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Varavara Rao, 82, held in the Elgar Parishad-Bhima Koregaon case, was bailed on Monday by the Bombay High Court for six months, stating that not doing so would amount to the court “abdicating” its “constitutional duty” as the “protector of human rights” and a violation of the fundamental right to health arising from the right to life in Article 21 of the Constitution.

Turning down an appeal by the NIA for a three-week stay on the order’s execution, the high court granted bail on a personal bond of Rs 50,000 to the poet-activist on health grounds. Rao, who has been in custody awaiting trial since August 2018, was advised to surrender after completing the six-month bail period, or apply for an extension, backed by medical records, depending on his health status. However, an appeal by Rao to be permitted to return to Hyderabad was turned down.

Rao is currently in Nanavati Hospital, and, depending on his condition, will be discharged.

The Division Bench of Justices S S S Shinde and Manish Pitale reported in a 92-page order, “Taking any other view in the matter (apart from bail) would amount to diluting rights available to prisoners to claim relief on health grounds under Article 21 of the Constitution, particularly when material available on record indicates that continued incarceration of such persons would amount to endangering their life… We are of the opinion that this court, as a constitutional court, cannot be a mute spectator to the undertrial being sent to prison and then to government hospitals where his health deteriorates further, to be ultimately shifted to private super-speciality hospitals, upon intervention of courts, and such movements of the undertrial continue back and forth only because his bail application has been turned down on merits under Section 43D (5) of the Unlawful Activities (Prevention) Act.”

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The Bench said that they were granting the relief “with all humility at their command, keeping in mind human consideration, the well-recognised fundamental rights of the undertrial to have quality medical aid… inadequate facilities in the Taloja Jail hospital”. “We are of the opinion that this is a genuine and fit case to grant relief, or else we will be abdicating our constitutional duty and function as a protector of human rights and right to health covered under right to life,” the court said.

The court noted that the hospital attached to the Taloja Central Prison and the J J J Hospital jail ward are “ill-equipped and insufficient” to take care of Rao’s health and sending him back to the prison would “certainly endanger his life” and “run the risk of his health deteriorating to the point of no return.

On Rao’s plea for permission to return to his home in Hyderabad, the bench said, “… although the material on record does show that the health condition of the undertrial is precarious, sending the undertrial back to where he belongs is fraught with the risk of his presence being used by those allegedly associated with him to seek to revive nefarious activities… therefore, it would be appropriate to impose such conditions as would be necessary for ensuring that the undertrial on his own or those allegedly associated with him do not take undue advantage of the situation, which would ultimately adversely affect the trial.”

Rao must remain within the jurisdiction of, and be available for investigation by, the Special NIA Court, Mumbai. Added The Table, “However, he may apply for exemption from personal appearance.” He can do his quarterly check-in by calling WhatsApp at the nearest police station.

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Rao has to hand over his passport and share details of his address during the bail period with the High Court, as well as his own contact number and others staying with him. “The undertrial shall not try to establish communication with the co-accused or any other person involved directly or indirectly in similar activities or make any international call to any person indulging in similar activities as alleged against him through any mode of communication,” the court said. It also directed Rao not to hold visitor gatherings apart from close relatives.

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