By Syed Zubair Ahmad
E. Abubacker, a 72-year-old retired schoolteacher, journalist, activist, and one of the most popular leaders of South Indian Muslims was the first Chairman of the Popular Front of India (PFI). He has been in custody for two years following his arrest on September 22, 2022, from his residence in Kozhikode. At the time of his arrest, Abubacker, who had no prior criminal record, was physically frail and unable to walk.
E. Abubacker, along with veteran journalist and National Confederation of Human Rights Organisations (NCHRO) general secretary Professor P. Koya, former PFI national chairman O.M.A. Salam, former vice-chairman E.M. Abdul Rahiman, and at least 40 other Muslim leaders and activists associated with the banned group Popular Front of India (PFI), were arrested on September 22, 2022.
A total of over 40 Muslim leaders from various organisations were arrested under the draconian Unlawful Activities (Prevention) Act (UAPA) by the National Investigation Agency (NIA) during its first nationwide crackdown on the PFI on September 22, 2022 and brought to Delhi.
Six days later, on September 28, 2022, the Union government banned the PFI and its affiliated organisations, including Campus Front of India, Rehab India Foundation, All India Imams Council, National Confederation of Human Rights Organisations, National Women’s Front, Junior Front, Empower India Foundation, and Rehab Foundation, Kerala. These organisations were declared “unlawful associations” for a period of five years.
E. Abubacker has been bedridden since January 2020 due to severe health conditions. He underwent extensive treatment for cancer, including chemotherapy and surgery, which involved the surgical removal of 80% of his abdominal and intestinal area. This has left his digestive system severely compromised. He also suffers from Parkinson’s disease, diabetes, vision loss, and hypertension, further deteriorating his overall health.
He has been undergoing intensive medical treatment and care at various hospitals since 2019, when he was diagnosed with a rare and malignant form of cancer, ‘Gastroesophageal junction adenocarcinoma (GEJAC)’.
The Indian Council of Medical Research (ICMR) study published as the “Consensus Document for Management of Esophageal Cancer”, notes proper care and continuous attention is mandatory to these type of survived patients.
E. Abubacker requires constant assistance while in custody to perform even basic tasks, including his morning ablutions and personal hygiene. He depends on external help for activities such as washing himself after daily routines. Currently, he must take multiple prescribed medications daily, but he struggles to remember the schedule without assistance.
E Abubacker has routinely been taken to various departments ‘in AIIMS Delhi and other hospitals since his arrest for the test and check-up, and has otherwise frequently been lodged in the jail hospital. Relatively simple issues such as obtaining medical reports, conducting tests such as Scans (to check for recurrence of cancer), among other issues require court intervention. For instance, medical reports and test results are also given to him only upon directions from Court.
His advocate asserts that E. Abubacker has been falsely implicated in several cases and emphasizes that his critical medical condition requires proper care and attention. Without adequate medical support, his health could deteriorate irreparably. Apart from this , his daughter, Leena Tabassum, is also battling breast cancer, creating an extraordinary situation where both father and daughter are suffering from life-threatening illnesses.
Despite court orders, E. Abubacker has not been admitted to AIIMS for treatment
In his earlier bail applications lower courts was not inclined to grant bail to E Abubacker, but emphasized his right to have treatment for his serious ailment and ordered to admit him to AIIMS, New Delhi while in custody of the jail authorities, so that his medical condition will not be deteriorated any further. Sad state of affairs, each time when he approach AIIMS, he is running pillar to pole to get treated in AIIMS. Despite the Honourable Courts clear instructions, he never been admitted in AIIMS. This is happening to a 72 year told Parkinson’s patient and cancer survivor.
We may also note that learned Trial Court, while dismissing the earlier bail application of E Abubacker, had also directed as under: – “However having so concluded I find that since the immediate priority for accused, even if released on bail, would be to get treatment for his medical issues. Which this court can provide even while he being in judicial custody. Therefore, in view of concerns raised on behalf of accused/ applicant and also taking into consideration age, weakness, previous medical history and requirement of continuous treatment, following directions are being given: –
- Accused is directed to be admitted for all his medical complications in All India Institute of Medical Sciences (AIIMS) if he and his family members so desires. Upon his admission jail authorities are directed to transfer complete file of his medical treatment so that-worthy Doctors of AIIMS can provide best of the treatment to the accused while admitted in that hospital.
- While being admitted in All India Institute of Medical Sciences accused would be considered to be in judicial custody. However, at the same time would be permitted to meet only one family member of accused whose identity and credentials would be duly verified to meet the accused every day as per Doctor’s advice.
- While being admitted in All India Institute of Medical Sciences, accused would be provided assistant/helper from the medical authorities, and would be provided medications, diet as per medical prescription of State expense.
Despite the above directions, E Abubacker was never admitted in AIIMS and his condition continues to deteriorate in custody by each passing day.
Status of trial
The NIA claims that investigation in the present case against the accused arrested was complete on 18.03.2023 (after almost six months since the arrest), on which day charge sheet was filed. The trial is presently at the stage of supply to the accused of copy of some documents which are not provided till now. No purpose would be achieved in keeping the E Abubacker in custody any longer during the pendency proceedings. It is submitted that there are no grounds for believing that the accusations against the E Abubacker are prima facie true. The Hon’ble Supreme Court has recently held in the case of Javed Gulam Nabi Sheikh v. State of Maharashtra [Cr. App No. 2787/2024 decided on 03.07.2024], while granting bail in respect of an undertrial prisoner punishable up to 10 years held that:
“In custody for offences If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.”
E Abubacker is an accused not a convict
Despites many cases against him, E Abubacker is still an accused; not a convict. It is trite law that an accused is entitled to a speedy trial. If the alleged offence is a serious one, it is all the more necessary for the prosecution to ensure that the trial is concluded expeditiously. When a trial gets prolonged, it is not open to the prosecution to oppose bail of the accused-undertrial on the ground that the charges are very serious. Bail cannot be denied only on the ground that the charges are very serious though there is no end in sight for the trial to conclude.
Recently in Manish Kumar Sisodia v/s The Directorate of Enforcement case (August 9, 2024) the Supreme Court stressed the ‘bail is rule and jail an exception’ with the right to fair and speedy trial as implicit in the Right to Life under Article 21 of the Constitution’. Judgement of Punjab and Haryana High Court in Daler Singh v. State of Punjab also emphasises that the right to speedy trial is a fundamental right within the broad scope of Article 21 of the Constitution.
In the present case, E Abubacker and others has remained in custody for over 2 years. However, there is no likelihood of the trial concluding during his ‘lifetime’!. The possibility of the trial commencing in the near future in the present case is also extremely bleak.
The Hon’ble Supreme Court of India held that even a person sentenced to death and confined within a prison, cannot be reduced to mere animal existence. [Sunil Batra and Kashmir Singh Cases ]. The Hon’ble Supreme Court went on to hold in this case ‘that basic human rights cannot be denied to a person even though he remains confined in jail as per the procedure established by law
E. Abubacker has a fundamental right to dignity, which, given his critical condition, necessitates the assistance and care of his family. His pre-trial incarceration undermines this right, depriving him of the support he urgently needs.
At this precarious stage between life and death, his rights to health and dignity are severely compromised by his separation from family members who can provide care, as well as the lack of prompt and unrestricted access to his long-term medical professionals. Even routine medical tests take a significant toll on his health, and the results of these tests, often only released following court intervention, must be reviewed by his treating physicians and other specialists for second opinions.
E. Abubacker’s medical condition makes it nearly impossible for jail authorities to provide the necessary treatment, care, monitoring, and timely testing he requires. Furthermore, he has a fundamental right to choose his treatment, within the limits of his financial capacity.
The mysterious silence of All India Muslim Personal Law Board
Notably, E. Abubacker is one of the founding members of the All India Muslim Personal Law Board (AIMPLB), the largest non-governmental organization representing Indian Muslims. At the time of his arrest, he served as an executive member of the Board. However, the organization did not release any official statement regarding his arrest, although some members individually condemned it. Many community members believe that the AIMPLB’s silence emboldened the Modi government to further its agenda of instilling fear within the Muslim community.
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