Can an under trial, who is 90 per cent disabled, suffering from 90% post-polio paralysis, who can only move in a wheel chair with the assistance of two attendants and, moreover, one who suffers from serious cardiac issues including a history of heart stroke be refused bail?
This among others are the questions raised by the special leave petition (SLP) filed by professor Gokarakonda Naga Saibaba in the Supreme Court of India. Notice was issued by the court on Friday, January 22 and the matter is posted for two weeks later. (See also https://www.sabrangindia.in/article/flawed-verdict-bombay-high-court-judgement-refusing-bail-gn-saibaba)
The SLP was filed to challenge the order of the Nagpur Bench of the Bombay High Court dated December 23, 2015 on the regular bail application of professor Saibaba. At the time of passing of the order, the professor had been out on interim bail (granted by another bench of the Bombay High Court) until December 31, 2015.
Professor Saibaba was arrested in May 2014 and while other co-accused in the case have all been released on bail by the Nagpur bench of the High Court from July 2014 onwards, the differently abled professor has been denied his freedom A detailed Time-Line of this case can be read here.
The special leave petition before the Supreme Court raises serious questions of law and merit. Professor Saibaba, who surrendered on December 25, 2015, can only move in a wheel chair with the assistance of two attendants. He suffers from Anterior Horns Cell Disease; suffers bone deformity; has neurological problems; has a history of kidney and gall bladder stone; has restricted movement in the functioning of the left shoulder due to which he requires constant medical evaluation and treatment. Besides he suffers from a condition of systemic hypertension and hypertrophic cardiomyopathy as certified by the Executive Director and Dean of cardiology Fortis Hospital, Delhi.
The serious questions of law raised in his petition are:
b) Whether the fact that an under trial, who is 90% disabled, and requires at least two attendants for day-to-day activities including his toilet functions, and has several other medical ailments and complications so as to disable him from acting in a manner prejudicial to public order or security of State should be a factor to be considered in deciding bail?
d) Whether bail ought to denied to an accused against whom the sole allegation is membership of a terrorist organization (as designated under the Schedule to the Unlawful Activities Prevention Act, 1967, as amended in 2008), without any allegation of involvement in any terrorist act or any act of violence, especially after he has already spent 14 months in custody and when all other co-accused persons have been granted bail?
e) Whether the marked deterioration in the health of an under trial while he is in custody, such as to threaten his life, is a relevant change in circumstance for reconsideration of bail?
f) Whether some improvement in an under trial’s health after being admitted to interim medical bail on the grounds that his health had suffered in judicial custody, is a relevant change in circumstance for reconsideration of bail?
g) Whether an under trial can be denied bail when the sum total of the evidence claimed against him by the prosecution is “objectionable literature” and letters addressed by him to a terrorist organisation complaining that he was being discriminated and not allowed to interact with underground members of the organisation?
h) Whether mere membership of a terrorist organisation – absence of any evidence of participation in acts of disturbance of public tranquility and absence of any evidence of incitement to imminent lawless action – can be a punishable offence?
i) Whether an under trial against whom the only relevant material claimed by the prosecution is that he complained to a terrorist organisation that he was being discriminated by that organisation since they were denying him interaction with its underground activists, can be denied bail?
j) Whether a person can be denied bail for unpopular opinion and expression where such opinion and expression has neither been aimed at disturbing public tranquility nor at incitement to such disturbance?
k) Whether the High Court can dismiss a bail application on the basis of material that does not form part of the court record, i.e. an article about the accused written by a person not connected with the accused or his defence?
In the course of the hearing of the matter in the High Court, the Spinal Injuries Centre had prescribed that the petitioner (G.N. Saibaba) can be treated on an OPD basis. This was the sole factor relied upon by the Nagpur Bench of the High Court in denying him bail and cancelling his interim bail. As stated in the petition, in fact Saibaba suffers from several complications including hypertrophic cardiomyopathy and recurrent syncope requiring continuous follow-up and medical interventions.
In the 14 months that professor Saibaba remained in judicial custody, the petition states, his health has substantially deteriorated since the prison authorities could not provide him with bedding appropriate to his medical needs. These included low floor transportation to and from hospitals for his treatment; attendants who were trained or equipped to attend to him given his many complications including brittle bones; access to comprehensive, highly specialised, medical care to deal with his many complications and ailments.
He was granted medical bail by a Division Bench of the Bombay High Court on account of his deteriorating health while in judicial custody. (This was especially noted by the Division Bench in its order of June 17, 2015, relying on the report of the Chief Medical Officer, Nagpur Central Prison, dated June 16, 2015).
Following the December 23, 2015 order of the Nagpur Bench of the same High Court that had earlier granted him interim bail, professor Saibaba returned to judicial custody. There are grave chances that his health would have suffered since.
The SLP also states that there is absolutely no likelihood of the petitioner fleeing justice since he has strong roots in society – a mother, wife and child, and a permanent job as assistant professor of English literature at Ram Lal Anand college, University of Delhi