Why personal liberty of Varavara Rao is not protected by Supreme Court?

Personal liberty of scores of people is ignored by the police and governments, who indiscriminately violate it without any regard for constitutional guarantee. Sometimes High Courts also do not come to rescue of the fundamental rights. Then only recourse was the right to constitutional remedies- Article 32 of Indian Constitution, which gives straight access to apex court as a matter of right to every person, not just to a citizen.

Now the Chief Justice of India says SC wants to discourage petitions under Article 32 and asking HCs to exercise their power to protect the rights. It is difficult to get convinced with this new idea with fresh memory of extra ordinary Arnab’s interim bail granted urgently by the Supreme Court.

Why Arnab’s petition gets listed within hours?

Can there be a physical arrest of persons on suspicion in any two-year-old case, where allegations are also not formed with required clarity, FIR did not mention those names? Why their bail petitions in similar cases are repeatedly rejected and in one case it was granted? In Bhima Koregaon case, some were arrested though their names did not figure in FIR, and some were arrested because their names were mentioned. No one knows which evidence was so convincing that justifies immediate arrest and for two years they remain in jail without bail? Why within hours Arnab’s petition gets listed, brought on Bench, reaches on scheduled day, many hours are spared for arguments and with profound statements of rule of law, the personal liberty is upheld. A right-wing journalist is released on bail where two persons committed suicide which is allegedly abetted by non-payment of dues. The death by suicide is incontrovertible fact, and non-payment is undisputedly born by record. Allegation of abetment is clearly part of suicide note and FIR. Though there are no such corroborative pieces of evidences, a journalist, poet and teacher Varavara Rao and others are languishing in jail while courts refuse to see their ill-health, advanced age, need for medical help, continued incarceration, denial of visits to close relatives, lack of evidence etc at least for bail.

Varavara Rao was not released from jail though he was ailing

Krishnadas Rajagopal, the law reporter of the Hindu, reported that the Supreme Court on October 29, 2020 did not order Varavara Rao’s immediate release from jail though he was ailing, and other health conditions warrant release. However Supreme Court voiced its genuine concern over a month-long delay witnessed in the Bombay High Court to hear urgent pleas for his liberty and medical treatment. Justice UU Lalit heading a three judge Bench said, “the obstacle bothering us is that the matter is not being heard”. The apex court noticed that though it is an urgent case to consider question of personal liberty, Bombay High Court did not hear since September 17.  Then the Supreme Court has requested the Chief Justice of the Bombay High Court to list the case for hearing at the earliest. The SC should have itself honoured the personal liberty of 81-year-old poet-activist-journalist like it has respected Arnab’s liberty. Can SC stop people from observing that SC preferred liberty of pro-right-wing-journalist who was accused in a criminal case, to a left-political-ideologist against whom series of false cases being slapped throughout his lifetime? It is credibility of SC as a protector of personal liberty of ordinary people that is as important as liberty of citizens.

People’s right

People have a right to compare between two glaring and obvious examples of justice and injustice especially after a pro-ruling party journalist gets quick justice while several others languish in false cases. Poet-Journalist-Left Activist Varavara Rao, 81, has completed two years of incarceration today (Tuesday, 17 November 2020), without any valid or solid evidence to show his involvement, while journalists like Arnab are free from custody for charge of abetment to suicide by non-payment of dues.

An editor of monthly literary magazine Srijana, Varavara Rao was accused of conspiracies against the government allegedly trying to overthrow the AP government. He spent years in trial and pre-trial custody but in no case the government could prove any allegation against him so far. A charge, conspiracy to kill policemen, continued for 17 years also ended in acquittal. He is incarcerated for his political ideology, not for any proven criminality. Varavara Rao is a responsible writer who wrote during his prison days, Sahacharulu (1990) in the form of a prison diary. This was later published in English as Captive Imagination (2010). He also translated into Telugu, Detained (1981), the prison diary of prisoner who was similarly incarcerated, the Kenyan stalwart Ngugi waThiong’o, as well as Thiong’o’s novel Devil on the Cross (1980).

Pune police filed an FIR alleging that on the eve of 200^th anniversary of the battle of Bhima Koregaon, Elgar Parishad was organized and the speeches of leftist activists and underground Naxalite group leaders on December 31, 2017 were partially responsible for inciting the violence that occurred next day on January 1, 2018. In August 2018 Varavara Rao, whose name is not mentioned in FIR, was arrested suspecting his involvement in Bhima Koregaon incidents. it was called home arrest.  Rona Wilson, Arun Ferreira, Sudha Bharadwaj, Gautam Navlaka and Anand Teltumbde were also arrested in this case. 

Varavara’s petitions

Varavara Rao filed a petition before Telangana and Andhra Pradesh High Court, seeking quash of the Transit Remand Warrant issued by the Chief Metropolitan Magistrate, Hyderabad on August 28 facilitating his arrest. It was contended that the warrant was illegal and did not follow the proper legal procedures. Justice B Siva Sankara Rao admitted the petition on November 6, suspended the Transit Remand Warrant till November 17, 2018. Though in his earlier oral and written orders the judge specifically said the matter on quash would be heard on November 26 only, Journalist N. Venugopal, brother in law of Varavara Rao, wrote that the Judge suddenly changed his mind and without any arguments on the quash petition dismissed it. The Judge referred to medical report and found him fit for transit, though that was not a matter for adjudication before him. The petition was dismissed saying there was nothing in petition for adjudication. This order paved way to arrest and shifting from house arrest and remand him in Pune Jail.

Covid-19 attacked

Varavara’s health deteriorated during detention in Taloja Jail in Maharashtra and he was admitted to J.J Hospital in Mumbai. A special court ordered a report on his health but bail was not granted. In June 2020, bail was sought on the grounds that he was highly vulnerable to Covid-19, and following a government recommendation that elderly inmates and those with co-morbidities should be released from jail in light of the Covid-19 pandemic, but was denied again.  His application for bail was supported by fourteen Members of Parliament, who wrote a letter to Maharashtra Chief Minister Uddhav Thackeray, raising concerns about his health as well as jail conditions during the Covid-19 pandemic in India.  It was also supported by two former Central Information Commissioners of India, who raised doubts about the alleged conspiracy case, and called on the National Investigation Agency to share information with the Mumbai Police regarding the case.

On 16 July, he was tested positive for Covid-19 in J.J Hospital in Mumbai. Following reports that Rao had been injured again while in the care of the hospital, resulting in a head injury, the National Human Rights Commission ordered that he be moved to a private facility for medical treatment. Then he was shifted to Nanavati Hospital in Mumbai. The National Investigation Agency opposed Rao’s plea for bail in court, arguing that he was trying to “take undue advantage” of the Covid-19 pandemic, although the hospital confirmed that Rao had tested positive for Covid-19 and was undergoing treatment.

Left and Right should not make the difference

Varavara Rao is not a celebrity like Arnab Goswamy; he is not a vocal supporter of the political games of ruling party like Arnab Goswamy. We can understand that for government at centre, arrest of Arnab appears like serious breach of freedom of speech and expression and violation of personal liberty.  How does the Supreme Court deals with the personal liberty issue of Varavara Rao?

During the hearing of Varavara Rao’s bail the Supreme Court questioned the Solicitor General Tushar Mehta who intervened to submit that every prisoner’s health was a concern for the State and such an order in Mr. Rao’s case may lead to other prisoners also seeking the same relief on medical grounds.  Justice Ravindra Bhat, on the Bench, reacted to Mr. Mehta: “That should not deter us… If the health condition of every prisoner requires that [sending him or her to the hospital for treatment], then every prisoner should be sent. Health is health… Who would want a death in jail?”

Ms. Hemalatha said her husband needed critical medical care. He had become very feeble in custody. He suffered from neurological problems and the aftereffects of COVID-19 infection, which he got while in custody. Mr. Rao had suffered a fall at St. George Hospital and injured his head. A medical report on July 30 from the Nanavati Hospital, ordered by the High Court, found that the COVID-19 attack and his fall led to neurological problems. On August 17, the High Court said that “considering the co-morbid factors of age, persistent hyponatremia in COVID-19 case, the patient will require close monitoring”. Ms. Jaising recounted how Mr. Rao was hurriedly discharged from the Nanavati Hospital just to “avoid judicial determination of his bail on medical grounds”.  Ms. Hemalatha said the continuing custody of her husband was a punishment in itself not permissible in law. The court advised the family to amend the pending petitions in the High Court to highlight the issues regarding the basic rights of prisoners.

Hearing by Bombay HC

With the apex court’s advice, the Bombay HC took up the case on November 12, and hearing took place on Tuesday, 17 November 2020). Indira Jaisingh contended that the State has not submitted a complete medical report, in contravention of the High Court’s directions. “The report, which is submitted to you now, is an eye wash. I am earnestly requesting he be moved to Nanavati hospital so that a proper medical report can be submitted to you. We have been saying he is suffering from dementia, where is the report on that?” Jaising argued. But the judges could not hear the arguments clearly and thus it was differed to the next day for physical hearings.

The Bench of Justices SS Shinde and Madhav Jamdar was hearing a plea moved by Rao’s wife, Pendyala Hemlatha, who had contended that Rao’s medical needs are being neglected by the State and that he is being lodged under inhumane conditions at Taloja jail in violation of his rights under Article 21 of the Constitution. Jaising also voiced concern that the exam conducted on Rao was not sufficient to evaluate his health status. She further asserted that Rao should be shifted to Nanavati hospital, given that the jail hospital is not equipped to conduct a proper medical exam.

Since November 17, 2018, Varavara Rao is in detention, two years till today. All his bail petitions were rejected by all the courts. His medical conditions, attack by Covid positive and several other pathetic health situations did not evoke any humanity in the hearts of the judges from lower to top level.

Supreme Court and Article 32

A new thought process is emerging at the apex court, i.e., to discourage the petitions under Article 32 of the Constitution. A journalist Kappan of 41 years and three others were arrested while on their way to Hathras to report an alleged criminal incident of gangrape and murder. UP Police have alleged that Kappan and two members of the Campus Front of India (CFI) were part of a “conspiracy” to inflame religious enmity over the Hathras rape, and booked them on various charges, including under the stringent UAPA and sedition.  Kerala Union of Working Journalists filed a writ petition under Article 32 challenging the journalist’s arrest. The SC says it wants to discourage the petitions under Article 32 and wants HCs to deal with those cases. Chief Justice of India S A Bobde himself said that he was trying to discourage usage of Article 32 of the Constitution— which grants individuals the right to approach the top court seeking enforcement of fundamental rights. Article 32 was considered the unique feature of Indian Constitution and credit is given to Ambedkar for having created a new right to Constitutional remedies.

The case of Sameet Thakkar was not heard

The same bench referred to High Court a similar case invoking Article 32 involving Sameet Thakkar, a Nagpur resident who had challenged the multiple FIRs against him for alleged derogatory tweets against Maharashtra CM Uddhav Thackeray and his ministers. SC observed that “even high courts can uphold fundamental rights”.

This shows that Arnab’s case under Article 32 is rarest of the rare and hence SC has entertained it. On November 11, interim bail to Republic TV editor-in-chief Arnab Goswami was granted by the Supreme Court. It had asked every high court to exercise its jurisdiction “to protect liberty… the ultimate reason for our existence as constitutional courts”. But SC held that the Bombay High Court had erred in rejecting the bail applications of Arnab.

if High Courts have power to protect the fundamental rights, why some of the important cases were transferred by SC on its own to its court? Recently, the Supreme Court transferred the case involving land use for the national capital’s Central Vista project to itself from the Delhi High Court, though the petitioners did not ask for it. In 2018, the SC had transferred the case seeking probe into the death of judge B H Loya from the Bombay High Court to itself.  When such transfers are made, the petitioners will lose a stage of appeal that would otherwise have been available had the high courts heard and decided the case. Such transfers are against the policy of the SC and its assertion that HC are equally powerful to protect the rights.

Nothing will shock us: CJI

When a case came up before the SC, the SC expressed no interest in hearing them. On 6^th November, Senior advocate Mahesh Jethmalani, argued that his client Thakker had been arrested despite the fact that all charges against him in the FIR were bailable offences. The CJI refused to hear Thakkar’s case even as the counsel for the Maharashtra government said the state would not object to granting of bail as the investigation was complete in the case. “If your lordships are not shocked by this, nothing will shock you,” Jethmalani argued.  “We see such matters every day. We are immune to such shocks. Nothing will shock us now,” the CJI responded. it is for the people to get shocked to hear such reports from courts. Unfortunate.

All these incidents show that SC itself did not listen to it and not allowed HCs to act as per the Constitutional mandate. Sometimes like in Arnab’s case took extra care of personal liberty and sometimes like in Varavara Rao and scores of other journalists and CAA protestors, left it to their fate and time of High Courts.

Any attempt to dilute the remedy of Article 32 will be totally against the spirit of Ambedkar’s conceptual foundations of our constitutionalism and will dilute the people’s strength to fight for Constitutional rights. Ambedkar will be turning in his grave.