On May 21, when the Bombay High Court took up for hearing a bail application from human rights activist Stan Swamy, the 84-year-old Jesuit priest made an emotional plea that he be allowed to go back to Ranchi, his home town, given his medical condition.

Accused in the case related to the violence in Bhima Koregaon village near Pune in 2018, Swamy was arrested by the National Investigation Agency in the midst of the Covid-19 pandemic in October 2020. Fifteen other activists have also been arrested in the case and have been charged under several sections of the Indian Penal Code and the Unlawful Activities (Prevention) Act for alleged association with the banned Communist Party of India (Maoist).

Apart from other ailments, Swamy suffers from Parkinson’s disease, a progressive neurological condition.

When it was suggested by the court that he should consider getting admitted to the government-run JJ hospital in Mumbai, Swamy said it would not make much of a difference. In his eight-month stint at the Taloja jail, the activist said his condition has deteriorated to a point that he could not even do basic tasks like eating and bathing by himself. “I don’t want to be hospitalised there. I would rather suffer, possibly die very shortly if this were to go on,” he told the court. “I would prefer this, than be admitted at the JJ Hospital. It is a very difficult moment for me.”

On Friday, the Bombay High Court allowed him to get admitted to a private hospital despite resistance to such a proposal from the NIA. On Sunday, the media reported that the activist tested Covid-19 positive.

While the High Court allowed him to move to a private hospital, his bail application has still not been decided and has been posted for hearing on June 7.

Swamy’s case is emblematic of a deep problem in bail jurisprudence in the country, especially in cases where laws like the UAPA have been invoked. In recent times, the courts have held that the express legal provision in the Act that prohibits bail if there is a prima facie case against the accused will not impede the courts from granting bail if fundamental rights are violated. But this position has not been applied consistently.

Bail and UAPA

Two important precedents have been set recently on the granting of bail for an accused charged under the UAPA. One came from the Supreme Court in a case from Kerala and one from the Bombay High Court in the bail application of Varavara Rao, an 81-year-old co-accused in the Bhima Koregaon case.

However, before looking into these precedents, an overview of the bail clause in the UAPA is necessary for context.

Way back in 1977, the Supreme Court ruled that bail is the norm and jail is the exception. However, this does not mean every person charged with a crime is entitled to a bail immediately.

In several cases, the Supreme Court has reiterated the guidelines a court should follow when awarding bail. This includes an analysis of the nature and gravity of the charge and the severity of punishment if convicted; danger of the accused absconding or fleeing in case he is released on bail; character, means, position and standing of the accused; likelihood of repeating the offence; tampering of evidence; and the danger of justice being thwarted if released.

However, these guidelines usually apply to crimes under the Indian Penal Code. Under special criminal laws such as the UAPA, which deal with cases presumed to be of grave nature like acts of terror, there is a higher standard for obtaining bail.

In the context of the UAPA, Section 43 D (5) makes it clear that if in the opinion of the court, there are reasonable grounds from the case diary or chargesheet to believe that the accusation against a person is prima facie true, the accused shall not be released on bail.

The problem with the prima facie rule is that it does not allow the judge to analyse the evidence submitted in detail. Such a restriction has been put in place for the simple reason that an indepth analysis of evidence even before the trial has begun could cause prejudice to the accused and impact the trial.

Unfortunately, in many cases that involve serious offences, courts tend to agree on the prima facie truth of the accusations made by the police, making bail difficult. But there have been exceptions to the prima facie rule under special criminal laws such as the UAPA, as evidenced from two recent judgements in the Supreme Court and the Bombay High Court.

Exceptions for bail under UAPA

In February, a two-judge bench of the Supreme Court led by Justice NV Ramana, who is now the chief justice, upheld a Kerala High Court judgement that granted bail to KA Najeeb, who had been booked under the UAPA in a 2010 case.

Najeeb, along with several other accused who allegedly belonged to the Popular Front of India, was charged with the crime of chopping off a college professor’s palm as revenge for alleged blasphemy.

The case was peculiar as several accused had already been acquitted in the case while others were convicted. In Najeeb’s case, he had initially absconded for a few years before he was arrested in 2014 and then spent over five years in prison awaiting trial before the Kerala High Court gave him bail.

Though the Centre appealed in the Supreme Court against the order and argued that the Kerala High Court had not taken Section 43D (5) of the UAPA into consideration when ruling on the bail application, the Supreme Court decided to uphold the bail order.

Why is this relevant to the Bhima Koregaon case?

The reasoning behind the Supreme Court order bears great significance. Even though the court acknowledged that under normal circumstances, the bail application of an accused charged under UAPA will have to be dismissed in the event of the accusations being prima facie true, it said that this does not take away the power of the constitutional court from coming to the accused’s rescue when his fundamental rights are undermined.

While in Najeeb’s case the violation was that he had already spent over five years in prison and it was the case of the prosecution itself that the trial will take more time to conclude. Thus, he was given the benefit of the inordinate delay in the conclusion of the trial.

But since the court has specifically said violation of fundamental rights would be a standard for awarding bail even in cases where the law does not allow bail once the prima facie truth is established, this would mean health of the accused, which directly falls under right to life covered by Article 21 of the Constitution, would very much be a basis for deciding bails.

Even otherwise, several accused in the Bhima Koregaon case, like lawyer and activist Sudha Bharadwaj, have already spent over a 1,000 days in prison with no sign of the trial starting any time soon. The NIA is on record in the Bombay High Court stating that the case would need at least 200 witnesses examined, and there was not even a commitment that the trial, once it commences, would be conducted on a day-to-day basis.

In fact, when she moved the Supreme Court last year seeking bail on medical grounds, the court actually said she had a great case on merits rather than on health grounds. However, her lawyers have held back from moving a bail application on merits in the Supreme Court as two other accused in the case, Rona Wilson and Shoma Sen, have moved the Bombay High Court challenging the cases itself based on forensic reports by independent organisations that evidence was planted on the electronic devices of the accused.

A judicial precedent that is more relevant to Stan Swamy’s is the Bombay High Court’s decision on February 22 to award bail to Varavara Rao, who is a co-accused in the Bhima Koregaon case. Varavara Rao’s wife had moved the court citing his deteriorating health and the government’s failure to provide him proper treatment. He had also contracted Covid-19 in jail.

In answering the question of whether a High Court could exercise its writ jurisdiction and release an accused booked under UAPA on bail on health grounds, the court said that even when a person is in prison, he is very much entitled to his fundamental rights, which would include the right to life, of which health is an vital aspect. The court added that in such cases, a balance could be struck between the State’s interest in prosecuting the accused and his fundamental right to health by setting some conditions. In Rao’s case, the court had asked him not to leave Mumbai even though he hails from Telangana.

In fact, the court categorically went on to state that the powers of the court under Article 226 of the Constitution, which allows a High Court to pass any order for the enforcement of fundamental rights, cannot be said to have been ousted “merely because the application for grant of bail has been rejected under Section 43D(5) of the UAPA”.

Varavara Rao's daughter Pavana (left) and wife Hemalatha protested in Hyderabad in May 2020, days before he was released on medical bail.

Lack of uniformity

But despite the existence of such precedence, bail for those charged under UAPA, even on medical grounds, remains difficult, as seen in the Stan Swamy case.

Before he approached the Bombay High Court, Swamy had made two bail applications before the NIA court. The first was moved on health grounds in October last year and the second on both merits and health grounds in February this year. Both were rejected.

In its order on the February application, the NIA court rejected the health grounds by citing a Supreme Court precedent. It said the collective interest of the community outweighs Swamy’s right to liberty as the charges against him are very serious, and old age and sickness does not change the outcome in his favour. What is noteworthy, though, is that the Supreme Court precedent cited by the NIA court had nothing to do with bail on health grounds.

Legal experts say that one of the problems with medical bail jurisprudence is the lack of uniformity in application of standards and the high discretionary element in such cases, even if the crime is merely under the Indian Penal Code.

Former Madras High Court judge K Chandru said a High Court or the Supreme Court are not entirely bound by the limitations of the Code of Criminal Procedure, with their writ jurisdiction giving them wide powers.

In such a scenario, the main object of the constitutional courts should be the protection of fundamental rights, of which health is a vital part. “As a judge, for me it is simple. If the matter involves right to life under Article 21, bail should be granted immediately,” Chandru said.

The former judge added that in cases like Swamy’s, it was not just about immediate medical attention but long-term care. “When people have serious ailments and they are old, they will need continuous care,” he said. This, Chandru said, was important as courts seem to think merely sending a person to the hospital will solve the problem, as has been done in Swamy’s case.

Another former High Court judge, on condition of anonymity, said while courts acknowledge that health is a crucial ground for bail, it is often left to the particular judge’s discretion like it is for bail on other grounds. “Many times, we see that trial judges do not follow the precedent set by the High Court or the Supreme Court,” the former judge said.

He cited the Varavara Rao case itself, stating that despite health reports showing illness that required intervention, the trial court had not accepted the application for bail since the prosecution got a certificate from a hospital that he was fit to be shifted back to jail.

However, the former judge said setting a common standard for medical bail and removing the discretionary element would not be easy given how health grounds are abused by powerful people to stay out of jail. “There have been cases when medical reports have been manufactured to help the accused stay out of jail,” the judge said. “But once the court realises that the case is genuine, there should be no other consideration but the health of the accused and bail should be granted.”