”What is the line of reasoning that would be applicable to a pregnant woman who is in custody?”. Justice Shakdher of Delhi High Court raised this question. This was while granting bail to Safoora Zargar and releasing her from Tihar Jail. She was there for almost two months. Her case raises myriad issues revolving around the legal regime and stands pivotal for analysing our stance on balancing the interests of justice and humanity.
In the backdrop of her case this piece attempts to examine the law revolving around her bail under section 43(D)(5) of the Unlawful Activities Prevention Act, 1967.
Who is Safoora Zargar?
Safoora is a 27 year old researcher at the Jamia Millia Islamia University. As a member of the media wing of the Jamia Coordination Committee she organized peaceful anti-CAA protests. She is presently over six months pregnant.
It is reportedly alleged that she is a part of the premeditated conspiracy that led to the Delhi communal riots. It is further alleged by the Delhi Police that her speeches were Inflammatory. She created a WhatsApp group in relation to this conspiracy and played an active role in the whole matter.
What is the Case of Safoora Zargar?
Safoora’s arrest for the first time was on 10th April, 2020, weeks after the communal riots broke out in the national capital. Her arrest by the Delhi Police Special Cell was in relation to the Jafrabad road-block case. Within three days of her arrest she was granted bail by the magistrate. However, on the very same day her name was added to a different FIR leading to her arrest once again.
What is worth mentioning here is that the second FIR (59/2020) earlier mentioned only the offences under Indian Penal Code, such as rioting, unlawful assembly, etc. Later when the case went to the Special Cell, various other grave offences were also added. Such as sedition, attempt to murder, etc. On 21st April the draconian provisions of the Unlawful Activities Prevention Act, (UAPA) 1967 were also added to the FIR.
What was the issue revolving around her Bail?
In State of Rajasthan v. Balchand, the Supreme Court laid down that the basic rule is bail, not jail, except where there are circumstances suggestive of fleeing from justice or repeating offences or intimidating witnesses and the like.
However, in the present case Safoora’s application for bail has been rejected thrice. The first time was on 18th April when the anti-terror law was not invoked but on 21st April after its invocation the plea got rejected. The second time the plea for bail was moved on 2nd May, but after the arguments in the Court, it was withdrawn. The third application for bail was rejected by the trial court on 4th June, compelling her to move before the High Court. This was the fourth time that the lawyers of Jamia Millia Islamia students moved the Court with an application for bail.
Arguments by the Prosecution
Solicitor General Tushar Mehta, appearing on behalf of the Delhi Police, opposed the bail application on 22nd June. He filed a report stating that as many as 39 deliveries have taken place in Tihar Jail in last 10 years. This shows that pregnancy is no ground to give bail to Safoora. It was further stated that her pregnancy can’t dilute the gravity of her alleged crime under the UAPA. Moreover, as for her pregnancy, she is being given all the adequate medical facilities.
The report submitted by the Delhi Police states that, “There is no exception carved out for pregnant inmate, who is accused of such heinous crime, to be released on bail merely because of pregnancy. To the contrary, the law provides for adequate safeguards and medical attention during their custody in jail.”
Grant of Bail
After opposing the bail application, Mehta stated that that the Delhi Police had no objection to her release on ‘humanitarian ground’. He further stated that the same should be done without going into the merits of the plea and without considering this as a precedent. Thus on 23rd June 2020 Safoora was finally granted bail on certain conditions by the Delhi High Court. The conditions for her bail included:
- Furnish a personal bond of Rs. 10,000;
- No travel without permission. This means that in case she wishes to travel outside Delhi for any purpose, then the permission needs to be taken from the concerned Court;
- No influencing the witnesses;
- No engagement in activities for which she is being investigated;
- Get in touch with the investigating officer in every 15 days.
Background of UAPA, 1967
Events such as separation of a radical section of Communist Party of India from CPI; death of PM Lal Bahadur Shastri under mysterious circumstances in Uzbekistan; creation of Naxalbari in 1967 created a wave of unprecedented situations in the nation. The Unlawful Activities Prevention Act, 1967 was thus enacted by the Congress in light of a socio-political backdrop in the country.
The Terrorist and Disruptive Activities (Prevention) Act [TADA] was enacted in 1985 and the Prevention of Terrorism Act (POTA) was brought in the year 2002. It was however felt that while UAPA failed to cover terrorism in its entirety the other two acts, TADA & POTA were too harsh. Thus TADA &POTA were repealed by 2004 but the stringent provisions related to terrorism under these acts were retained in the UAPA.
Bail Provisions under UAPA, 1967
In 2008 the UAPA Amendment Act vide section 12 inserted sections 43D (5)-(7). These provisions dealt with bail for terrorist acts. When the new Cr.P.C. was introduced in 1973, bail provisions under it were made applicable to UAPA as well. In State of U.P. through CBI Vs. Amarmani Tripathi eight conditions were laid down in respect of post-arrest bail. These conditions were to be taken into consideration while deciding a bail application. However, special statutes like UAPA have additional restrictions on grant of bail. This makes the bail provisions under such act harsh and severe.
As per the bail provision under section 43D(5), the following points come forward:
- No person accused of an offence punishable under chapter IV and VI of the Act;
- The person should be in custody;
- Cannot be released unless an opportunity of being heard on the application is given to the public prosecutor;
- The bail can be denied if there are reasonable grounds for believing that the accusation against such person is prima facie true.
Thus the approach to grant bail under this statute is different. While the other acts require recording of opinion by the Court in case there are reasonable grounds of believing that the accused is ‘not guilty’ of the offence. The UAPA requires recording of opinion by the Court that there are reasonable grounds for believing that the allegations against a person are ‘prima facie true’.
The order of the Sessions Court states that due to the embargo created under section 43-D (5) of the UAPA, the Court cannot grant bail. It is thus pertinent to point out the second FIR where she was charged under provisions of UAPA, in this regard. Here, she was charged with not only offence of unlawful activity, but also for terrorist acts, raising funds for terrorist act, conspiracy to commit terrorist acts, etc. These additional charges are crucial as they are punishable with severe life imprisonment and death. The Court should have examined the validity of these charges before deciding the application for bail. This is because, under section 43D (5) only offences under chapter IV and VI of the act are subjected to stringent bail provisions. Thus all other offences under the act are not subjected to stringent provisions.
The Sessions Court should have dealt with the matter in a more conscious way. It would have not erred in deciding the application in the first instance. This could have also avoided the national and international outrage and the matter could have been dealt by applying the standard tests for bail.
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