Have the courts not learnt anything about medical bail?

The Special NIA court rejected Father Stan Swamy’s bail plea on grounds that “he was not only the member of banned organisation CPI (Maoist) but was also carrying out activities to further the objective of the organisation which is nothing but to overthrow the democracy of the nation.”

The NIA had initially sought 20 days to respond to his straightforward application for a sipper mug to drink liquids because the octogenarian was unable to hold a cup or a glass as his hands shook due to Parkinson’s disease. It was only after a month, that he received the sipper for his basic needs. 

Five months ago, in November last year, the Jesuit Priest had moved court for bail citing medical grounds. The 83-year-old Parkinson’s afflicted tribal rights activist also suffers from hearing loss from both ears and an arm injury.

To quote from Fr Stan Swamy’s application for medical bail, “He has undergone two hernia operations and is still suffering from abdomen pain. He suffers intense pain due to lumbar spondylosis i.e., the tear and wear of the lumbar disc and tremors in both hands due to Parkinson’s. Infact, he has been shifted to the prison hospital and is being taken care of by other inmates.”

Despite this, the court held that the collective interest of the community outweighs his personal liberty and also the “alleged sickness” he suffers. That the Court should look at chronic, age-related infirmity in such a frivolous light is telling. Interestingly, while the court did agree that Father Stan was not even present at the Elgar Parishad event at Bhima Koregaon that resulted in violence, his non-presence at the event could not be used as a defence.

The order passed by Judge Dinesh E. Kothalikar is tone deaf to basic statutory and human rights concerns. It reads, “If seriousness of the allegations made against the applicant are considered in proper perspective, in that case there will be no hesitation to conclude that the collective interest of the community would outweigh the right of personal liberty of the applicant and as such the old age and or alleged sickness of the applicant would not go in his favour, so that the discretion to release the applicant can be exercised in his favour.”

The entire judgment rejecting medical bail for the 83-year-old Jesuit priest runs into 74 paragraphs, but not one sentence expresses any concern or pertains to the attention Father Stan’s health needs.

Dr. Varvara Rao, also accused in the Bhima Koregaon violence case, was recently granted interim bail for six months after over 2 years of incarceration on medical grounds. Even though the order granting him bail, set an important precedent for medical bail in India, the same has not been followed in Father Stan’s trial.

It has not come easy for Dr. Rao who had two applications filed in courts to get his matter heard and adjudicated upon, despite a supreme court order directing the high court to list the matter at the earliest. Of the many days Rao spent in jail, he had been in the hospital for 149 days as argued by his lawyer Indira Jaising to highlight his poor health condition and push for interim bail.

Despite neurological issues like delirium, hallucinations, urinary tract infection, Covid-19, weight loss, fluctuating sodium and potassium levels, the legal system confined him to prison for over 8 months before granting him relief.

While hearing the bail plea of the renowned Telugu poet, the Bombay High Court made some observations holding that, “The condition of old age, sickness, infirmity and multiple health ailments suffered by the undertrial indicate that his continued custody would be incompatible with his health conditions and that sending him back to Taloja Central Prison would amount to endangering his life, thereby violating his fundamental right under Article 21 of the Constitution of India.” That was the Bombay High Court after months of delay when the family of the poet had to run from pillar to post seeking reliefs.

The high court verdict also stressed on adopting a humanitarian approach in the peculiar facts and circumstances of few cases such as that of Dr. Rao. In the Bhima Koregaon case in general however, for other accused under trials, it has been a burdensome path with the NIA resisting –with all the arguments at their command–any relief in the form of bail. Although the State is a litigant in such matters, the management and administration of Prisons falls exclusively in the domain of the State Governments. These are governed by the Prisons Act, 1894, and the Prison Manuals of the respective State Governments. This evolving law and jurisprudence hold the State responsible for both monitoring and modifying prison laws as and when required to safeguard prisoners –including under trials’– interests.

The State, National Investigation Agency (NIA) in this instance, not only opposed Varavara’s bail plea but listed out, on affidavit, details of 24 earlier cases pending against Dr. Rao. His counsel, advocate Indira Jaising had to respond and argue that he has been acquitted or discharged in 23 of these cases before they got relief. Should the agency have galvanised such prejudicial facts in the first place? The State’s opposition to his bail application was rigid even when the relief sought was for personal liberty to avail of a thorough medical check-up! The court in its order, was led to remark that, Varavara Rao was almost on his death bed and needed better medical attention than what he was receiving. 

Eventually, the court’s verdict in this case appears to have rather set an important precedent for other under trials. The court did not appreciate neither did it agree upon NIA’s stand that “it is not justifiable for an accused of such offence to seek relief on humanitarian grounds when such acts are itself against the human and state interest”.

The court responded by saying, “With all humility at our command, keeping in view human consideration, the well-recognised fundamental rights of the under trial 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.”

In Fr. Stan Swamy’s case however, the special court has failed to take into account the seriousness of his illness and follow the high court’s ratio. Now Father Stan will have to go through the same rigmarole of multiple pleas, long hearings, several adjournments before securing bail.

The Supreme Court recently held in that “the remedy of bail is the ―solemn expression of the humaneness of the justice system” but this humaneness has fallen short for many inmates who have been awaiting trial for months.

Clearly, the High Court’s concern for Rao’s health has failed to apply in Fr Stan Swamy’s case. The fact that relief from the courts also comes after fair delay and is not prompt further empowers agencies and the impunity under which they operate.

The rigidity in the NIA’s stance on the issue of medical bail in the infamous Bhima Koregaon case also needs to be viewed in the wider context of growing unaccountability in state agencies and institutions, especially when it comes to the crucial issue of checks and balances and democratic monitoring of their functioning. The revently-released, Prison Statistics Report of 2019 by the National Crime Record Bureau (NCRB) released data about prisons of all states except West Bengal as they have failed to furnish any information since 2017. The total occupancy rate at the end of 2019 was at a 118.5% with 4,78,600 prisoners when the actual capacity of prisons could afford only 4,03,739 prisoners.[1] Maharashtra has reported 36,798 prisoners by the end of 2019 with a total of 9,096 (6.3%) convicted prisoners and 27,557 undertrials (8.3%). Maharashtra has also reported the highest number of undertrial prisoners of other states that is 4,675 inmates (16%).

It is particularly ironic that lower courts do not follow the evolved jurisprudence on the issue of the right to health of under trials and prisoners. Way back in 1989, the Supreme Court in the judgment of Parmanand Katara Vs Union of India (1989), had ruled that the state has an obligation to preserve life whether he is an innocent person or a criminal liable to punishment under the law, thus laying a robust precedent for prisoners’ rights in India, especially the very fundamental right to health included under Article 21 of the Constitution. Then, in 2016, the Supreme Court passed another one of its landmark judgements on legal and constitutional rights of prisoners in India, especially the under-trial prisoners in Re-Inhuman Conditions in 1382 Prisons (2016). The petition was filed to address the status of prison reforms in India and to issue directions and the court directions led to the formulation of New Model Prison Manual, 2016 by the Ministry of Home Affairs.

International documents today have, by and large, equated lack of adequate medical treatment to torture. The UN Human Rights Commission has stated specifically that the right to health of prisoners could be engaged under the right to humane treatment in the Covenant on Civil and Political Rights. The United Nations Human Rights Commission has also adopted the basic Principles for Treatment of Prisoners in 1990 in which it is stated that “prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation”.

Related to this is the crucial issue of monitoring of conditions in Indian prisons, something around which progress has been tardy indeed, iundicating the complete absence of political and moral will.

Father Stan’s bail order may be read here: