When Jail, Not Bail, Rules in a Pandemic

The pandemic is worse showcased in the treatment meted to undertrials in our prisons. Despite guidelines directing granting of bail to undertrials with medical conditions and seniority in age, the courts have refused to grant bail to the accused in Bhima Koregaon activists. The authors here note the glaring blindness in the orders of the court denying bail, the dangers to Mr Varavara Rao and Ms Shoma Sen’s health in prison, and the blatant disregard for established principles of law.

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Imagine for one moment, what it would be like to be kept in jail for years, deprived of your family, your freedom of speech, your liberty of movement and your right to work, merely on suspicion and conjecture. A terrifying concept for most of us, but a grim reality for the prominent human rights advocates (who include lawyers, professors, research fellows, a poet, and an editor), 5 of whom were arrested on 6th June 2018 and 4 of whom on 28th August 2018, in what is now known as the Bhima Koregaon (the BK) case. On 14th April 2020, two other eminent human rights defenders were arrested by the National Investigative Agency (the NIA) in the same matter. 

How the Bhima Koregaon case got its name

On December 31, 2017, a coalition of about 250 organisations for the Bhima Koregaon Shaurya Din Prerna Abhiyan organized the Elgaar Parishad meeting. It was convened by Retd. Supreme Court Justice P.B. Sawant and Retd Bombay High Court Justice Kolse Patil at Shaniwarvada, Pune City, around 30 kms from Bhima Koregaon. The next day, on Jan 1, 2018, lakhs of people gathered at the Bhima Koregaon Memorial to commemorate the bicentennial of Bhima Koregaon battle of 1818 in which Dalit soldiers were pitted against the Peshwas. However, reportedly, saffron flag wielding groups attacked and injured people and vehicles carrying blue flags. 

On January 2 2018, an FIR was lodged against Sambhaji Bhide and Milind Ekbote as instigators of the violence at Bhima Koregaon but no coercive action was taken against them by the police. 

On January 8, 2018, FIR No 4 was lodged against Sudhir Dhawale and some others, for speeches and songs at the Elgaar Parishad meeting, at Vishrambaug Police Stn, Pune City, under the I.P.C. Sections 153-A, 505(1)(b), 117 and 34. Notably,  the 10 other persons currently being tried in the Bhima Koregaon case were not named as Accused in FIR No. 4 of 2018. 

On May 17, 2018 Rona Wilson, Adv.Surendra Gadling, Prof Shoma Sen, Mahesh Raut were added as additional Accused along with Sections 13, 16, 17, 18, 18-B, 20, 38, 39, 40 of the Unlawful Activities (Prevention) Act (“UAPA”) to FIR No. 4 of 2018. They were arrested on 6th June 2018.

On August 28, 2018, in CR 4 of 2018, Vernon Gonsalves, Arun Ferreira, Sudha Bhardwaj were arrested in Faridabad and V.V. Rao in Hyderabad. The next day on August 29, 2018, the Supreme Court in Romila Thapar &Ors vs Union of India W.P. (Cri) No. 260/2018 ordered house arrest of the above 9 accused for a period of 8 weeks. Thereafter they were lodged in Yerwada Jail, Pune, in custody of the Addl Sessions Judge, Pune. In February earlier this year, the case was transferred to the Special Court at Mumbai, under the NIA Act. 

On April 14 this year, in the midst of the pandemic, Mr Gautam Navlakha and Prof Anand Teltumbde, who are both in their 70s with co-morbid health conditions, were forced to surrender to the NIA, after the Supreme Court declined to extend protection from arrest orders. 

At present, the nine male detenus are lodged in Taloja Jail, outside Mumbai, while the 2 women detenus are lodged at Byculla Jail, in Mumbai. 

The Pandemic and the imperative to decongest prisons

The pandemic caused by SARS-CoV-2 fuelled concern amongst civil society members for the health and safety of prisoners, who are at high risk, due to overcrowding and unsanitary conditions in jail. Pursuant to Supreme Court directions, High Powered Committees (HPC) were set up. The concerned HPC for Maharashtra vide its notification dated May 11 made recommendations for temporary release of prisoners including “those above 60 years age are concerned and/or those with underlying medical conditions which puts them at higher risk for severe illnesses from COVID-19..”.

The temporary bail applications of Mr Varavara Rao and Ms Shoma Sen based on the above HPC recommendation were filed on May 15. Both Applications emphasised the advanced ages and multiple health ailments of the applicants, which put them at higher risk of contracting COVID-19.  

On five consecutive dates in April-May 2020, the defence lawyers were constrained to press for the health reports of Mr Rao since he was ill and in the Jail hospital. Court Directions made to the Jail Superintendent were not complied with and Mr Rao’s reports not produced. On May 28, Adv Nilesh Ukey was directed by the Hon’ble Court to personally serve notice on the Superintendent, Taloja Central Jail for submission of Mr Rao’s health reports on June 2. The report of Ms Shoma Sen was also not produced in spite of directions to the Jail Superintendent, Byculla Jail. 

On the evening of May 27, Mr Rao, unknown  to his lawyers and family, was rushed from Taloja Jail to J.J. Hospital, Mumbai, as he had lost consciousness in the Jail hospital. This fact was not communicated by the NIA, to the defence lawyers in Court on May 28. Mr Rao’s family in Hyderabad were informed on the night of 28th May by the Pune Police, and not by the NIA. Mr Rao was extremely weak and disoriented during his hospital stay. 

On June 2, a medical Report from J. J. Hospital was filed in Court to the effect that Mr Rao had been treated, was stable, discharged on June 1  and returned to the Jail. The medical report from the Superintendent of Taloja Jail was not filed. 

A defence lawyer, in a letter addressed to the NIA, recorded the lapses in communication regarding Mr Rao’s hospital admission.  Valuable hearing time of the Bail applications was lost as the NIA filed a complaint, seeking chastisement of the defence lawyers on June 5.

On June 19, the Bail Application of Mr Rao was fully argued by his defence lawyers seeking his temporary release on humanitarian grounds during the pandemic. The prosecution sought time for its counter arguments and the matter was adjourned to June 26.

On June 26,  the bail application of Ms Sen was argued by her lawyers, seeking her release based on her failing health and based on the recommendation of the HPC, amongst other grounds. 

The prosecution’s arguments can be summarised as follows:- i) that the UAPA did not support bail, (ii) previous bail applications had been rejected by the former Court on the basis that a prima facie case had been made out against the Accused (iii) there was no change in circumstances (iv) that compelling medical  grounds for release was not made out. The stand alone HPC recommendation for temporary release of prisoners of advanced age and co-morbidities, was disregarded by the prosecution. 

On June 25, Ms Romila Thapar and her co-Petitioners who had sought a Supreme Court monitored probe into the Bhima Koregaon case on August 29, 2018, wrote to the Chief Minister of Maharashtra, seeking house arrest of the Bhima Koregaon case Accused, during the pandemic. Earlier, 500 artistes and intellectuals submitted a memorandum, and 14 Members of Parliament a petition, to the State and to the Central governments, for the temporary release of Mr Rao and the others arrested in the BK case, during the pandemic.

The Court Outcome in the Bail Applications 

By an Order on June 26, the Hon’ble Special Court Judge rejected the Bail applications of Mr Rao and Ms Sen based on all the objections and arguments put forth by the prosecution.  

The Order failed to take into consideration the defence plea for bail, based on the HPC recommendation for temporary release of senior citizens with co-morbidities, during the pandemic. The daily risk of exposure to the deadly virus for persons in fragile health, was ignored.  Ironically, while citing the bail provisions built in Sec 43D(5) of the UAPA, the Court lost sight of the fact that rejection of Bail by a predecessor Judge was irrelevant to his decision, as Sec 43(D)(5) mandates independent scrutiny of the material by the Judge deciding the new Bail Application.  

Conclusion 

For Justice to prevail, the exhortation of Justice Krishna Iyer that “Bail is the Rule and Jail the exception” must remain a guiding light for all stakeholders in the criminal justice system. 

Views expressed are personal.