Why Kobad Ghandy Should Be Released On Bail
By Dr. P.S. Sahni
12 April, 2016
“What is it that has happened to our people? Why have they lost the power to fight?”
- Chinua Achebe: ‘Things Fall Apart’
Kobad Ghandy, arrested in 2009 continues to be incarcerated in Tihar jail with multiple ailments including life threatening ones. He is passionate about the ideology of Maoism. Several decades of his life have been spent for the cause of the indigenous peoples, downtrodden and other oppressed sections of the society. Constant medical attention and care is not possible within the jail premises. Kobad Ghandy is an under-trial. Anyway, every provision of the Indian Constitution applies to him. Various judgments of the Supreme Court of India which point to and read the right to health as a fundamental right apply as much to Kobad Ghandy as to any other citizen. The WHO and UN have express provisions for entitlement to prisoners to the highest attainable standard of health care.
The 198-paged WHO document (2007) titled “Health in Prisons” is a guide to the essentials in prison health. Certain points raised in this document need to be quoted:
i. This guide outlines some of the steps prison system should take to care for prisoners in need. This specially requires that everyone working in prisons understand well how imprisonment effect health and the health needs of prisoners. Other essential elements are being aware of and accepting internationally recommended standards for prison health providing professional care with the same adherence to professional ethics as in other health services and while seeing individual needs as the central feature.
ii. People who are in prison have the same right to health care as everyone else.
iii. Health care staff must have the same professional independence as their professional colleagues who work in the community. Article 12 of the International Covenant on Economic, Social and Cultural Rights (UN 1976) establishes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. This applies to prisoners just as it does to every other human being. Those who are imprisoned retain their fundamental right to enjoy good health and retain their entitlement to a standard of health care that is at least the equivalent of that provided in the wider community.
iv. The United Nation’s (1990) Basic Principles for the Treatment of Prisoners indicate how the entitlement of prisoners to the highest attainable standard of health care should be delivered. Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation. When a state deprives people of their liberty it takes on a responsibility to look after their health in terms both of the conditions under which it detains them and of the individual treatment that may be necessary. (emphasis provided)
v. All health care staff members who work in prisons must always remember that their first duty to any prisoner who is their patient is clinical. This is underlined in the first of the United Nation’s (1982) Principles of Medical Ethics. Of course the Hippocrates Oath to which all doctors are bound cannot be violated for fear or favour.
Kobad Ghandy’s precarious health
During the pendency of one of the applications moved by Kobad Ghandy before the Court of Additional Sessions Judge, New Delhi District, Patiala House Courts, New Delhi, a Report was called and received from the Superintendent, Tihar Jail, regarding the medical condition of the accused, Kobad Ghandy. In this official Report it is stated:
“This is to inform you that above said inmate patient is follow-up case of HTN, Decreased vision, Ingrowing Toe Nail with Keloid, BPH, Cervical Spondylitis and getting treatment from GBPH/ Cardiology Department, AIIMS Hospital / Skin Department & Nephrology Department, Jail Orthopedic S/R, Jail Skin S/R and Doctor on duty. The inmate patient recently reviewed at the AIIMS Hospital / Nephrology Department on 22.08.2015 and they advised some investigation and medication and to review after 03 weeks. The investigation has been done and is plan to review at AIIMS Hospital /Nephrology Department on 12.09.2015 as per advice. The inmate was also reviewed at GB Hospital / Cardiology Department on 29.08.2015 and advised to USG KUB with Renal Doppler and oral medication and to review with investigation report after 01 month. The USG KUB with Renal Doppler has been done and the inmate will be reviewed at GB Pant Hospital / Cardiology Department as per advice. The USG KUB shows mild Prostatomegely with Bilateral Renal Artery Doppler normal. The inmate also reviewed at AIIMS Hospital / Skin & Eye Department on 25.08.2015, for his complaint of Ingrowing Toe Nail, the inmate advised local ointment for 04 weeks from the Skin Department and glasses were prescribed and to review after 06 months for his eye problem from Eye Department. The inmate also reviewed by Doctor on duty on 10.09.2015 for his complaint of loose motion since 01 day and advised appropriate medication for the same. At present his general condition is stable and vitals are stable.”
(Reproduced verbatim from order dated 24.09.2015 of the Additional Sessions Judge, New Delhi)
How these ailments affect Kobad Ghandy’s daily life in prison
The hypertension (high blood pressure) gives him breathlessness, palpitations (eerie feeling of heart beats) and severe headache. His cardiac problem accentuates these symptoms apart from giving heaviness in the chest and dull pain. Extreme anxiety results when his heart beat falls to low levels of 60, 50 and even 40 per minute. Getting up urgently from a lying down position – say to visit the toilet – could result in hypo-tensive (low blood pressure) episode and a fall – which at his age could result in fracture of the hip bone and Colles fracture (fracture of the wrist bone, radius). As he suffers from Irritable Bowel Syndrome he has to rush to the toilet due to the urgent need. This process of rushing to and fro is repeated several times from morning to forenoon till he feels that bowel is cleared. Such is the very nature of Irritable Bowel Syndrome. One of the causes for this is the stressful situation in which he is placed. As if this were not enough he has to cope with Benign Hypertrophy of the Prostrate (enlarged prostrate gland); this requires frequent visit to the urinal; he has to get up several times during the night and literally rush to the urinal. The triad of frequency, urgency and nocturnal urination is deeply disturbing and exhausting. It is also a painful attempt as he also has cervical spondylitis, a degenerative process of the seven bones forming the neck part of his spine. His neck movements are restricted and painful. The nerves emanating from the spinal cord to both his arms get compressed resulting in pain, tingling and numbness of both arms and hands. Occasionally this pain is excruciating – described as a ‘feeling of passing of electric current’. Coupled with this is the possibility of associated VBI (Vertebro-Basilar-Insufficiency) causing blood supply to a part of the brain to be less than normal; this results in episodes of dizziness/nausea/vomiting/attacks of ‘black-outs’. This itself could result in a fall. The concomitant decreased vision in both eyes increases the chances of this fall – remember he has not been provided an attendant/‘sevadar’. A person with cervical spondylitis is expressly forbidden to carry heavy weight, is advised to use a cotton mattress over a hard bed; and H-shaped pillow for the neck at night, as also a cervical collar during the day. Daily physiotherapy, hot/cold therapy for neck is needed but is not practical within the jail premises. Besides a nurse is required to give him several medicines at the right time on a twenty-four hour basis. This, too, has been denied to him. It has been reported that several times he had been shifted to a newer ward. This entails that he has to carry his luggage/belongings himself – a hard labour of sorts. This further plays havoc with his neck ailment.
The in-growing toe nail with keloid causes gnawing pain (akin to being bitten by a rat). This itself causes sleeplessness as there is a constant urge to scratch the skin in and around the keloid which gets itchy. At times the scratching actually increases the itching! One could spend a sleepless night and not be over with it.
It is humanly impossible for any prison inmate to be coordinating visits to different hospitals in Delhi and different departments within the same hospital. The only correct way of treating his host of ailments is to ensure that he is admitted in a multi-specialty hospital under a physician in the Department of Internal Medicine. All other specialists could be visiting him upon referral by the physician. This ensures that comprehensive medical care and treatment gets provided. It also simplifies undertaking a battery of tests and investigations. Till such time that all his ailments are under control he should be allowed to continue to stay in the hospital. It is ironic that Kobad Ghandy was arrested in 2009 while he was visiting Delhi for better medical care of his ailments. Right since his arrest this has been denied to him. Kobad Ghandy is in a unique situation which calls for extraordinary medical attention. Piecemeal medical care will not do. It will only lead to preventable death in the prison. The inhumanity faced by Kobad Ghandy is no different from that faced by the protagonist, K. in Kafka’s The Trial.
Additional Sessions Judge, New Delhi ordered on 24.09.2015:
“From contents of the above report, it is apparent that Kobad Ghandy is suffering from a host of medical ailments. He is aged about 65 years. His condition has visibly deteriorated during the period the trial of this case has progressed before this Court. Kobad Ghandy is in custody since 20.09.2009. His co-accused Rajinder Kumar has been granted bail (though he has not filed bail bonds and remains in custody).
In these facts and circumstances, I admit the accused Kobad Ghandy to interim bail for a period of three months on his furnishing a personal bond in the sum of Rs. 1,00,000/- (Rupees One lac) and two sureties of the like amount.”
But this bail order brings no relief. Kobad Ghandy sent a public appeal which was published in Mainstream issue dated 27 November, 2015. A few lines need to be quoted:
“Now, once the Delhi case is over, I will have to face serial trials—and that too at the age of 69 with serious heart, kidney and arthritis problems. The cardiologist seriously considered I may need a pace-maker if my pulse continued to drop below 40.
Though the Delhi trial is nearing its end, the learned judge, in September 2015, considered my health conditions so serious as to grant me three months interim bail. Let alone avail of this bail to get proper treatment (impossible in jail), I will now be taken from one court/jail to another all over the country, which is nothing but an attempt to kill me.
Given that all the above ‘cases’ (except the one in Delhi) have questionable legal norms, and given that I have been denied my constitutional right to speedy trials, and, most importantly, given my age and failing health, I request that an appeal be sent out urgently to the government to release me on bail on health/humanitarian grounds.
Please consider this as urgent.”
How bail has eluded Kobad Ghandy in another trial in Andhra Pradesh is a commentary on the sad state of affairs in the judiciary. The High Court of Andhra Pradesh, Hyderabad in its judgement and order dated 10 August, 2011 had granted regular bail to Kobad Ghandy. The State of Andhra Pradesh went in appeal against this order to the Supreme Court which in its order dated 27 January, 2012 granted interim stay of the bail order! This interim stay on grant of bail – a rarity – continued till 18 July, 2014 i.e. for over thirty months!! It was only in July 2014 that the Supreme Court of India directed the District and Sessions Judge in Andhra Pradesh before whom Kobad Ghandy’s case was pending to decide the same as expeditiously as possible in accordance with law!!! Two things are pertinent about these orders by the apex court. A citizen expects the apex court to be concerned about his/her liberty being deprived. In Kobad Ghandy’s case the Supreme Court of India stayed the grant of bail for thirty months in the first instance and worse still after thirty months it allowed the stay on bail to continue till the disposal of Kobad Ghandy’s case before the learned District and Sessions Judge, Andhra Pradesh. Thus bail has been stayed by the apex court since 27 January, 2012; and this stay continues till date. Why could the apex court not direct the case to be decided as expeditiously in its 2012 order itself? And why should Kobad Ghandy be made to suffer prison incarceration unnecessarily? In true Orwellian double-speak, bail for Kobad Ghandy has so far meant further stay in jail.
Limits of Anglo-Saxon Jurisprudence
At the behest of the powers that be Kobad Ghandy is facing cases emanating from Jharkhand, Andhra Pradesh, West Bengal, Patiala, Surat and Delhi. The Jharkhand case allegedly dates back to the year 2007; 15 cases from 1990’s to 2005; and so on. Kobad Ghandy denies all the charges levelled against him by various State governments. The trial in the Delhi case itself continues in 2016 while the trial in other cases has not even begun. At this rate it would take 4 to 5 decades before the trial in all cases gets completed unless the trials in all the cases run concurrently. Right from the judges of the subordinate judiciary to those of the highest court of the land, as also the political establishment is well aware that the whole attempt is to ensure that Kobad Ghandy dies in this or that jail without the trial being completed in all the cases. There is not even a pretence of ensuring that justice is done.
Kobad Ghandy has publicly stated that his constitutional right to speedy trials has been taken away. It so happens that the Delhi Lt. Governor has ensured that Kobad Ghandy cannot attend cases outside Delhi till the Delhi case is over. The Delhi Lt. Governor ensured this by invoking Section 268 of the Code of Criminal Procedure. Since the delay in trials is patently due to the legal rigging by the minions of the Indian State, the latter should now be obliged to ensure the following:
1. Bail for Kobad Ghandy on health and humanitarian grounds.
2. Shifting of Kobad Ghandy to a multispecialty hospital on a long term basis for his treatment and care at state expense.
3. Simultaneous trial of all cases through video conferencing while Kobad Ghandy recuperates in a home care set-up after being discharged from the hospital.
Kobad Ghandy has invoked his constitutional right to speedy trials; he had been on a peaceful hunger strike in 2015 within the jail premises against the harassment by the authorities. It is not just Kobad Ghandy who is on trial; it is the Indian judicial system too, which has to innovate and find a creative legal solution so that Kobad Ghandy is set free on bail and gets the best treatment for his fast deteriorating health. After all what would be achieved if Kobad Ghandy dies in jail without proper treatment? Would it end Maoism? – That is the philosophical question.
(Dr. P.S. Sahni, Orthopaedic Surgeon is a member of PIL Watch Group. The group is campaigning on ‘bail not jail’ since 2014 particularly in cases of public importance wherein a socio-political environment has been manufactured which goes against the accused getting justice. Email: firstname.lastname@example.org)