Constitutional Court cannot be mute spectator to Rao’s health deteriorating in govt hospitals: Bombay High Court in Varavara Rao bail order

The Bombay High Court today granted temporary bail to 82-year-old poet and Bhima Koregaon accused Dr. Varavara Rao for a period of six months on a bail bond of Rs. 50,000..Granting relief to Rao, the Bench of Justices SS Shinde and Manish Pitale opted for a humanitarian approach while dealing with the case..The Court held,"With all humility at our command, keeping in view human consideration, the well recognized fundamental rights of the undertrial 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 Bench felt that as a constitutional court, it cannot remain a mute spectators to Rao’s medical condition."We are of the opinion that this court, as a Constitutional Court, cannot be a mute spectator to the undertrial (Rao) being sent to prison and then to Government Hospitals where his health deteriorates further, to be ultimately shifted to the Private Super- speciality Hospitals, upon intervention of courts and such movements of the undertrial continue back and forth only because his bail application has been turned down on merits under Section 43D(5) of the UAPA. …we are of the opinion that adopting a humanitarian approach in the peculiar facts and circumstances of the case is warranted.".The Court further added that merely because Rao is an accused in cases pertaining to serious offences, his health condition cannot be ignored..On the issue of whether the High Court 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 Bench answered in the affirmative. It held,."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.".It was further held that the advanced age of prisoners and their health ailments ought to be considered when dealing with their rights."The prisoners of advanced age like the undertrial, 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.".The Court noted that the Special NIA Court had not yet framed charges and there were over 200 witnesses yet to be examined. Nobody could inform the Court as to how much time the trial would be completed..Rao was admitted to JJ Hospital in May 2020 and then again in July 2020 after his health condition started deteriorating. While he was at JJ, he tested positive for COVID-19. Since St. George’s was a government facility designated for COVID, Rao was transferred there from JJ..The Court noted that Rao’s 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 noted after Rao was brought back to Taloja prison hospital from Nanavati, despite the requirement of constant monitoring, "no such facility was made available and there was absence of trained medical staff to look after the inmates like the undertrial suffering from various health conditions at an advanced age,” the order reads..Further, jail authorities failed to place on record any evidence contrary to the claims made by Rao that there were only three Ayurvedic practitioners in the Taloja prison, the order records..After perusing Rao's medical records, the Court noted,"It is significant that the medical reports and papers on record have indicated that the undertrial is suffering from cerebral atrophy, which can be age-related and that he has suffered from bouts of delirium induced by electrolyte imbalances. There is material placed on record on behalf of the undertrial to indicate a causal connection between cerebral atrophy and delirium leading to onset of dementia. There can be no doubt about the fact that a person in the health status of the undertrial would face acceleration and intensification of ailments if he continues to remain in custody.".The Court concluded from the material on record that the hospital attached to Taloja prison was ill-equipped and inadequate to take care of Rao's health..On the request of the State to transfer Rao to the JJ Hospital prison ward based on the medical reports of Nanavati Hospital, which deemed him fit for discharge, the Court 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 undertrial from July, 2020 till date......On an overall analysis of the material on record, we find that placing the undertrial 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.".On the reason why Rao cannot be released for an unlimited period of time, the Court reasoned that it needs to strike a balance between the rights of the undertrial and the necessity of bringing the accused to book, as early as possible."We feel that although the material on record does show that the health condition of the undertrial is precarious, sending the undertrial 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. 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 undertrial 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.The Court had reserved its verdict on February 1..[Read judgment here]