The National Platform for the Rights of the Disabled (NPRD), a cross disability rights organisation, has written to the National Human Rights Commission (NHRC) seeking its urgent intervention to help the ailing, wheelchair bound Professor G.N. Saibaba. The NPRD has asked that Prof Saibaba be shifted to “a super-speciality hospital for treatment, before it is too late.”
In Delhi, Prof G.N. Saibaba’s wife, rights activist A.S. Vasantha Kumari, told SabrangIndia that she had not heard from jail authorities yet, and did not know if they had taken any steps to help him get medical attention he needs, or even move him to a different area as someone in a jail cell nearby had already tested positive for Covid-19. That was the last bit of news Saibaba had given her when he made an ‘emergency’ call on July 11. “It is inevitable, there has been an uncontrolled outbreak of Covid-19 in Nagpur Central Prison, it’s a matter of days before it reaches me,” Saibaba had told his wife.
The other prisoners were very worried about Covid-19 and had refused to help Saibaba with his basic physical tasks, she had told SabrangIndia. “Even the authorities cannot assign anyone to help him,” said Vasantha, adding that Saibaba, confined to the wheelchair, has one hand limp and the other deteriorating fast. “His immunity is very low and if he gets Covid-19 it is a death sentence for him,” she had said and added she was worried that Covid-19 was spreading fast in the jail premises. Vasantha is also concerned that Saibaba’s aged mother, who herself is a cancer patient may not be able to meet her son anytime soon. “We are demanding his immediate release. His mother’s health is also deteriorating day by day and she wants to see him,” she said.
The NPRD has now raised its voice and written to Justice H L Dattu, Chairman, National Human Rights Commission, pleading with him to intervene so that G N Saibaba is shifted to a medical facility for the treatment he needs for his existing ailments and pain. They say this is an appeal to “save the life of Dr. G N Saibaba, a wheelchair user with 90 per disability, currently lodged in the Nagpur Central Jail.”
The NPRD has explained that Prof. Saibaba’s disability was initially caused by polio that has affected both his legs, when he was a child and then was compounded by “progressive and incurable conditions of the spine and nervous system.” Saibaba’s wife has also stated many times before that his health is getting worse because of the lack of proper medical treatment in Nagpur jail. The NPRD reminded NHRC of its earlier petition of June 1, 2017, and said that as per their information, “no constructive action has been taken till date.”
They said that Saibaba has been facing tremendous difficulties in the Nagpur Central Jail, where he is currently lodged. The NPRD has alleged, “He is mistreated and mishandled by the police and jail staff on a regular basis. Additionally, held in solitary confinement, even the earlier assistance given to him by other inmates has been stopped since some time now, owing to which he has to live in unhygienic conditions inside the inaccessible anda cell.”
The letter updates the NHRC on Saibaba’s medical history as well, saying, “Prof Saibaba was hospitalised in Delhi in February 2017, while on bail. He was diagnosed with acute pancreatitis and impacted gallbladder-stones, and advised immediate surgery in a hospital where special facilities for treatment of people with severe disabilities is available. This was denied to him.” They stated that when on bail, Saibaba was “under pre-operative treatment when he was convicted and immediately incarcerated.”
However his wife maintains that the family are not “demanding surgery, because it is risky due to his deteriorating health conditions.” She is also worried about the lack of post-surgery care in jail which she says is very unhygienic. “If after surgery he is sent back to the the same, or worse conditions, it may cause further complications,” she told SabrangIndia, and added that Saibaba urgently needs “regular special physiotherapy under an expert physiotherapist” to save his arm and help his pain lessen. She said, “He needs comprehensive medical care, under expert doctors.”
The NPRD has also stated, “The conditions in the Nagpur jail are deplorable. Apart from it being overcrowded many guards and prisoners (one even close to his cell) have been infected with the dreaded Covid-19. Given his weak physical condition, his co-morbidities, cardiac problem combined with high blood pressure as also a compromised immune system, there is every possibility that Dr. Saibaba may contract the virus. This may prove highly dangerous and fatal for him. Saibaba also requires immediate hospitalisation to get treated for various other health conditions, cited above, which he is being currently and consistently denied.”
It added that the conditions in which Prof. Saibaba was being held are “violative of his right to life, dignity, equality, protection of torture, cruel, inhuman and degrading treatment, non-discrimination including denial of reasonable accommodation and right to health. Over the years, the Supreme Court has in several cases clearly held that prisoners also have certain fundamental rights which include those stated above, which in this case are being undoubtedly and blatantly violated by the State.”
The NPRD reminded NHRC that “India is a signatory to the International Covenant on Civil and Political Rights (ICCPR), UN Convention on the Rights of Persons with Disabilities (UNCRPD) and the UN Resolution 70/175 on Standard Minimum Rules for the Treatment of Prisoners (Also known as the Nelson Mandela Rules), all of which reaffirm the right to life with dignity of prisoners.” This they said applies to the case of Prof. Saibaba, a person with disabilities. They said that the Rights of Persons with Disabilities Act, 2016 (RPD Act), “which was enacted to fulfil India’s obligation under the afore-mentioned convention, are wholly applicable to his case.”
According to the NPRD, “Under both the RPD Act and the UNCRPD the right to inherent dignity of the person is recognised as a guiding principle. Persons with disabilities are given the right to access to justice, which obviously includes prisoners with disabilities as well.” It added that “even the UN special rapporteurs on human rights had in June 2018 called for his release for the purpose of treatment.”
The NPRD highlighted relevant Articles of UNCRPD & The Rights of Persons with Disabilities Act :
Article 13 of UNCRPD states that the “States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.
Article 14 states that “States Parties shall ensure that persons with disabilities, on an equal basis with others: (a) Enjoy the right to liberty and security of person; (b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.
Article 15 states that “1. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation. 2. States parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.
Article 25 affirms the right of persons with disabilities to access the highest attainable standard of health without discrimination on the basis of disability under the right to health. Under Article 25(f) it states that, “Prevent discriminatory denial of health care or health services or food and fluids on the basis of disability.” In addition, in the RPD Act under Section 25(2)(j) it is stated that the State shall take measures to provide, “essential medical facilities for life saving emergency treatment and procedures.
The Rights of Persons with Disabilities Act, 2016
Section 3, sub-section (1) lays down that “The appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others.” Further under sub-section (3) it says that “No person with disability shall be discriminated on the ground of disability….” and sub-section (4) lays down that “No person shall be deprived of his or her personal liberty only on the ground of disability.”
Section 6 & 7 of the Act provides “Protection from cruelty and inhuman treatment” and “protection from abuse, violence and exploitation”.
“In addition to the special legislation and convention on disability the right to protection from torture, cruel, inhuman and degrading treatment and the right to be treated with humanity and respect for inherent dignity for those lawfully deprived of their liberty is specified under Articles 7 & 10 of ICCPR,” stated NPRD.
They also cite the Nelson Mandela Rules on treatment of prisoners, which has a specific mention of “measures and reasonable accommodation for prisoners with special needs for full and effective access to prison life (Rules 2(2) & 5(2)). The Rules also recognises the right to inherent dignity and protection from torture, cruel, inhuman and degrading treatment under Rule 1.”
The NPRD details that, “On the specific issue of health-related needs of prisoners, the Nelson Mandela Rules provide for the need to give adequate nutrition to maintain the health and strength of a prisoner (Rule 22). It clearly states that it is the State responsibility to provide for the healthcare of prisoners with access to necessary healthcare services without discrimination under Rule 24. Under Sub-Rule 24(2) it specifies that continuation of treatment and care should be provided to prisoners. This is especially relevant in the present case, as when Prof. Saibaba was incarcerated he had been in hospital for treatment of gall-bladder stones amongst other medical conditions and complications. The Mandela Rules specifically provide for the attention that needs to be paid to the health needs of prisoners with special needs (Rule 25(1)), transfer to special institutions of healthcare in cases where specialised treatment or surgery is needed (Rule 26(1)) and special attention to the health of those prisoners kept in involuntary separation including solitary confinement (Rule 46).”
The rights group has appealed to the NHRC to direct that Prof Saibaba be “a speciality hospital either in Hyderabad or Delhi, where his family members are available, for treatment,” adding that “given his precarious health condition and the co-morbidities, not shifting him out to a facility for treatment will prove fatal.”
Saibaba’s next bail hearing is due at the end of the month.