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Must guard rights, says Bombay High Court, gives Varavara Rao bail

THE Bombay High Court Monday granted bail for six months to Varavara Rao, 82, held in the Elgar Parishad-Bhima Koregaon case, saying not doing so would amount to the court “abdicating” its “constitutional duty” as the “protector of human rights” and a violation of the fundamental right to health derived from the right to life in Article 21 of the Constitution.

Turning down an appeal by the NIA for a three-week stay on the operation of the order, the high court granted bail to the poet-activist on health grounds, on a personal bond of Rs 50,000. Rao, who has been under custody awaiting trial since August 2018, was told to surrender after completion of the bail period of six months, or apply for an extension depending upon his health condition, supported by medical reports. An appeal by Rao to be allowed to return to Hyderabad, however, was turned down.

Rao is currently in Nanavati Hospital, and would be discharged depending upon his condition.

In a 92-page order, a Division Bench of Justices S S Shinde and Manish Pitale said, “Taking any other view in the matter (apart from bail) would amount to diluting rights available to prisoners to claim relief on health grounds under Article 21 of the Constitution, particularly when material available on record indicates that continued incarceration of such persons would amount to endangering their life… We are of the opinion that this court, as 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 private super-speciality hospitals, upon intervention of courts, and such movements of the undertrial continue back and forth only because his bail application has been turned down on merits under Section 43D (5) of the Unlawful Activities (Prevention) Act.”

The Bench said they were granting the relief “with all humility at their command, keeping in mind human consideration, the well-recognised fundamental rights of the undertrial to have quality medical aid… inadequate facilities in the Taloja Jail hospital”. “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,” the court said.

The court observed that the hospital attached to the Taloja Central Prison and the jail ward of J J Hospital are “ill-equipped and inadequate” to take care of Rao’s health and sending him back to the prison would “certainly endanger his life” and would “run the risk of deterioration of his health to the point of no return”.

On Rao’s plea that he be allowed to return to his home in Hyderabad, the Bench said, “… although the material on record does show that the health condition of the undertrial is precarious, sending the undertrial back to where he belongs is fraught with the risk of his presence being used by those allegedly associated with him to seek to revive nefarious activities… therefore, it would be appropriate to impose such conditions as would be necessary for ensuring that the undertrial on his own or those allegedly associated with him do not take undue advantage of the situation, which would ultimately adversely affect the trial.”

Rao has to remain within the jurisdiction of the Special NIA Court, Mumbai, and be available for investigation. The Bench added, “However, he may apply for exemption from personal appearance.” He can do his fortnightly check-in with the nearest police station on WhatsApp call.

Rao has to hand over his passport as well as share with the High Court details regarding his address during the bail period, and his own contact number as well as of others staying with him. “The undertrial shall not try to establish communication with the co-accused or any other person involved directly or indirectly in similar activities or make any international call to any person indulging in similar activities as alleged against him through any mode of communication,” the court said. It also instructed Rao not to hold gatherings of visitors apart from near relatives.


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