Bombay High Court Directs Immediate Medical Examination Of Varavara Rao To Consider Prayer For Shifting To Hospital

Appearing on behalf of Varavara Rao in his appeal against the rejection of bail and the writ petition filed by his wife, Senior Advocate Indira Jaising began her submissions. She referred to the National Investigation Agency's affidavit in the plea and submitted that the agency has not disputed the averments relating to the medical condition of Varavara Rao.

"My cause of action for the writ petition in the violation of rights under Article 19(1)(a) and 21 of the Constitution of India", Jaising said. She pointed out that the Supreme Court in its order dated October 29 asked the Bombay High Court to decide the matter within 15 days.

Accused persons do not lose their fundamental rights except to the extent of their right to mobility as has been taken away by the procedure established by law. All the fundamental rights of the prisoner remain intact, Jaising submitted.

She further asserted that Varvara Rao's health is deteriorating-

"Yesterday, Senior Advocate Mihir Desai received a call from co-accused Father Stan Swamy that Varavara Rao's health is declining.

I am seeking an urgent interim relief to shift Varavara Rao from Taloja jail to Nanavati Hospital. The ultimate relief I am seeking is that he be set at liberty as his rights are being violated. There is legitimate apprehension that Varavara Rao might lose life if he continues in this manner. He was earlier removed from Nanavati Hospital and put to Taloja jail when the proceedings were pending here, behind the back of the Court."

"He has dementia, he is bed ridden. He has developed severe urinary tract infection. I daresay if he loses his life in jail, it will be a case of custodial death", Sr Adv Jaising persisted.

She further informed the bench that her second interim prayer is to constitute an independent medical board of Nanavati hospital doctors to examine Rao.

Elaborating on his medical condition, Sr Adv Jaising said that on May 15, Rao was shifted to Taloja jail hospital. The court directed the jail authorities to file a report regarding his medical condition, which was not submitted. Thereafter, he was admitted to the hospital again and the family was not informed. On June 26, his bail application was rejected. In July, his health deteriorated again and he was admitted to JJ Hospital.

In July, Rao's family came to know about his being in JJ Hospital. When they visited him, they found him in a pitiable condition in a pool of urine without a nurse or an attendant. In jail, a co-accused, who is not a medical professional, was asked by authorities to look after Varavara Rao, Jaising said.

Then, Rao tested positive for Covid-19 on July 16.

"We had forewarned when he first moved bail application that he has comorbidities. On testing positive for Covid-19, he was shifted to St.George hospital. Later due to international pressure, he was shifted to Nanavati Hospital by the State.

However, the jail authorities shifted him back to Taloja jail from Nanavati without informing the Court and family members. Since his return to jail on August 28, he is being looked after by his co-accused" Jaising said.

"He is bed-ridden and is on diapers, he cannot control his urination. So he is with urine bag and his catheter has not been removed. Is this man going to flee away from justice?", Jaising argued.

Referring to NIA's reply in the matter, Jaising submitted that there is no whisper in the reply regarding the current medical condition of Varavara Rao. The only thing they say is he is accused under UAPA and say is a terrorist, Jaising said.

"In most cases cited by NIA, Varavara Rao was acquitted or FIRs were quashed. I wish NIA had done their homework better while preparing their reply", Sr Adv Jaising argued.

On the other hand, NIA's counsel Additional Solicitor General Anil Singh submitted -

"We cannot underestimate our government hospitals or government doctors. But at the request of the family of Varavara Rao, he was shifted to Nanavati Hospital, a super speciality hospital.

It was not on the basis of any orders of the Court that he was shifted to nanavati. It was done by the State on its own. We have always provided him with medical treatment in jail, at Nanavati hospital and JJ hospital."

Then what is the harm in permitting medical examination of Varavara Rao by doctors of Nanavati Hospital, Court asked.

"I am told that the jail doctors are consulting doctors of Nanavati and JJ hospital for treating Rao. As for the physical examination by Nanavati, State's counsel may be in a better position to point out", ASG Singh responded.

Constitution of a medical board will take time and if there is a medical examination by a panel of doctors of Nanavati, it will be known soon if shifting him to nanavati is necessaray, Justice Menon noted.

Public Prosecutor Deepak Thakare submitted that the latest medical report has been submitted. However, Sr Adv Jaising submitted that she has not received a copy of this report.

PP Thakare submitted that he will share a copy of the report with Sr Advocate Jaising as well. He then went on to read from the said report stating that all parameters are normal.

"The main issue is that the man (Rao) is suffering from dementia. He is mentally compromised. From what I heard from the report, there is no mention about these", Jaising argued.

What is the harm if a panel of doctors from Nanavati examines Varavara Rao in video rather than shifting him on aknee jerk reaction, Justice Menon pondered.

"We can do it, I will advise them (panel of Nanavati doctors) to do it tomorrow", PP Thakare said.

There is no substitute for a physical examination, Indira Jaising pleaded.

However, Court said- "Let there be a video examination straightaway by the same persons who gave the report on July 30."

My lords, I would still urge that there is a clinical examination, Jaising said.

Court then asked PP Thakare whether a physical examination by the same team of doctors can take place at Taloja jail.

At first let the doctors examine him on video and after that let them decide if physical examination is needed. This will be a bad precedent. There are doctors in jails who are experts, ASG Anil Singh sought to intervene.

After the ASG and Sr Adv Jaising went back and forth on the issue, Court remarked-

"Let this not be a debate with arguments and counter arguments. It is a question of a man's health. Let nanavati doctors make a video call at first and then if they say they cannot ascertain by video, let them visit the jail."

Finally, Court asked PP Deepak Thakare to see if the video call can be arranged today, noting that if it can be, then it should be arranged today. And doctors examining Rao must be the ones that gave the report on July 30 and are familiar with his condition, Court said.

Thereafter, Sr Adv Jaising sought for a listing tomorrow to which the Court said that tomorrow the bench is not sitting and this was a special sitting in light of the Supreme Court order.

The bench went on to dictate the order-

"To assess the present condition of Varavara Rao, it will be appropriate to have a video medical examination. All parties agree that video consultation can be arranged today or tomorrow morning by Doctors of Nanavati hospital who made the medical report dated July 30.

If the panel of doctors are of the view that video medical examination is not possible, it will be open for them to visit Taloja jail at their earliest convenience to examine Varavara Rao. All counsels agree that this is the best way to ensure his health."

PP Deepak Thakare agreed to inform the jail authorities and Nanavati hospital at the earliest.

The matter will now be heard on November 17.

Rao has been under custody since August 2018, facing charges under the UAPA, for alleged links with Maoists in the Bhima Koregaon case. He is f