighted that Navlakha is facing charges under the UAPA for supporting Naxalite activities. 

"What is the evidence?Their electronic record, that's unsigned. I can understand an argument based on facts. These are prejudicial submissions. What is national integration got to do with this?", Sibal asked.

Sibal stated that for colonoscopy, there is a requirement of three days of fasting. The bench at this point said that it will direct that Navlakha be taken to hospital for check-up.

"We will direct that you be taken to the hospital. You can fast in the hospital. You will be safer also at hospital while fasting", Justice Joseph said.

"Let him have a thorough checkup. He has a lump in his throat", Sibal said.

 Case Title: Gautam Navlakha Versus National Investigation Agency And Anr | Diary No. 23064-2022

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