“Bail is the rule and jail is the exception.”~ Justice Krishna Iyer.
Under-trial detention is justifiable if there is an assessed risk that an arrested person may tamper with evidence. The judicial authority should explore all possible non-custodial measures, such as bail. This needs to be done before making a decision to remand the accused in custody. In India, under-trial detention is more often the rule than the exception.
In a latest development, American Bar Association (ABA) conducted a preliminary report in this matter. ABA stated that the pre-trial detention of Safoora Zargar does not meet international standards of human rights. The association also urged the Court “to uphold India’s moral and legal obligations given the pandemic.” ABA called for Safoora Zargar’s immediate release given the circumstances of the case.
The national capital saw anti-CAA riots in February 2020, before the imposition of a national lockdown due to the Covid 19 pandemic. Delhi police arrested hundreds of students and political activists for protesting against the Citizenship Amendment Act (CAA). According to the police these speeches led to riots in Delhi. But arrest of one such activist is creating headlines throughout the nation. The person in question is Safoora Zargar.
Safoora Zargar is a 27 year old sociology scholar at Jamia Milia University, Delhi. She was also a media coordinator at the Jamia Coordination Committee and active in the anti-CAA protests. On April 10, police arrested Zargar by the special cell of Delhi police. Police arrested her because of her alleged role in conspiring riots and blocking the road under a Metro station in Delhi.
Bail and Custody
She secured bail in the case on April 13. But on the same day Delhi police arrested her under the draconian Unlawful Activities (Prevention) Act, 1967 (UAPA). Police stated that her speeches led to communal riots in North East Delhi which claimed 53 lives and left hundreds of people injured. It is important to note that the act has provisions for detention lasting 180 days without any charge sheet, and for police custody up to 30 days. Also, it keeps an anticipatory bail out of the question.
In her bail application, Safoora contends that from the material available on record, no act of hers depicts that she incited any violence. And she was exercising her right to protest in peace and freedom of speech guaranteed under article 19 of the constitution. Her counsel also submitted that police arrested Ms. Zargar in a ‘mischievous’ manner in this case by the Special Cell. Her counsel argued that registration of second FIR on the same facts is impermissible. Counsel also pleaded that Ms. Zargar deserves to be on bail on humanitarian grounds as she was 21-week pregnant and suffering from PCOD.
Stance of the Delhi Police
Delhi Police opposed the bail application on the ground that there was enough material available on record to show her involvement in Delhi riots. They also said that the prosecution is correct to involve the provision of the UAPA.
They said any activity which has a tendency to disturb the law and order situation, such activity would amount as an unlawful activity within the meaning of Section 2(o) of the UAPA. It is unclear why alternatives to pre- trial detention while dealing with this case considering the Safoora’s health. But, keeping in mind the medical condition of Zargar, the court had asked the Jail Superintendent to provide adequate medical help to her.
Recommendations by NALSA and SLSA
Recommendations to National Legal Services Authority and other State Legal Service Authorities:
- Judicial supervision of the under-trial population through regular jail visits of district magistrates.
- There is an urgent need to strengthen legal aid services in the state. This can be done by providing competitive salaries to the lawyers and incentivizing their work.
- To ensure that all under-trials are aware about their legal rights, including access to legal aid, and bail.
- All the state governments should ensure that there is implementation of the Home Ministry guidelines. The government should also hold officials accountable who fail to meet their obligations.
Zargar’s detention is unreasonable considering her pregnancy and the lack of evidence against her. Denying bail to Safoora shows that the government of the day can go to any lengths to curb the rights of the people who oppose their decisions. The judge who issued Zargar the order denying her bail also failed to explain how she’s likely to be a threat to the public good. The consequences of pre- trial detention are grave.
Personal liberty is a very precious fundamental right. It should be curtailed only looking at the true nature of the facts and circumstances of the case. In such testing times, one can only have faith in judiciary and hope that justice comes sooner rather than later.
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