Judiciary comes to the aid of Bhima Koregaon accused

Amid the spread of Covid in jails, it took a HC order to direct jail authorities to give all prisoners their hospital reports

Imagine being taken to hospital and not being given your medical report by those who took you there. We are talking about adults, all of whom are currently in the custody of the State. Their lives are thus the responsibility of the State.

Without their medical reports, how can prisoners know whether they are being given the treatment recommended by the hospital?

The 16 intellectuals accused in the Bhima Koregaon case, lodged in two Mumbai jails, have been forced to live in this state of helpless ignorance ever since the pandemic began. So have their families, already tormented by the fear of Covid spreading in jail, a fear intensified by the lack of communication enforced by the jail authorities during the lockdown last year and again this year.

It took a High Court order last week to direct the jail authorities to give all prisoners their hospital reports. The Court also directed the jailers to allow all prisoners to call up their families from the hospital once their visit was done.

Such access to knowledge about one’s own health is part of the fundamental right to life guaranteed by the Constitution. Communication by prisoners with their families is part of that right, the Supreme Court has asserted. Yet, the Bhima Koregaon accused have had to go to court repeatedly for this basic right.

Also read: Elgar case: HC asks Maharashtra to move Stan Swamy to pvt hospital

Indeed, if 82-year-old poet Varavara Rao is still in possession of his faculties, 84-year-old Father Stan Swamy, who was healthy when he entered jail but is now a wreck, is now in a good hospital, and 54-year-old Prof Hany Babu is receiving the best possible treatment for his eyes which were infected in jail, they have the Bombay High Court to thank.s Here it must be mentioned that it is not the State, but Prof Babu’s family that is paying for his treatment. The High Court overruled the objection made by the National Investigation Agency (NIA)’s Additional Solicitor General, that allowing treatment in a private hospital could become a precedent, by stressing the family’s need for “psychological satisfaction, specially in these current times.”’

It was in the February 2021 order granting six months’ medical bail to Rao that the Bombay High Court gave a detailed interpretation of the right to life of prisoners, and its duty as a Constitutional court to uphold that right “breaching the walls of the prison.” The right to proper medical care, the right to have family looking after you, which played an essential part in bringing even someone as damaged by neglect in jail as Rao back from the brink, the right to live out one’s last years in dignity – all these elements went into the decision to grant bail on medical grounds.

Significantly, the Court made it a point to record its disapproval of the NIA’s argument that Rao had no right to relief on humanitarian grounds since the acts he was accused of were ``against human and State interest’’.

It’s also significant that only in front of this Bench, for the first time, Rao’s entire medical history since the start of his health problems, was examined. That comprehensive examination led the Bench to conclude that Rao’s life would be endangered not only if he were to be sent back to Taloja Jail, with its apology of a hospital, but also if he were to be kept in the prison ward of the government hospital as suggested by the Maharashtra government counsel.

It is to these ``subhuman conditions’’ to quote the High Court, that the 16 Bhima Koregaon accused have been condemned to spend their days, not just by the Centre-controlled NIA; not just by the Maharashtra government, whose counsel supports the NIA in court despite knowing the pathetic condition of jail hospitals; but also, unfortunately, by sections of the judiciary.

“The mere fact that she is suffering from some diseases cannot be a ground for interim bail’’ was an order passed by the NIA court in Prof Shoma Sen’s case. The same court ruled that the nature of the charges against Parkinson’s patient Stan Swamy ruled out the ``discretion’’ to grant medical bail. It was the High Court that last year refused medical bail to advocate Sudha Bharadwaj despite important omissions in her medical report.

These orders were passed even though the courts knew of Covid’s spread through jails; that some accused had already spent two years in jail; that there’s no possibility of the trial starting soon; and most crucially, that the charges against these accused are still to be proved.

Given that, one can only be thankful for the way the same judiciary has stood up for their rights.

(Jyoti Punwani is a senior journalist)

Disclaimer: The views expressed above are the authors’ own. They do not necessarily reflect the views of DH.