02, Mar 2021 | Sanchita Kadam
The grant of bail to 82-year-old Telugu Poet Varavara Rao on medical grounds has highlighted that a prisoner is not denuded of his fundamental rights, just because he has been remanded to custody through due procedure of law. It is relevant to examine how courts have upheld the rights of prisoners despite the crimes alleged against them, in their endeavour to safeguard important rights like right to life and liberty of prisoners.
Many a times courts rely upon the principle ‘bail is rule, jail is exception’ while granting bail but this is not ordinarily invoked in cases where allegations or charges against an accused are both “grave and severe.” Bail is either given on merits or to safeguard rights of the accused. While the former depends on the facts of each case, the latter becomes a germane part of bail jurisprudence and is important to explore.
The law as settled by many Supreme Court judgements is that even though the prisoner may be kept in custody through a procedure established by law, such a person is not denuded of the fundamental rights guaranteed under Part III of the Constitution. Even within the four walls of the prison, the right to life of a prisoner is guaranteed under Article 21 of the Constitution. This has been recognised in various judgments. This right has been interpreted by the highest court to have included the rights of prisoners to meet their family members, access to proper food and water, access to proper medical treatment, the right to intermingle with other prisoners, right to speedy trial and such other rights, so as to ensure that prisoners are not reduced to a mere animal existence or vegetable-like subsistence.
The court has upheld the rights of prisoners, even convicts in several instances. For instance, in T.V. Vatheeswaran v. State of Tamil Nadu 1983 AIR 361, the aspect of delay in execution of death sentence violating Article 21 of the Constitution was recognised and the death sentence of the convict was commuted to life imprisonment by the court. In Charles Sobhraj v. Supdt., Central Jail (1978) 4 SCC 104 the court discussed the penological goals of incarceration and what could be done for improving the quality of life of prisoners.
These instances are testimony to the fact that courts have time and again invoked their writ jurisdiction to safeguard prisoners’ rights and granted relief; one such relief is bail which may be granted to ensure that a prisoner’s right to life is not impinged by the actions of the State even if it is a result of due process of law and no matter how serious the charges against the accused.
Let us explore how courts have over the years considered basic rights of the accused over merits of the case or stringent provisions of special laws such as Narcotic Drugs and Psychotropic Substances (NDPS) Act, Unlawful Activities (prevention) Act (UAPA), Public Safety Act (PSA) and so on.
In Purnima Upadhyay v. State of Maharashtra & Ors. 2015 SCC Online Bom 5989, the court granted bail to GN Saibaba who is 90% disabled due to polio. Saibaba was charged under UAPA for allegedly being an active member of Republic Democratic Front which is a front of Communist Party of India (Maoist), a banned organization. The petitioner, a social activist, had contended that Saibaba needed to regularly attend physiotherapy sessions and pain management treatment in Delhi where his family resides and his daughter used to take care of him. The court was satisfied that if Saibaba is not granted bail, there could be a risk to his life and health. The court considered section 43D(5) of UAPA which specifies restrictions on granting bail and held that the provision cannot take away the constitutional remedy of an accused under Article 226 of the Constitution. The court considered this to be a rare and extraordinary case to exercise its discretionary writ jurisdiction under Article 226 and held that if it did not do so, it would be failing in its duty of protecting fundamental rights of Prof. Saibaba who was confined to a secluded cell and was not in a position to move the court on his own. The court granted him bail for 3 months. However, Saibaba is still precariously ill and in jail, presently.
The complete judgement may be read here
Kashmir Singh v. State of Punjab 6 AIR 1977 (SC) 2147. The appellant filed an appeal before Supreme Court against his conviction for murder and filed for bail pending disposal of appeal. While the same was denied the first time, he filed another application since the hearing of the appeal was taking a long time. The court held that the general practice is not to release on bail a person who has been sentenced to life imprisonment for murder.
It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice, said the court. The court introspected whether it would be fair to admit an appeal against conviction because there is prima facie case but due to paucity of time such appeal would take years and mandate that the person remains in jail even though there is a possibility that the person may be innocent. The court granted bail pending appeal while upholding, “It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and- sentence.”
Ramnik Singh v. Intelligence Officer, Directorate of Revenue Intelligence (2013) SCC OnLine SC 1276. The appellant was convicted by special court under section 21 of NDPS Act and filed an appeal before the High Court. He applied for bail during pendency of appeal which was denied and hence approached the Supreme Court. The appellant had already undergone more than half of the sentence imposed on him. It was submitted before the court that section 37 NDPS Act is an embargo on granting bail to an accused unless there are reasonable grounds for believing that he is not guilty of such offence. Yet, the court allowed the appeal as the possibility of appeal being taken up for hearing was remote and held that the appellant was entitled for suspension of sentence during pendency.
The complete judgement may be read here
Kum. Archana Manohar Galrani @ Sanjana Galrani v. State of Karnataka [Order dated December 11, 2020 passed in Cri. W.P. No.6829 of 2020]. The accused charged under NDPS had applied for bail on medical grounds whereby she complained of abdomen pain and that she had not gotten her menstrual period for 2 months which meant she needed consultation by gynaecologist and ultrasound abdomen. She also had a history of Bilateral Endometrial Cysts. The court granted her bail stating, “I do not think that Section 37 of NDPS Act is an embargo for exercising of jurisdiction under Section 439 Cr.P.C. for medical reasons”.
The complete judgement may be read here
The Varavara Rao bail judgement has only added to these earlier precedents upholding the prisoners’ right to speedy trial, right to health, right to medical treatment which surpass the stringent provisions of the special laws that make securing bail difficult for the accused. It goes without saying that the court’s writ jurisdiction is extra-ordinary and beyond the purview of the many embargoes that these draconian laws impose on liberty of an accused/detainee leaving them with some hope and sustained constitutional remedy before the courts.
Chhattisgarh HC: Mere association with terrorist organisation not offence under UAPA
In the case of Shailendra Bhadouriya & Anr vs. the State of Chhattisgarh (Criminal Appeal No. 706 of 2022), the High Court granted bail to two accused under UAPA and reasoned that mere association with a terrorist organisation, as a member or otherwise, would not be sufficient to attract the offence under Section 38 unless the association intends to further its activities.
The Court held, “Section 43D(5) of the UAPA provides that an accused of an offence punishable under the provisions of the UAPA shall not be on bail or his bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Further, Sub section (6) of Section 43D of the UAPA further provides that the restrictions on granting of bail specified in sub section (5) are in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.”
The Court relied on Supreme Court’s judgement in the case of Thwaha Fasal v. Union of India (2021 SCC OnLine SC 1000) wherein it was held that the restrictions imposed by sub-section (5) of Section 43D per se do not prevent a Constitutional Court from granting bail on the ground of violation of Part III of the Constitution.
A criminal appeal was filed under Section 21(4) of the National Investigation Agency Act, 2008 directed against the order passed by the Special Judge (NIA Act) by which the appellants application under Section 439 of the CrPC seeking bail for offences under Sections 149, 201 & 120B/34 of the IPC, Section 8 (2) (3) (5) of the Chhattisgarh Vishesh Jan Surksha Adhiniyam, 2005 and Sections 10,13,17,38 (1) (2), 40 and 22(A)(C) of the UAPA were rejected finding no merit.