The Supreme Court of India has repeatedly held that imprisonment does not deprive a prisoner of other fundamental rights that can be exercised consistently with detention. This logic should apply with more force to undertrials and doubly during a pandemic.
The presumption of innocence operates in their favour. Undue delays in trials without bail for the incarcerated are a blatant denial of the fundamental right to life and liberty guaranteed under Article 21. The question, who would be responsible if an undertrial dies in prison due to neglect or of being infected with COVID-19, is hanging in the air.
The absence of the ability to physically appear in court has meant that there is no possibility to ask for an early hearing or getting one. Unfortunately, the High Courts and the Supreme Court have not clearly articulated that bail applications in the time of COVID-19 needs clear priority over all other matters, as the right to life and liberty is so precious. When this denial is in the reaction of 80-year-olds and people with comorbidity the questions of accountability of the courts become apparent.
It is unfortunate that it takes a public outcry to shift an ailing poet and respected activist to a hospital. Surely the right to health is as important if not more to an undertrial in the time of such a serious pandemic. It is undeniable that no state institution can care for a person as well as the family can and at such times. Therefore, undertrials need to be with their near and dear ones. Killing a bail application by delay is just not acceptable in a civilised society. In this respect, the Courts and Governments have to take equal responsibility for the consequences of the detention which can be considered unlawful once other rights are denied.
The State of Maharashtra, where Vara Vara Rao is held, is equally responsible for its refusal to release the Bhima Koregaon accused on the grounds that those accused under UAPA will not be released. Akhil Gogoi in Assam has met a similar fate, indeed worse, since he and his two co-accused have been detected with COVID. Yet they have not been granted bail. One begins to wonder at such moments whether such vehement opposition to bail by NIA prosecutors who are seen to be a breed apart is politically motivated. Most of all, it is the Courts that need to wake up from their slumber and start focusing on issues of life and liberty, rather than issues of religion and reservations on a priority basis.