PUDR raises concern over the repeated denial of medical bail to septuagenarian E. Abubacker who has been languishing as an undertrial since September 22, 2022, in Delhi’s Tihar Jail. Most recently, in July 2026, the special NIA court rejected Abubacker’s bail plea, including on medical grounds. Abubacker, a noted leader of the now banned PFI (People’s Front of India) suffers from a host of health disorders including diabetes mellitus with retinopathy, hypertension, idiopathic Parkinson’s disease, coronary artery disease, post-operative oesophagopharyngeal carcinoma, and benign prostatic hyperplasia. In January 2020, 80% of his abdominal and intestinal area were removed compromising his digestive system. His cancer together with his comorbidities require round-the-clock care and supervision.
Since November 2022, Abubacker appealed thrice to the trial court for relief either as regular bail or as medical bail, and thrice the trial court struck down his appeal, the latest being July 2026. Abubacker challenged the trial court’s rejection in the Delhi High Court which too struck them down, in June 2023, and in May 2024. Independently, Abubacker appealed to the High Court for being shifted to a private hospital while in judicial custody. The High Court struck this down too in March 2026. Abubacker then appealed to the Supreme Court and the matter is pending before the apex court. In short, despite having multiple health problems, Abubacker has received no relief from the trial court and the High Court thus far. He continues to languish behind bars in a critical medical condition.
Why have the courts repeatedly denied medical bail to an elderly undertrial prisoner who suffers from a multitude of health issues and whose family is ready to support and pay for all charges if he’s allowed to move to a private hospital? Father Stan Swamy’s death in the Bhima Koregaon case should have served as a cautionary tale. It may be recalled that the trial court rejected Father Stan’s urgent plea for medical bail. The Bombay High Court then took inordinately long to decide, while Father Stan’s condition deteriorated and turned critical. Finally, the Court allowed him to move to a private hospital (Holy Family), only to succumb to his ill health.
In Abubacker’s case, the trial court dismissed his appeals primarily on grounds of the gravity of the charges. The court did call for his medical report from the jail authorities as well as
from the Indraprastha Apollo Hospital which had operated him for his cancer and which did not dispute the severity of his medical condition. However, the court gave weightage to the offence, yet to be proven, rather than to his serious medical condition on the ground that his condition had not deteriorated. But neither did his condition show improvement in prison. The court’s reasoning suggested that Abubacker’s existing critical condition, cancer read with comorbidities, is not sufficient, and that as an under trial prisoner his medical condition must show significant deterioration for his appeal to be taken seriously.
Abubacker was arrested on September 22, 2022. A few days after Abubacker’s arrest, on September 27, 2022, the PFI was proscribed as an unlawful organisation, primarily for its “provocative speeches” against the Government of India, and for “imparting weapons training”, actions which were aimed at overwhelming the Indian State. Preceding the ban an FIR was registered by the P.S. NIA on April 13, 2022, against 25 members of PFI, under sections of the IPC (conspiracy and for promoting enmity between different groups), along with the pertinent sections of the UAPA including membership of terrorist organization, raising funds for terrorist acts, conspiracy, support to terrorist organisation, amongst others. The chargesheet was submitted in March 2023, while the charges were framed in July 2026, by which time Abubacker had already spent close to four years in jail.
The most recent trial court order of July 2026 in Abubacker’s matter, while refusing him bail, stated that delay in trial as a ground for bail has to be appreciated in prevailing circumstances and placed the burden on the accused to cite reasons for the delay in court proceedings. The court wrote: “Those circumstances include the gravity of offence, workload on this court, number of accused persons involved, number of counsels representing accused persons and likewise.” [para 25].
Without delving into the rights and wrongs of the case for which Abubacker has been arrested, what invites our attention is the regrettable illogicity of a legal framework which enables a situation which first allows for long incarceration of an accused and then denies urgent medical relief based on the prosecution’s narrative of “gravity of offence” (as recounted in the chargesheet), rather than arriving at a considered view of medical bail on humanitarian grounds.
PUDR has time and again drawn attention to the incongruities of the criminal justice system, which confront undertrial prisoners (UTP) charged under The Unlawful Activities Prevention Act (1967). After arrest/detention, UTPs are placed for a long period of detention in judicial
custody. Sometimes for the entirety of the period of trial, which can be as much as a decade. The trial court is their custodian. Yet the day-to-day management and authority is exercised by the jail authority over the UTPs, theoretically under judicial oversight. In other words, any relief or redressal of any complaint that an UTP has regarding the prison authorities refusing to heed their ‘requests’, including for urgent medical help, has to be sought from the custodian court. Since prison conditions have improved glacially, prisoners are compelled repeatedly to turn for relief to the court. With a caveat that not all prisoners have the resources to do this.
Since UTPs have to appeal before the custodial court, even urgent health matters take time because of the protocol followed by the court – issuing notice to the jail authority, summoning medical records, hearing arguments and issuing orders – besides the fact that courts are already overloaded with cases. Hence, delay is written into decisions regarding bail/relief in urgent medical issues. Instead of recognizing systemic delays, the gravity of the offence alleged against the accused is shown as the main ground for refusing an UTP relief even in cases of severe medical issues, such as Abubacker’s.
Ironically then, it is the UTP who carries the cross for a systemic problem created under the UAPA which incarcerates a person based on the gravity of the offence and which provides the raison d’etre for the courts to refuse bail. It is noteworthy that each instance cited in Abubacker’s court order as causes for delay, actually draws attention to the issue of long incarceration of UTPs, well before the filing of chargesheet. Prisons are overcrowded and jail administrations are indifferent to the welfare of UTPs, who are compelled to turn to the court for relief. This in turn contributes to delay in the process of trial for no fault of the UTPs. In short, the process not only debilitates UTPs from seeking relief in urgent health matters but it also penalizes them.
The process itself has been turned into a punishment, one where even the severity of medical condition and its consideration on humanitarian grounds gets outweighed by the unproven gravity of the offence alleged. We saw the outcome of this systemic problem in the tragic death of Father Stan Swamy. We fear that the same fate may befall Erappungal Abubacker. Such a tragic outcome does not sit well with the country’s claim to follow the ‘Rule of Law’, which believes and follows the precept that no person shall be punished without a fair trial. Instead, when the process is the punishment, it hollows out the primacy accorded to a person’s life and liberty as mandated by Article 21 of the constitution.
Deepika Tandon & Shahana Bhattacharya
(Secretaries PUDR)
