Do prisoners of an advanced age be forced to live a subhuman existence behind bars? This often-raised jurisprudential and penological question has now been vividly and succinctly answered by the Division Bench of the Mumbai High Court through a path-breaking judgment delivered recently in Dr. P.V.Varavara Rao’s case. The question of granting temporary bail to an aged sick accused in Bhima Koregaon-Elgaar Parishad case was elaborately considered by the Court and answered in favour of the undertrial prisoner. 

This Judgment is an instance of an innovative jurisprudential exposition and offers a sigh of relief and a balancing solution in addressing the genuine claims of many aged undertrials languishing in jails across the country without bail, though suffering from acute ailments. Is not Fr. Stan Swami’s plea for bail liable to be considered in the light of the Judgment in Varavara Rao’s case, being an aged, sick and infirm prison inmate suffering from multiple health ailments?

Significance of the Verdict

The significance of the Judgment in Varavara Rao’s case is three-fold. First, it has pertinently recognized sickness, old age, infirmity, multiple health ailments as special circumstances weighing with the court’s discretionary jurisdiction in granting bail.  Second, it has equally recognized continued incarceration endangering life and health as the appropriate stage for release on bail, at least on temporary basis on the higher principle that an undertrial’s health cannot be ignored simply because he is accused of serious offences and bail application is rejected on merits. Third and most importantly, it has recognized the true scope and ambit of the writ jurisdiction of the constitutional courts by emphasizing that the said jurisdiction cannot be said to have been ousted merely because the application for bail has been rejected under Sec. 43D (5) of the UAPA on a finding that the accusations against the undertrial are to be prima facie true.

Continued custody incompatible with health conditions and endangering life constitute violation of the fundamental right under Article 21 of the Constitution.  In such circumstances, constitutional courts in exercise of writ jurisdiction can release an undertrial from custody on health grounds even if his bail application is pending on merits. 

The Court says: “The prisoners of advanced age like the undertrial, who is about 82 years old, and such other prisoners suffering from various health ailments induced by old age when put behind bars, certainly face the danger of their health conditions worsening and accelerating their journey towards the end of their life”. The Court further remarks: “The onset of old age and concomitant debilitating effect on the mental and physical conditions is an aspect which assumes significance in the context of keeping such old aged persons behind bars” (Para.50 of the Judgment). Certainly, this verdict cannot be construed in any manner as unjustifiably expanding the contours of the right to life, but, in reality, Court’s proclamation is only an articulation of the right to life under Article 21.

Melting down the rigours of UAPA

There can be no doubt that a person in the health status of the undertrial would face acceleration and intensification of ailments if he continues to remain in custody.  It is here that one should identify and locate the juridical reasoning for the judgment.  The Supreme Court in K. A. Najeeb case has recently held that the rigours of provisions pertaining to grant of bail found in special Statutes like the UAPA will melt down where there is no likelihood of the trial being completed within a reasonable time.  The Mumbai High Court in the judgment passed in Varavara Rao’s case has rested the conclusions on the ground that his continued incarceration was a violation of the right to life on account of his poor health condition as the medical report was a pointer to the fact that he is suffering from precarious health conditions affecting his life. 

The lenient consideration available to sick, infirm and disabled persons in the matter of bail contemplated under Sec.437(1)(i) & (ii) of Criminal Procedure Code remained unfettered by the stringent provisions of UAPA, particularly Sec. 43D (5) thereof, on health and medical grounds. On earlier occasions, the Gauhati High Court in Redaul Hussain Khan (2010) and the Mumbai High Court in Purnima Upadhyay (2015) held that an accused under UAPA could be granted bail on health grounds, despite rejection of the bail application on the touchstone of Sec. 43 D (5) of UAPA.

International Principles

International Systems of Jurisprudence recognizes the proposition that an accused deserved to be granted bail on health grounds if his continued incarceration was detrimental to his health status.  Judgments of the European Court of Human Rights in Holomiov (2007) and Hummatov (2008) cases recognize this cardinal principle.  

In Kum. Archana Manohar case (2020), the Karnataka High Court granted bail on health ground despite the fact that the petitioner was accused of offences under Narcotic Drugs and Psychotropic Substances Act which have stringent provisions with regard to grant of bail.  

The Judgments of the Supreme Court in Kashmir Singh (1977); Ramnik Singh (2013); and Dhiren Ghanshyam Mehta (2018) could be cited as precedents for grant of bail to the undertrial on the ground of precarious health condition. Thus, it is the power and duty of the constitutional courts to uphold the undertrial’s right to health under the right to life.

Global Perspectives

Article 5 of the Universal Declaration of Human Rights, 1948 mandates that no one shall be subjected to torture, inhuman or degrading treatment or punishment.  Article 7 of the International Covenant on Civil and Political Rights, 1976 also mandates the same.  The United Nations Standard of Minimum Rules for Treatment of Prisoners, particularly Rules 24 to 26, pertains to the right of a prisoner to enjoy the same standards of healthcare as are available to the community.  

Right to Life, a guaranteed right to the Prisoner 

A prisoner may be kept in custody in terms of procedure established by law.  However, such person is not denuded of the fundamental rights. The right to life of a prisoner stood guaranteed under Article 21 even within the four walls of the prisons.  This includes the right to meet family members, access to proper food and water, access to proper medical treatment, the right to intermingle, the right to speedy trial and such other myriad shades of the right to life and personal liberty, so as to ensure that prisoners are not reduced to mere animal existence or vegetable subsistence.  

The jurisprudence of over four decades evolved from the decisions in Sunil Batra, Bhuvan Mohan Patnaik, Vatheeswaran, Nilabati Behera, Charles Sobraj, Francis Coralie Mullin, Inhuman Conditions in 1382 Prisons, In re, cases have meaningfully acknowledged the same. The prime consideration of the constitutional courts in such situations should be to ensure that adequate and effective medical treatment necessary to keep the soul intact with the body is provided and as rightly observed by the Supreme Court in Arnab Goswami’s case (2020), constitutional courts cannot abdicate its responsibility when the question of fundamental rights is involved.  

The power of judicial review being an integral part of the basic structure of the constitution, no Act of Parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights. This thought-provoking observation of the Supreme Court made in The Committee for Protection of Democratic Rights, West Bengal (2010) can be valued as the precedent for the apt approach adopted in Varavara Rao’s case. 
 
A dynamic settlement

The legal distribution of public power consists ultimately in a dynamic settlement.   In the end, it is not a matter of what is, but of what ought to be. The journey to find it is a search for principle, not the unfolding of a rule book.

Judiciary, in Varavara Rao’s case, acknowledged that a vibrant constitutional synthesis exists between social justice and individual freedom and in that process, it elevated right to health of the prisoners to the status of fundamental right.  For other reasons also, it is the duty of national courts to verify that violations of human rights recognized by customary international law are not committed by the executive. 

The expanded meaning of right to life is wholly justified, for without health of a person being protected and his wellbeing looked after, it would be impossible for him to enjoy other fundamental rights in a positive manner. It is worth noticing that international principles in this regard have also gone a long way in sparking the enthusiasm of the Courts and spreading the waves of humanism, compassion and sympathy which are part of our rich composite culture and constitutional values. 

Judicial Review, the Cornerstone

Judicial review is the cornerstone of the democratic edifice raised in the Constitution.  Court should, no doubt, act as the protector and guarantor of fundamental rights and it must really play the role of ‘sentinel on the qui vive’. It is the solemn duty of the courts to protect fundamental rights ‘zealously and vigilantly’.

When law ends, tyranny begins, history whispers. Iron has never been the answer to the rights of men. Imprisonment will not spell farewell to fundamental rights although, by a realistic re-appraisal, court will refuse to recognize the full panoply of fundamental rights enjoyed by a free citizen.

As observed by Justice V. R. Krishna Iyer in Charles Sobraj case (1978), whenever fundamental rights are flouted or legislative protection ignored, to any prisoner’s prejudice, this Court’s writ will run, breaking through stone-walls and iron bars, to right the wrong and restore the rule of law. Then the parrot-cry of discipline will not deter, of security will not scare, of discretion will not dissuade, the judicial process. For if courts ‘cave in’ when great rights are gouged within the sound-proof, sight-proof precincts of prison houses, where, often, dissenters and minorities are caged, Bastilles, will be re-enacted.  

A passage from the Irish Poet Seamus Heaney’s poem ‘Human beings Suffer’ says: “No poem or play or song can fully right a wrong inflicted and endured. But then, Once in a lifetime The longed-for tidal wave of justice can rise up, And hope and history rhyme”. Judiciary has been forging new tools of social engineering for dispensing justice to the sick, infirm and those suffering from multiple health ailments through its progressive interpretation aimed to ‘wipe every tear from every eye’ without crossing the constitutional limits. It is these progressive interpretations that have made constitutional courts as people’s courts. 

Courts not ‘mute spectators’

Judicial power certainly is not absolute. Restrictions are there on its exercise.  However, any limitation on this must be only to preserve, protect and promote the right to constitutional remedies and not to abridge, abrogate or damage the same.  Courts must emerge as functional equivalents for the people. The Supreme Court itself has alerted that Judges must constantly remind themselves of the value of sentinel on the qui vive.  Sentinel must always guard the rights of the people and the province of rights should be determined through the watchful and alert guardians.  Courts must also feel that people are watching the constitutional guardians.   

Supreme Court of India has rightly sown the seeds of change by equitably balancing the rights of the undertrial prisoners and the interest of the society and the Mumbai High Court through its innovative process has dynamically settled it. Varavara Rao’s case is an explainer for such dynamic settlement of the rights of the sick, infirm and advanced age undertrial prisoners through the constitutional remedy of writ jurisdiction.

(DR. PAULY MATHEW MURICKEN is a prominent lawyer, an acclaimed writer and a distinguished academician based in Kochi)