The Supreme Court on Thursday, 29 October, declined to grant bail on medical/humanitarian grounds to 80-year-old Varavara Rao, one of the accused in the Bhima Koregaon case.
However, the bench of Justices UU Lalit, Vineet Saran and Ravindra Bhat directed the Bombay High Court to consider Rao’s existing pleas for medical bail at the earliest, and take up a writ petition for him to be given treatment at a specialty hospital within seven days of being filed.
The petition in the Supreme Court had been filed by Pendyala Hemlatha, the poet-activist’s wife, who had argued that his continuing custody, despite severe health problems, including an altered mental state, amounted to “cruel and inhuman treatment”, violating Article 21 of the Constitution of India.
‘Don’t Want a Custodial Death on My Hands': Indira Jaising
Senior advocate Indira Jaising, appearing on behalf of Hemlatha, referred the court to he medical reports from Nanavati Hospital – to which Rao had been shifted in July after severe deterioration of his condition, including infection with COVID-19 – which showed he had a condition whereby he was unable to mentally comprehend what was going on.
Given his age, other illnesses and co-morbidities, the hospital had clearly stated in a report at the end of July that “the patient requires close monitoring.” However, on 28 August, the authorities moved him back to Taloja Jail without informing Rao’s family, or taking the leave of the Bombay High Court, which had been considering his bail pleas on medical grounds, Jaising submitted.
The Bombay High Court listed the medical bail pleas twice thereafter, when it was supposed to consider these medical reports, but each time, judges assigned to the case decided to recuse themselves, and so the matter had not been heard. The case was last listed on 17 September, and despite requests for urgent listing by Jaising, the high court was yet to take this up.
All this while, she informed the court, Rao was not receiving any of the specialty treatment he needed in his condition, and had been placed in the care of his co-accused in the case (including Vernon Gonsalves), none of whom are medical professionals. This amounted to a violation of Rao’s right to health and life under Article 21 of the Constitution, Jaising argued, noting that because of his condition he could not urinate, and was having to use a catheter which had not been changed for 40 days, increasing his risk of infection.
“I would not like to be responsible for a custodial death,” Jaising told the bench, and urged them to at least consider ordering Rao’s transfer to Nanavati Hospital till the Bombay High Court took up the matter.
The judges expressed their concern that the Bombay High Court had failed to list the matter for so long, but declined to take any action themselves, saying the high court was already seized of the relevant issues in the case.
Justice Saran also asked whether the court should get into the question of sending Rao to Nanavati Hospital for treatment as they couldn’t assess the quality of care being received by Rao – even though Jaising confirmed to the court multiple times that it was on affidavit that he had been placed in the care of his fellow inmates.
Solicitor General Tushar Mehta, appearing for the NIA, which is conducting the investigation into the Bhima Koregaon case under the UAPA, said he saw no grounds for Rao to be transferred to hospital at this point, and that if this plea was accepted, several other prisoners could also try to get such dispensation.
The judges did, however, ask the Bombay High Court to consider this request for transfer and treatment at a specialty hospital once Jaising filed a writ petition in the high court, which is likely to be done on Monday, 2 November. They also directed the Chief Justice of the Bombay High Court to list the medical bail pleas by Rao as soon as possible.