On 13 October, the Bombay High Court will consider whether to extend the bail granted by it to poet and activist Varavara Rao on medical grounds, back in February.
81-year-old Rao had been granted medical bail for six months by the court in view of various medical problems that had kept requiring hospitalisation and repeated deteriorations in his condition every time he was sent back to jail.
The high court's hearing comes soon after a special NIA court rejected the requests for bail on medical grounds of four other accused in the Bhima Koregaon case: Shoma Sen, Anand Teltumbde, Gautam Navlakha and Vernon Gonsalves.
The special NIA court – which hears these matters since they involve offences under the anti-terror UAPA law – has repeatedly denied bail to the accused in the Bhima Koregaon case despite their advanced years and medical conditions, even during the pandemic.
Sudha Bhardwaj was refused medical bail in May 2020. So was 83-year-old Jesuit priest Father Stan Swamy, in October 2020 and then again in March 2021. He then passed away in prison in July 2021 after his condition worsened.
The NIA, which took over as the investigating agency in the case in early 2020, has consistently contested the accused's requests for medical bail. They cite the seriousness of the UAPA offences they have been accused of, and claim the accused are provided with any medical treatment they require, in the jail hospital itself, or are taken to a government hospital.
But is this an unfair approach? When can the courts grant bail to an accused on medical grounds? And can this be denied because of the stringent bail provisions in laws like the UAPA?
THE GENERAL POWER TO GRANT MEDICAL BAIL
The question of granting medical bail does not of course arise in cases involving 'bailable offences', ie, less serious offences where a person is entitled to bail as long as they are willing to put up the bail amount, without any particular judicial scrutiny.
When it comes to 'non-bailable offences', bail can only be granted if a court agrees to this after scrutinising the case. In general, courts look at whether there is a risk that the accused will repeat the offence, or will abscond, or will threaten witnesses and tamper with evidence if released on bail.
The medical condition of the accused and any need for treatment is one of the things the judge can factor into the decision.
Under Section 437 of the Code of Criminal Procedure 1973 (CrPC), there is a general rule against granting bail to those accused of offences where the maximum punishment is death or life imprisonment, or where they have been previously convicted of a serious offence.
However, even in these cases, bail can be granted if the accused is "sick or infirm", as specified in the proviso to Section 437(1).
This general power of the courts to grant medical bail is a matter of judicial discretion. There are no specific rules or guidelines on how and when it can be exercised, but judges will consider the purported medical problem and look at relevant medical reports, before agreeing to grant a person bail on medical grounds.
"Obviously judges won't grant bail in the event of a cold," explains Justice Amar Saran, a former judge of the Allahabad High Court.
Bail granted on medical grounds tends to be on an interim basis, with the person returned to custody once they have received necessary treatment and their condition stabilises.
This is why Varavara Rao was granted bail for six months (which has been extended till the court can hear his extension plea), or why the disabled and extremely unwell Professor GN Saibaba (also accused of being part of Maoist plots) was granted medical bail by the Bombay High Court for two months back in 2015.
The court's decision to grant bail and how long it grants it for depends of course on the nature of their medical problem. It is not necessary for them to be suffering from a life-threatening ailment to be granted bail on medical grounds, but the issue must be a serious one which requires treatment or care, and can range from thyroid and heart issues to injuries to a person's hand which require surgery.
Even a person who has been convicted of a crime can make a request for bail on medical grounds, though courts have the option of directing they be sent to hospital for medical treatment without granting them bail.
Former Union Minister and ex-Bihar Chief Minister Lalu Prasad Yadav spent much of his time in jail from December 2017 receiving treatment at the Rajendra Institute of Medical Sciences in Ranchi and AIIMS in New Delhi, for instance.
WHERE THINGS GET COMPLICATED: SPECIAL LAWS WITH TOUGH BAIL PROVISIONS
Provided strong bail conditions are imposed to prevent an accused from running away while granted medical bail, or using the opportunity to threaten witnesses or tamper with evidence, it seems only logical to grant bail to an accused when there is a genuine medical case.
The bail provisions in the CrPC do not state anything to the contrary even for extremely serious offences. As mentioned earlier, Section 437 expressly recognises that bail can be granted to a sick or infirm accused even if accused of offences where life imprisonment or the death penalty are the punishment.
So why is it that the NIA courts have refused to grant bail to the Bhima Koregaon accused, even when their medical condition is clear?
Take Stan Swamy's case. In March, the special NIA court held that the 'collective interest of the community' outweighed any considerations of his age or illness, and rejected his plea.
At the crux of the court's decision was Section 43D(5) of the UAPA, which says that a court cannot grant bail to a person accused of a terrorism offence under the UAPA if they have reasonable grounds to believe that the case against them is prima facie true.
In Stan Swamy and Varavara Rao's cases, as with all the other Bhima Koregaon accused, the NIA courts have held that the case against them is prima facie true, and have therefore denied them regular bail.
According to the NIA, the restriction on granting bail in Section 43D(5) also applies to bail on medical grounds. As a result, they argue that since the special courts have already held that the case against them is prima facie true, they cannot be granted medical bail either by the courts.
This is not a new argument by the NIA – it has been used to contest medical bail in multiple cases in the past as well, including GN Saibaba's plea in the Bombay High Court back in 2015, and Redaul Hussain Khan in the Gauhati High Court in 2009.
The argument from the NIA has been extended not only to argue that Section 43D(5) prevents courts from using the general power to grant medical bail under Section 437 of the CrPC, but also stops the high courts and Supreme Court from granting bail under their writ jurisdiction.
Similar arguments have also been raised by the police and investigating agencies in cases dealing with other special laws which also have stringent bail provisions, like the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).
Under Section 37 of the NDPS Act, bail can only be granted to someone accused of serious offences under the Act if the court "is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail."
WHAT HAVE COURTS SAID ABOUT GRANTING BAIL IN SUCH CASES?
The lower courts have, in keeping with a general tendency, refused to grant medical bail to persons accused of offences under special laws like the UAPA, following as we saw in Stan Swamy's case, the arguments made by investigating agencies like the NIA.
This is not something they are bound to do. In 2012, the Gauhati High Court had reiterated that the special bail provisions in Section 43D(5) do not overrule the power to grant medical bail under Section 437 of the CrPC, though they did say that the judges would have to be extra careful that the accused's medical condition was serious and that their treatment could not be carried on in custody.
High courts across the country have also granted bail on medical grounds when convinced that the accused's condition is serious, based on the fundamental right to life, guaranteed under Article 21 of the Constitution, and the power of the high courts to enforce the fundamental rights through its writ jurisdiction.
For instance, in Varavara Rao's case, after having gone through the medical reports and seen how he was not getting proper treatment and supervision in the Taloja Jail Hospital and government hospital, the Bombay High Court said:
“If we deny relief to the petitioner (Rao), we will be abdicating its Constitutional duties as a protector of human rights and right to health covered under Article 21 of the Constitution.”
"It is thus clear to us that the presence of statutory restrictions like Section 43D(5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution.”Supreme Court in KA Najeeb judgment, 1 February 2021
In its judgment granting interim bail to Arnab Goswami last year too, the apex court had said that the courts cannot abdicate their responsibility when it comes to protection of fundamental rights, regardless of whether the exact procedure for bail had been followed.
These decisions have followed a long line of judgments over the years where the courts have specified that even people convicted of serious crimes, who are facing the death penalty, are not to have a mere 'animal existence' and must receive medical treatment they require.
Some of these judgments, such as In re Inhuman Conditions in 1382 Prisons, have acknowledged the need for India to adhere to international conventions and standards on treatment of prisoners that it has signed up to. One of these that the court specifically referred to is the United Nations Standard Minimum Rules for Treatment of Prisoners (known as the Nelson Mandela Rules).
Rules 24, 25 and 26 of the Nelson Mandela Rules deal with the rights of prisoners to have access to the same standards of health care as the rest of society.
In light of these principles, it is clear that the high courts certainly have the power to grant medical bail, even when a strict special law is in play.
The Bombay High Court, as we have already seen, has done it for Varavara Rao and GN Saibaba in UAPA cases, while the Karnataka High Court granted medical bail to an accused in an NDPS case in Archana Manohar Galrani vs State of Karnataka in December 2020.
It should be noted, however, that medical bail is not necessarily a matter of right, even in a serious case. If the high court is convinced that the person is getting adequate medical treatment while in custody (including admittance to a hospital when required), then it may deny bail while passing any necessary directions to ensure this treatment continues and the person is given all their medical records.
This is what the Bombay High Court did in Sudha Bhardwaj's case in August 2020, as well as the Supreme Court in multiple other cases, including that of convicted godman Asaram.
The decision to grant medical bail or not will therefore rest on the facts and circumstances of the case before the court.
When it comes to a case like Varavara Rao, who is extremely old, already had numerous health problems like hypertension and coronary artery disease and had then developed neurological problems in jail (while also getting COVID), and who was clearly not getting sufficient treatment while in custody, the decision is perhaps simpler.
However, even in cases which are not quite as terrible, the courts should ensure that they provide medical bail if necessary, to live up to the standards they are supposed to maintain under domestic and international law.
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