American Bar Association: Safoora Zargar’s Detention Against International Law Standards, Set Her Free

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On December 13, 2019, a non-violent protest took place at Jamia Millia Islamia University, New Delhi. The protests were in response to the enforcement of Citizenship Amendment Act (CAA). The Delhi Police charged a 27-year old Ph.D scholar, Ms. Safoora Zargar, by the end of February 2020, under the Unlawful Activities Prevention Act (UAPA), 1976. Several others were also put behind bars. 

Safoora was initially arrested for blocking a roadway but was granted pre-trial bail. However, she was again arrested under the UAPA. The charges levied under UAPA are non-bailable upon proof of a prima facie case against the accused. Around the same time, a nation-wide lockdown was imposed. In the wake of COVID-19, prisoners were being released to prevent overcrowding. 

The Case Of Ms. Zargar 

After Safoora’s initial arrest on April 10, 2020, she was granted bail on April 13. Her FIR failed to mention her by name which became grounds for challenging her detention. Her lawyer, requested for her release citing her pregnancy and health conditions and her susceptibility to catching coronavirus. Immediately after her release, she was charged with non-bailable UAPA offenses and incarcerated. Her counsel again requested for her bail first, on April 21 and then on June 4, both of which were denied. Today, her detention, pre-trial, has been for almost seven months. 

The Preliminary Report 

The American Bar of Association(ABA), Center for Human Rights is one of the world’s largest voluntary professional organizations. It regulates the trial process across the world. It’s main concern is to defend human rights globally. It ensures that fair trial standards are adhered to.  

The ABA reviewed the proceedings of Safoora’s case and released a preliminary report.  It said that International Law permits “pre-trial detention under narrow circumstances which do not appear to have been met in Ms. Zargar’s case”. This also includes treaties to which India is a signatory. Her detention does not meet international human rights standards, it concluded. 

Relevant International Laws 

  1. The International Covenant on Civil and Political Rights (ICCPR) says that persons awaiting trial shall not be detained in custody, generally. 
  2. Detention before trial must be made in cases where there’s a possibility of “flight, interference with evidence or the recurrence of the crime”, simplifies the UN Human Rights Council. Individual circumstances must be considered, it further says. 
  3. Detention must be rare, short-lived and the defendant’s representation assured in judicial proceedings, the UN Working Group on Arbitrary Detention interpreted. 
  4. The United Nation rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules) reasons that pregnant women awaiting trial must be subjected to non-custodial means.
  5. The WHO has recommended that non-custodial measures be accorded to pregnant women and prisoners with low-risk profiles, in the light of the pandemic.

Findings of the Report 

Safoora, currently imprisoned in a congested Tihar Jail, is at a high risk of being infected. To decongest, Tihar released inmates with Cancer, Asthma, TB as reported on April 19. Three inmates were quarantined due to potential exposure to the virus, as on May 11. The assistant superintendent of the jail tested positive for the virus, as reported on May 24. Ms. Zargar’s sister also grieved at an interview that the former was suffering from Polycystic Ovary Syndrome. High blood pressure is one of the effects of the condition, which also increases the chances of contracting the virus. 

Further, Ms Zargar was also a victim to a slanderous online campaign. Her “falsified and explicit” images were being shared online and through Whatsapp messenger. However, the Delhi Commission for women sent notice to the Delhi Police Cyber Cell. The Commission demanded immediate action against the perpetrators. But, the Delhi Police took no action upon the trolls as was reported on May 8. 

There was no connection between Ms. Zargar and acts of violence. The FIR also lacked a clear evidence of criminal conduct. Moreover, her detention becomes arbitrary considering her pregnancy. Not to forget, a higher risk of being infected with the novel virus. The prosecutors also failed to satisfy how she would be a threat upon her release. 

In the light of all the above, the ABA called for Ms Zargar’s immediate release. She should be allowed to furnish a bail bond and given a chance to be with her family, the report asserted. The ABA appealed that India’s moral and legal obligations be upheld and ordered Safoora’s freedom until an opportune time came for resuming legal proceedings.


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