Saying that the “most precious fundamental right to life unconditionally embraces even an undertrial”, the Supreme Court on Wednesday directed that journalist Sidhique Kappan, arrested by the Uttar Pradesh Police and charged under the Unlawful Activities Prevention Act (UAPA), be shifted to a government hospital in Delhi for better treatment.
“…owing to the apparent precarious health condition of the arrestee, it is necessary to provide adequate and effective medical assistance to him and to allay all apprehension relating to his health, it would be in the interest of justice to shift Sidhique Kappan… either to Ram Manohar Lohia Hospital or to All India Institute of Medical Sciences (AIIMS) or any other Government Hospital in Delhi for the proper medical treatment,” said a bench headed by Chief Justice of India N V Ramana and with Justices Surya Kant and A S Bopanna, adding that after recovery, he can be sent back to Mathura jail.
The court added that meanwhile Kappan is at liberty to approach “the concerned courts for the grant of bail or to challenge the proceedings or for quashing the chargesheet”.
The direction came on an application by the Kerala Union of Working Journalists (KUWJ), which contended that Kappan had suffered a fall in the jail bathroom, following which he was admitted to K M Medical College in Mathura, and had also tested positive for Covid-19. It pleaded that he be shifted to AIIMS or Safdarjung Hospital in Delhi for proper treatment.
Hearing the matter on Tuesday, the court had asked the UP government to submit his medical records.
After perusing the medical reports, the court said they showed that he had tested positive for Covid on April 21, had suffered an injury as he fainted and fell down in the bathroom, and had other multiple health issues. The court also pointed out that another set of medical records showed that he has tested negative for Covid.
Arguing the case of the state on Wednesday, Solicitor General Tushar Mehta pointed out that Kappan’s RT-PCR test had come out negative and opposed the plea for him to be shifted to Delhi, saying the facilities in Mathura were adequate. He submitted that the application for Kappan to be shifted to a Delhi hospital was filed by the journalists’ body in a pending habeus corpus petition seeking his release, and that the petition as well as the application were not maintainable.
The bench pointed out that Kappan’s wife had also sought to intervene seeking his release and therefore, the issue of maintainability of the KUWJ plea has lost its significance.
Mehta contended that “thousands of honest tax payers” were getting treated at the Mathura hospital and that many with serious health problems were getting treatment in UP. “Why should the accused get a special treatment just because a so-called association of journalists has filed a habaes corpus petition? Why should an accused who is associated with a banned organisation get preferential treatment over honest tax payers,” he asked, adding that there would be people with comorbidities in every jail.
But the CJI told the SG, “If his health is complicated… he has also confined to the relief that he wants a proper treatment. Let him be admitted to a better hospital in Delhi and then he can be taken back.”
The SG continued to oppose and suggested that a medical board be set up to decide.
The court said it is also in the interest of the state to give him proper medical care.
“Let him be treated in Mathura,” continued Mehta, adding, “people with multiple organ failure also get treatment in UP”.
The bench then clarified that its order was not a reflection on the state.
Mehta then asked for an adjournment till tomorrow. “I am taken aback. Let me reply tomorrow,” he told the bench.
But the bench decided to take up the plea Wednesday afternoon itself.
Earlier, during the hearing, Advocate Wills Mathew, appearing for the accused, initially prayed for bail.
The counsel argued that the accused had no previous criminal cases against him and, being a journalist, he does come into contact with all kinds of people and it cannot be held against him.
Countering this, the SG said that when he was arrested, Kappan was carrying a identity card associating him with ‘Thejas’, a newspaper that was shut down in December 2018 and was a mouthpiece of the Popular Front of India (PFI).
The court sought to know if there is any ban on the PFI, to which the SG replied that though there is no ban currently, the Centre is considering all aspects.
Mehta added that Kappan should move a regular court for bail now that the chargesheet has been filed.
The court however refused to go into the merits of the case, saying “the enquiry before this Court is limited to providing adequate health care to the accused…”
