Bail as right: On bail to Varavara Rao

Laws, however stringent, cannot be allowed to trump basic rights

In granting bail for six months to poet Varavara Rao in the Bhima Koregaon case on medical grounds, the Bombay High Court has affirmed the principle that even the stringent provisions of an anti-terrorism law are not invincible before a prisoner’s constitutional rights. Jailed under the draconian Unlawful Activities (Prevention) Act, Mr. Rao, 82, suffered from a host of ailments, and his condition was deteriorating until he was treated at the Nanavati Hospital on the intervention of the National Human Rights Commission. The court overruled the National Investigation Agency’s objection that bail should not be granted on medical grounds once an undertrial prisoner’s bail application was rejected on merits under UAPA, as long as access to treatment in a government hospital was available. The NIA had argued that in view of the statutory bar on granting bail under Section 43D(5) of the UAPA if the accusation against a person is prima facie true, any bail given on health grounds would open up the floodgates to similar petitions. The court looked at Mr. Rao’s plight from the perspective of his right to life under Article 21. It ruled that “a Constitutional Court cannot be a mute spectator to the undertrial being sent to prison and then to government hospitals, where his health deteriorates further, to be ultimately shifted to the Private Superspeciality Hospitals, upon intervention of courts...”. This could not continue back and forth only because his bail application has been turned down on merits, it said.

Bail is routinely denied in most cases under UAPA. It became a watertight embargo since the Supreme Court in 2019 gave a ruling that made it nearly impossible for anyone arrested under UAPA to be released on bail, unless the accused could demonstrate that the charges against them were prima facie untrue. However, a few recent judicial decisions have sought to carve out exceptions. The Supreme Court laid down recently that prolonged incarceration without any possibility of an early completion of trial could be a ground for granting bail. In Mr. Rao’s case too, the High Court has noted that charges are yet to be framed, and 200 witnesses have to be examined once the trial begins. The temporary release of the octogenarian poet ought to turn public attention on the others incarcerated for a long time in the Bhima Koregaon case, in which lawyers and activists have been accused of plotting with Maoists to overthrow the government. Recent revelations that some of the electronic evidence in the case may have been planted remotely by a piece of malware have dented the prosecution’s claims about the existence of a plot. It is unfortunate that there is no sign of either an expeditious trial or any possibility of release of those arrested after a case of alleged provocative speeches made during a Dalit commemoration event held on December 31, 2017 in Pune, was transformed by the police into a sinister Maoist plot.

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