Safoora Zargar Bail Plea and the Constitutionality of UAPA

Introduction

In unprecedented times likes these, we try everyday to find something normal. And yet, every single day witnesses a story we feel disturbed about. From the pandemic worsening till deaths and judicial over reaches, this lockdown has seen it all. In this article, we try to bring forth another disturbing issue, the Safoora Zargar Arrest while also drawing some attention of yours to the draconian act- UAPA ‘Unlawful Activities Prevention Act’. The article revolves around who is Safoora Zargar as  a person? On what charges is she held under detention? What are the laws governing the charges? Media, Trolls, Pregnancy and her bail pleas.

“The rights of every man are diminished when the rights of one man are threatened.”

― John F. Kennedy

The Timeline

For the first time Safoora was arrested at her residence by Delhi Police on 10 April, she was 3 months pregnant at the time. The arrest was made on the basis that she was involved in organising an anti-CAA protest and road blockade under the Jaffrabad metro station in Delhi on 22–23 February. Initially her family members believed it to be routine questioning and the police had no warrant, but she was interrogated heavily for 6 hours, reports her husband and it was then conveyed to him that she had been arrested. The face of media wing of the Jamia Coordination Committee was produced before the Metropolitan Magistrate on 11th of April 2020.

On 13th of April she got released as the judge granted her bail, but surprisingly she was immediately rearrested by the police on another charge. Additional charges were also pressed against her like murder, attempt to murder, terrorism, conspiracy, and few sections under the UAPA (Unlawful Activities Prevention Act) Many of her fellow members at the Jamia Coordination Committee were also held under detention under this Act.

Since then, nearly from 15th of April 2020, amidst a nationwide lockdown due to the COVID-19 pandemic, the police managed to held her in detention at the Tihar Jail. As many popular arrestees have been confined in Tihar, people are aware and even the officials that it’s an overcrowded prison, so to protect both the mother and foetus, arrangments of solitary confinement were made. The Hindu also reports that a high-powered committee headed by a Delhi High Court judge directed DG (Prisons) to ensure that adequate medical assistance is provided to Zargar. Further On 18th of April 2020, Zargar’s lawyers made an application for bail and this was subsequently rejected by the court on 21 April.Next, a bail application was scheduled on 2nd of May but the advocates withdrew it in court.On 26th of May 2020, a Delhi court sentenced Zargar in custody until 25th of June 2020.The most recent plea of 30th May was also rejected.Still hopeful of the judicial system, on 17th of June 2020, shemoved the Delhi High Court, challenging the bail rejecting order of  4th of June. The application was brought to the attention of Justice Rajiv Shakdher on 18th of June 2020, who further directed the officials to produce a status report on the plea. The next bail hearing is scheduled on 22nd of June 2020.

Legal Angle to the Arrest and the UAPA

According to the prosecution, Zargar made an inflammatory speech on 23 February 2020 at Chand Bagh, which sparked the riots killing more than 50 muslims.According to the lawyers- Ritesh Dhar Dubey and Trideep Pais, Zargar had visited Chand Bagh on 23 February before the violence started, and rather delivered her speech that day in Khureji which is not even close to Chand Bagh.The speech was not at all provocative but the judge chose to refer statements and a record of a WhatsApp chat, and claimed a prima facie evidence which showed that she full fledged conspired to block the roads (chakka jam).

Also the court rejected her bail on the grounds that all the charges pressed against Zargar was of a grave nature. According to the Patiala Judge Dharmendra Rana, “The acts and inflammatory speeches of the co-conspirators are admissible under Section 10 of the Indian Evidence even against the applicant/accused.”

The order also read that “One cannot ignore the case of the prosecution that the accused persons have conspired to cause disruption of such an extent and magnitude that it would lead to disorderliness and disturbance of law and order of an unprecedented scale,”

Now, The Unlawful Activities Prevention Act is currently India’s primary anti-terror legislation, it was amended in compensation to the more worse POTA Act. UAPA just doesn’t aim at curbing terrorism, it also plays a vital role in managing the aspects under ‘unlawful activity’.

The draconian act itself doesn’t definewhat actually an ‘unlawful activity’ is under the UAPA, it is very vague with terms like any activity which “disclaims, questions, disrupts or is intended to disrupt” the sovereignty and territorial integrity of India. Another clause also plays a major role here, so if any action of a person “which causes or is intended to cause disaffection against India” will also be considered as an unlawful activity this was very pertinent to the Zargar case. Now what is to amount to ‘disaffection against India’? Your answer and mine would vary, right? Furthermore, the prosecution never bothered to explain what offence had Zargar really committed.

Section 43D(5) of the UAPA[i] states a person booked under Chapters IV and VI of the UAPA that is, terrorism and belonging to a terrorist organisation shall not be grantedif the Court opines there are reasonable grounds against such person on a prima facie level.

Hence, it is clear: all the material provided by on the prosecution’s side to make their case has to show a prima facie case for a terrorism offence. Disappointingly, nothing in the Judge Dharmendar Rana’s order shows such condition has been met with. So the prima facie evidence against her was not available but Judge Dharmender Rana finds eventually that, from the witness statements and the WhatsApp records and states, “it can be safely inferred that there is prima facie evidence to show that there was a conspiracy to atleast blockade the roads (chakka jam).”

According to his own assessment of the ‘law’ to meet the essentials of Section 43 D (5)the offence should be as serious as it brings the entire city of Delhi to its knees and bring the machinery of government to a grinding halt, and yet the allegations were held valid on the basis that the conspiracy led to disruption of law and orderliness. Just like Gautam Bhatia in his amazingly described article[ii] :Imprisonment by Metaphor: The Safoora Zargar Bail Order  leaves this controversy here to the reader’s judgement, we do too.

Media Activism, Trolling and International Attention

The Jamia Milita Islamis research scholar, Zargar is gaining a very wide popularity, she is a very active protestor against the very controversial Citizenship Amendment Act. Her arrest gained a lot of attention because of factors like baseless allegations and charges under UAPA, her pregnancy and repeated bail rejections amidst a nationwide lockdown. Constitutional Scholars have heavily critiqued this judicial act and people are supporting Zargar actively through all modes of media. There is a serious activism amongst the youth as far as the Delhi Riots Case is concerned.Twitter was fled with rage as the Delhi Police was accused of ‘Hypocrisy’, the suspended J&K DSP was set free inspite of a terror Case against him because the charge sheet was not filed in time, but Zargar is yet behind bars. Moreover, she was heavily trolled by devil minded people, obviously bored and out of business in lockdown. This included claims like she was raped by Hindus and hence pregnant, that she was unwed, questions on her ‘character’ as a lady was raised and even a porn hub video was shared spreading the word that it was Safoora Zargar raped. ‘Please give her condoms’ was a hashtag widely spread.Her trolls were mostly based on misogynistic and islamopjobic comments. Her sister Sameeya Zargar and Husband Sirwal both are very appalled by the same.This arrest has gained international attention as well. In June 2020, a preliminary report by the American Bar Association said that “International law, including treaties to which India is a state party, only permit pre-trial detention under narrow circumstances, which do not appear to have been met in Zargar’s case.” The report also said that “In addition to her legal issues, Zargar has also been the victim of a slanderous online campaign, including falsified and explicit images of her being shared online and through WhatsApp messenger”[iii]

Conclusion

Constitutional democracy is something we fought for 200 years and humanitarian rights are a serious issue for every Indian today.The Delhi girl is gaining a lot of media support and attention, her bail decision stands important today for you, me and every other individual in this country because we cannot let metaphors in judgements decide our fate. Judge Rana quoted “when you choose to play with embers you cannot blame the wind to have carried the spark a bit too far and spread the fire”, and that consequently, the “acts and inflammatory speeches of the co-conspirators are … admissible against the accused.” What spread the fire and who played with embers is still a question to ponder and who are we as citizens going to blame? The wind or the fractured judicial system. Can there be any prima facie case when individuals are booked as terrorists for blocking roads? Is there any possible justification in keeping a 21 weeks pregnant woman, suffering from PCOD in an overcrowded prison infected with COVID 19 inmates in the middle of a nationwide pandemic but letting go a suspended DSP, actually caught red handed in a terror case? India’s stance on human rights and terrorism curbing act are to be reviewed, yet again.

References

https://en.wikipedia.org/wiki/Safoora_Zargar#cite_note-FIDG-29May20-11

https://www.article-14.com/post/the-inner-world-of-safoora-zargar

https://www.fidh.org/en/issues/human-rights-defenders/india-arbitrary-detention-of-several-defenders-for-protesting-against

https://www.moneycontrol.com/news/india/delhi-riots-pregnant-jamia-student-safoora-zargar-in-tihar-jail-for-three-weeks-family-still-hopeful-5232201.html

https://www.thehindu.com/news/cities/Delhi/ensure-medical-aid-to-safoora-zargar-panel-tells-dg-prisons/article31521630.ece

https://www.thequint.com/news/india/safoora-zargar-sister-sameeya-zargar-family-bail-denied-patiala-court

https://indconlawphil.wordpress.com/2020/06/04/imprisonment-by-metaphor-the-safoora-zargar-bail-order/amp/

https://www.theweek.in/news/india/2020/06/13/us-lawyers-group-criticises-safoora-zargar-continued-detention.html

https://thewire.in/rights/safoora-zargar-saboor-ahmad-sirwal-interview


[i]https://www.mha.gov.in/sites/default/files/A1967-37.pdf

[ii]https://indconlawphil.wordpress.com/2020/06/04/imprisonment-by-metaphor-the-safoora-zargar-bail-order/amp/

[iii]https://www.theweek.in/news/india/2020/06/13/us-lawyers-group-criticises-safoora-zargar-continued-detention.html

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