in the midst of the deadliest pandemic in a hundred years, Indian investigative agencies and police have continued to oppose bail for political prisoners across the country, whether the Bhima Koregaon activists, or anti-CAA protesters.
While this has been unsurprising, given the political nature of these cases, what is extremely troubling is the opposition to bail even for the elderly, those with medical conditions, and pregnant women, despite the increased risk that COVID-19 poses to them.
The case of poet and social activist Varavara Rao is perhaps the best example of the consequences of this policy.
Accused under nebulous charges of being involved with Maoists, 79-year-old Rao has been in jail for over two years now, not as a convict, but as an undertrial. He has been unwell for some time, even requiring hospitalisation for breathing difficulties some weeks ago.
Given his age and health problems, Rao was extremely vulnerable to the coronavirus, and that’s before factoring in the added health risks that often exist in jail conditions.
Despite this, the courts refused to grant him interim bail, with the most recent order coming from the special NIA court on 26 June. The request from him, and many other such prisoners, like Anand Teltumbde, has been simple: due to our vulnerability, due to the increased risk of COVID-19 in jail conditions, grant us interim bail till the crisis abates.
A simple, humanitarian request. Given Rao's age, and the current situation in the country, granting this request would hardly lead to him running away and absconding from justice in some Naxal forest hideout. Yet the request was denied.
As his health continued to get worse through June and early July from hallucinations to disorientation, his family raised concerns with the jail authorities. He was not moved to a hospital, and instead another political prisoner who is also over 60 years of age, co-accused Vernon Gonsalves, was told to look after him.
On Thursday, 16 July, three days after he was finally taken to hospital, Rao tested positive for COVID-19.
WHO IS RESPONSIBLE FOR THIS?
It is easy to blame the police and the government and the jail authorities for such a consequence.
However, they are not the only ones at fault. A large portion of the blame for the fact that we have elderly, infirm, unwell, vulnerable people who have not been convicted of any offence, in jail across the country at this time, rests with the courts of India.
And not just the lower courts which have rejected the bail applications of such accused persons – criminal law experts like Rebecca John and Mihir Desai trace the responsibility all the way to the Supreme Court.
THE SUPREME COURT’S ORDER FOR DECONGESTION OF JAILS
It wasn’t supposed to be this way.
On 16 March, in a widely appreciated move, a bench of the Supreme Court headed by Chief Justice SA Bobde took suo motu cognisance of the risk of the spread of COVID-19 in jails across the country because of overcrowding.
After reviewing reports from the States and Union Territories, the judges found that although steps for isolation, quarantine and treatment of possible coronavirus patients had been taken in many of them, the problem of overcrowding continued.
So a week later, on 23 March, the apex court passed an order directing the setting up of High Powered Committees (HPCs) in each State/UT, to determine which classes of prisoners could be released on parole (if convicts) or interim bail (if undertrials).
Which would have been a very reasonable order but for one misstep.
After giving an example of how the States/UTs could consider releasing prisoners whose offences carry punishment of 7 years or less, CJI Bobde’s order says:
"“It is made clear that we leave it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate.” (emphasis added)"
While ostensibly allowing the HPCs to decide who could be released temporarily in light of the pandemic, the Supreme Court basically said that the basis for doing so should be the kind of case against them – not their vulnerability to the disease.
IGNORING VULNERABILITY TO COVID-19
“It appears to me that this classification is fundamentally wrong, because it has to be about vulnerability,” says senior advocate Rebecca John, one of India’s most reputed criminal law experts.
“Men and women of the age group of Varavara Rao – during any pandemic and this one in particular, their vulnerability is extreme. And jails are places where it spreads; we’ve seen it in Assam, Delhi, Bombay and Kashmir,” she explains.
However, following the Supreme Court’s lead, the HPCs of nearly all States decided to make the seven-year punishment threshold the basis for deciding which prisoners could be let out on bail or parole during the pandemic, rather than focusing on vulnerability.
What this means is that those accused of offences under special laws like the UAPA, National Security Act, J&K’s Public Safety Act, are automatically excluded from getting bail, regardless of their likelihood to abscond, or, crucially, their age or medical condition – because the maximum sentence for offences under these laws is generally over seven years.
HPCs in some places like Delhi have even restricted bail/parole for other connected criteria, like whether the Crime Branch or another special agency is investigating the case, or if the case involves a “serious” offence like money laundering.
“But what is the connection between the pandemic and who the case is being investigated by? Or which Act the case is under, how does it matter?”, asks John.
"“The classification should be based solely on vulnerability and not these artificial classifications you make about crime. It is the circumstances of the offender that are important, not the circumstances of the crime. And if the offender is in a vulnerable category during this pandemic, then surely they have to receive the topmost consideration from the courts.“" - Rebecca John, senior advocate
Senior advocate Mihir Desai, a longstanding human rights defender in Bombay who has fought several UAPA cases, including for some of the Bhima Koregaon accused, agrees with John, that the classification of who could get bail or not, was not correct.
"“You can’t make these kind of distinctions if you want to decongest jails to deal with COVID. If they are above 60, with co-morbidities, they should be given first priority. Yes, if there is a high chance that they will abscond, they have a past record of that, you can hesitate to grant bail, but otherwise, in cases like Rao’s where it’s not a risk, it does not make sense.”" - Mihir Desai, senior advocate
Interestingly, Desai points out that while the Maharashtra HPC had initially said those accused under UAPA and other such special laws should not be given bail, at a second meeting, they said wherever the accused was old, had co-morbidities, they should be considered on a case to case basis.
Despite this, in Varavara Rao’s case, the special NIA court refused to grant him bail. Lower courts in other parts of the country can still claim that their hands are tied by the decisions of the HPCs, the Supreme Court order and the general rules against bail under the UAPA and other special laws, but in States like Maharashtra where they could have granted bail, the failure to do so was a serious error, according to Desai.
A DEATH WARRANT, WITHOUT CONVICTION OR DEATH SENTENCE
Why is all of this so problematic, you might ask, given that the people not getting bail are accused of serious crimes, and when it comes to those not being given parole, have already been convicted of serious crimes?
The thing is, that’s not how a justice system works.
When it comes to undertrials, it’s about the presumption of innocence – you cannot be punished until proven guilty. “If the presumption of innocence is to have any meaning, you can’t afford to be effectively signing death warrants for aged, unwell accused,” argues Abhinav Sekhri, a criminal lawyer and scholar based in Delhi.
"“But that’s what you’re doing when you are making people over the age of 65, who you know are at risk, stay in prison. That approach has condemned a person like Varavara Rao now, and for what? He’s accused under the UAPA? Forget questions of constitutional principle, this is against human decency.”" - Abhinav Sekhri, advocate
While this may be easier to appreciate when it comes to those who have not yet been convicted of a crime, Sekhri points out that the fundamental flaws with the approach also apply to those who have been convicted and are serving time.
Even if someone has been convicted of a crime, this doesn’t mean they have been sentenced to die – and even if they have been sentenced to die, this is not how that’s supposed to happen under the criminal justice system. This is something Rebecca John also notes, and says that this is why we shouldn’t only look at this through the lens of a Varavara Rao or a Safoora Zargar.
“It’s not about whether we sympathise with the person involved,” John explains. “The pandemic doesn’t discriminate, and so we cannot discriminate against even convicts, because there is a legal process dealing with them, and it doesn’t involve letting vulnerable people die from a disease.”
She gives the example of Mahender Yadav, a 70 year man convicted for his role in the 1984 anti-Sikh pogrom, who was refused interim bail by the Supreme Court even after getting COVID-19, and who died a few days after that. Intuitively, one might recoil at the idea of him going free, even if for a while, but should a person sentenced to 10 years in prison die because he was exposed to the virus?
In Yadav’s case, the refusal of interim bail was not exactly the problem – he had been admitted to hospital and was being treated, and nobody can visit you if you have COVID, so bail at that stage wouldn’t really have helped.
The problem, however, is that he was exposed to the virus in a jail in the first place, rather than being on parole till the crisis abated.
Another point to be remembered is that it’s not just the inmates who suffer if the coronavirus spirals out of control in prisons (which is likely with at-risk inmates), it’s the prison staff and the police as well.
WHAT CAN THE COURTS DO TO REMEDY THIS?
The first step is for the lower courts to make sure that they conduct more detailed scrutiny of requests for interim bail or parole, Abhinav Sekhri suggests.
However, the discretion granted to the lower courts is limited, and they can’t change the criteria on which interim bail/parole is to be granted. Mihir Desai suggests that till such time as those criteria are amended by the HPCs – which they must do after a fresh review of the situation – the lower courts and high courts could ensure that other measures to help vulnerable inmates are taken.
This can include procedures to ensure that they receive good medical treatment as soon as they have a problem, rather than waiting for their condition to deteriorate terribly, like in Rao’s case.
High courts could also order compulsory testing for all inmates of jails. “This is the minimum you can do, given the lack of social distancing, the overcrowding,” Desai contends, adding “Jails like Taloja Jail (where Rao was imprisoned) had already had cases where people had died, so in light of the conditions, everyone in there should have been tested, regardless of the regular protocol regarding symptoms, etc.”
But to really address this fundamentally wrong approach, one has to also go back to the Supreme Court of India. After all, the high courts and the lower courts and even the HPCs, are all taking their cues from the apex court on this issue.
“I’m looking for more leadership from the Supreme Court here,” Rebecca John says. “They took up this case suo motu, and so they can look into this situation on their own once again. Because it’s hypocritical, that after the court takes up this issue of decongestion as a serious one, after it appoints HPCs to look into who can be released, that what we are basically being given is classifications for non-release.”
To fail to remedy this situation would be a moral failing, both John and Sekhri argue, because it would not be justice. John sums up the case for this perfectly, explaining:
"“Jurisprudence must be compassionate, more than anything else. That’s why the Supreme Court says that its doors are open even for death row prisoners, after all, because of compassion. This is what sets us apart from dictatorships and countries which don’t have a rule of law, because law is ultimately about compassion. And so the jurisprudence should be that we should not get influenced by the labelling of the crime or the allegations, it should give primacy to vulnerability. Is it really this hard to understand that people with critical vulnerabilities must be given special treatment in a time like this? What will happen to the mighty state if some of these people are released for short periods of time?”" -
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