In the first week of July, the local media in Assam reported that Akhil Gogoi, a Right to Information activist and leader of the Krishak Mukti Sangram Samiti, had fallen ill in prison. He showed symptoms of Covid-19, it was said.

His wife, Geetashree Tamuly, wrote in a Facebook post that she had learnt about his illness from news reports but knew no details about his condition – she had no news coming out of Guwahati Central Jail, where Gogoi is lodged, and no phone calls are allowed. Soon afterwards, it was reported that Bitu Sonowal and Dhajya Konwar, two other KMSS activists who are also in jail, were showing symptoms. They had a fever, cough and body ache.

With the prison authorities remaining tight-lipped, advocates for Gogoi and his aides filed a petition in a National Investigation Agency court, pleading that they be tested for Covid-19. The court ordered the jail authorities to ensure that they were tested and on July 9, it was reported that Sonowal and Konwar had Covid-19. The test results for Manas Konwar, another Gogoi aide, were still awaited at the time of writing.

There were conflicting reports about Gogoi’s test results. According to the results of a confirmatory test, released on the evening of July 9, he did not have Covid-19.

The question to be asked here is this: why did the prison authorities not take steps to conduct Covid-19 test on Akhil Gogoi and his aides on their own? Why did they act only after the direction of the NIA Court?

The right to healthcare

Gogoi was arrested by the National Investigation Agency under the Unlawful Activities (Prevention) Act in December 2019, soon after Assam was rocked by protests against the Citizenship Amendment Act.

Since then, he has been in judicial custody for more than 200 days. His three aides were also arrested by the National Investigation Agency soon afterwards and sent to judicial custody.

The treatment they received in custody goes against the right to healthcare that is guaranteed to prisoners. In successive cases, the Supreme Court has held it to be a key component of Article 21 of the Constitution which guarantees the right to life and liberty.

Other high courts have upheld this right as well. In Rasikbhai Ramsingh Rana and Etc vs State of Gujarat, the Gujarat High Court directed the jail authorities to take proper care of the ailing convicts. The petitioners, serving sentences in the Vadodara Central Jail, were suffering from serious ailments and deprived of proper treatment for want of jail escorts to take them to hospital. The high court expressed shock and called on the inspector general of prisons as well as the additional chief secretary to take action. Both of whom issued instructions that treatment be ensured and negligent officers be held personally liable.

In Pt Parmanand Katara vs Union Of India & Ors, the Supreme Court had also ruled that a government denying treatment to an injured person on the grounds that no beds were available amounted to a violation of “right to life” under Article 21. The court also held that Article 21 imposes an obligation on the state to provide medical assistance to injured persons as the preservation of human life is of paramount importance.

Yet the local media reported that even after Sonowal and Konwar tested Coivd-19 positive, they were taken from hospital to hospital on July 8 and made to wait on the rooftop of one government hospital before finally being admitted to Gauhati Medical College Hospital.

Duty to preserve life

Guwahati’s prison and public health authorities failed on several counts. First, when the prison authorities at Guwahati Central Jail refused to conduct tests even though Gogoi and other activists had shown symptoms of Covid-19 for days. Second, when Sonowal and Konwar were refused treatment at hospitals.

The right to medical treatment is a basic human right, be it a free person or a prisoner. Any failure to ensure treatment is a violation of Article 21, under which the state has the duty to preserve life.

An independent inquiry on the treatment meted out to Gogoi and his co-prisoner should be conducted. Negligent officials should be held liable. Meanwhile, proper medical treatment should be provided to Akhil Gogoi and his aides, who are in the custody of the state.

Vikram Rajkhowa is an advocate at the Gauhati High Court.