Bombay High Court Says Constitutional Court cannot be Mute Spectator to Rao's health deteriorating in Govt. hospitals
The Bombay High Court (HC) granted temporary bail to 82 years old Bhima Koregaon accused Dr. Vararvara Rao of 6 months on a bail bond of Rs. 50,000.
The HC bench comprising of Justices SS Shinde and Manish Pitale granted bail to Rao based on a humanitarian approach that the Court adopted while dealing with the case.
It held, "With all humility at our command, keeping in view human consideration, the well-recognized fundamental rights of the under trial to have quality medical aid for serious ailments suffered by him, advanced age, inadequate facilities in the hospital attached to the Taloja Central Prison, we are of the opinion that this is a genuine and fit case to grant relief; or else, we will be abdicating our constitutional duty and function as a protector of human rights and right to health covered under right to life guaranteed by Article 21 of the Constitution of India."
The Court stated that it is a Constitutional Court and it cannot remain a mute spectator to Rao's medical condition. It added, "We are of the opinion that this court, as a Constitutional Court, cannot be a mute spectator to the under trial (Rao) being sent to prison and then to Government Hospitals where his health deteriorates."
The Court further stated that "To be ultimately shifted to the Private Super- specialty Hospitals, upon the intervention of Courts and such movements of the under trial continue back and forth only because his bail application has been turned down on merits under Section 43D(5) of the UAPA."
The Court said that "We are of the opinion that adopting a humanitarian approach in the peculiar facts and circumstances of the case is warranted." It added that on the mere fact that Rao is an accused in cases pertaining to serious offences his health condition cannot be ignored.
Regarding the issue- Whether the HC can exercise its writ jurisdiction to release an accused from custody even when a regular bail application has been rejected on merits under Section 43D(5) of the Unlawful Activities (Prevention) Act?
The HC Bench replied affirmatively to the said issue and stated, "Taking any other view in the matter would amount to diluting rights available to prisoners to claim relief on health grounds under Article 21 particularly when material available on record indicates that continued incarceration of such persons would amount to endangering their life."
The Court held that the advanced age of prisoners and their health ailments ought to be considered when dealing with their rights.
It highlighted the facts that "The prisoners of advanced age like the under trial, who is about 82 years old, and such other prisoners suffering from various health ailments induced by old age when put beyond bars, certainly face the danger of their health conditions worsening and accelerating their journey towards the end of their life."
In May 2020, the accused was admitted to JJ Hospital and in July 2020 due to his medical conditions he was again sent to the hospital and he tested positive for COVID-19. Since St. George's was a government facility designated for COVID, Rao was transferred there from the private hospital.
The HC observed that the accused's health condition was pitiable during his stay in these two government hospitals and that it was only after he was admitted to the Nanavati Hospital on the intervention of the National Human Rights Commission (NHRC) that his health improved.
The Court in its order mentioned that Rao was brought back to the prison, "No such facility was made available and there was an absence of trained medical staff to look after the inmates like the under trial suffering from various health conditions at an advanced age."
The order further records, that jail authorities failed to show any evidence contrary to the claims made by Rao that there were only three Ayurvedic practitioners in the Taloja prison.
The HC bench concluded that "It is significant that the medical reports and papers on record have indicated that the under trial is suffering from cerebral atrophy, which can be age-related and that he has suffered from bouts of delirium induced by electrolyte imbalances."
It added, "There is a material placed on record on behalf of the under trial to indicate a causal connection between cerebral atrophy and delirium leading to the onset of dementia. There can be no doubt about the fact that a person in the health status of the under trial would face acceleration and intensification of ailments if he continues to remain in custody."
It further stated that the material on record that the hospital attached to Taloja prison was ill-equipped and inadequate to take care of Rao's health.
The HC held, "The reports dated 12/01/2021 and 27/01/2021 submitted by the Nanavati Hospital cannot be appreciated in isolation and they have to be read along with the entire set of medical papers placed before this court, tracing the health condition of the under trial from July 2020 till date."
The bench added, "On an overall analysis of the material on record, we find that placing the under trial in custody or even in the Prison Ward of the J.J. Hospital upon his discharge, is incompatible with his health conditions and that it would run the risk of deterioration of his health to the point of no return."
The HC stated that "We feel that although the material on record does show that the health condition of the under trial is precarious, sending the under trial back to where he belongs, is fraught with the risk of his presence being used by those allegedly associated with him to seek to revive the aforesaid nefarious activities."
The order reads, "This Court cannot rule out such a contingency and, therefore, it would be appropriate to impose such conditions as would be necessary for ensuring that the under trial on his own or those allegedly associated with him do not take undue advantage of the situation, which would ultimately adversely affect the trial."
The order was passed in two separate pleas one by Rao praying for bail and the other by his wife Pendyala Hemlatha seeking the Court's intervention in view of the alleged violation of his fundamental right to health.