Author: Paikar Mustafa
Law Graduate, 2019
Law College Dehradun, Uttarakhand
The passage of the Citizenship Amendment Act witnessed protests against the law alleged to be arbitrary, discriminatory, and against the fundamental ethics of the constitution. The protests could not be contained by talks or pacific means resulting in the formation of groups, one supporting the Act, and the other discarding it. The mass participation of students, scholars, and the opposition (politicians) ignited the sense of liking and disliking ensuing the violent clashes and confrontation between the police and the citizens. Meanwhile, the vigorous staging of protesters and supporters of the Act led to the riots that took place in North-east Delhi leaving the area of the capital burning and devastated. The aftermaths of riots and the period of lockdown brought about by coronavirus pandemic witnessed several arrests made in connection to the conspiracy of riots. One such arrest was made of the Jamia Milia Islamia University’s student activist Safoora Zargar who was actively participating in the Anti-CAA protests and alleged to have conspired in inciting of riots. The article throws light upon the events that took place since her arrests, her status of bail plea made in this regard, and Courts’ orders. The article analyses the events, laws under which she was booked to reach an unbiased conclusion.
It is no secret that the flames of countrywide protests against the controversial law Citizenship (Amendment) Act engulfed the entire nation. The conception of the protest took place at the Capital of India, which witnessed the participation of the mass of scholars and students against the law alleged to be arbitrary in its operation, as so far it creates discrimination based on religion. The events ensuing the protests were horrendous as the strong policing and forced constabulary was given a free hand to suppress and to straighten the dissents. Jamia Milia Islamia was amongst the few institutions that led the protests against the Act and demanded it is taken back or be struck down by the Apex court on the ground of blatant violation of fundamental rights. The continuing protests and subtle face of authorities towards them wreaked havoc on the minds of people which changed the phase of protests from reticent to hostile. Anti-CAA protests started taking place at several parts of the country including Delhi and the clashes between Anti-CAAand Pro-CAA groups led to riots that erupted in North-East Delhi in February. The incident that lasted up for a week contrived a sense of fear and hatred among people as apparently, the ultimate cause of violent conflict rests on the religious difference. Not only has it widened the line of difference among people but also left a deep scar on the secular fabric of the nation leaving it teetering on the edge of an abyss.
Several arrests and FIRs were made as a result in connection with the protests and the riots. Near about 800 FIRs are reported to have been filed. The accused comes from different sections including students, scholars, residents, politicians, etc. The piece here today discusses the case made against one Safoora Zargar, a student activist from Jamia Milia Islamia University.
CHRONOLOGY OF EVENTS
Safoora Zargar, a member of the Jamia Coordination Committee was booked and arrested under the Unlawful Activities Prevention Act, soon after she was granted bail in the matter relating to another FIR registered at Jafrabad Police Station at New Delhi. She was first taken in custody on April 10 for an alleged conspiracy behind Delhi Riots. The special cell of Delhi Police is handling the case which has undergone more than three hearings till now. The FIR filed by the police shows that she was arrested for an alleged inflammatory speech on February 23 at Chand Bagh in New Delhi from which violence ensued.
It is pertinent to note that 27-year-old Zargar was more than 3 weeks pregnant and is suffering from an illness of Polycystic Ovarian Syndrome and Urinary Tract Infection which makes her vulnerable to the spread of infection especially in the times when a highly contagious virus is at loose.
The first hearing of the case was scheduled on June 4 before the learned Additional Sessions Judge of Patiala House Court wherein the accuser’s counsel pleaded for the grant of bail putting forth the medical conditions of the accused and that a false plot weaved against her to falsely implicate her of the crime under the most stringent UAPA Act. The Court denied the bail to the accused by holding that a prima facie case is being made against her which reveals the intention and conspiracy to at least road blockade and the material on record put forth by the prosecution cannot be completely ignored; the disruption sought to be caused was of a great magnitude and cannot just be dispensed. The Court by holding that the accused is not only liable for her actions but for the acts of the other members involved therein and thereby discarding the plea of the accused of making a judgment of her acts alleged to be committed concerning the offense. However, keeping in mind her medical conditions the Court ordered the sufficient medical conditions to be provided to her timely and readily when needed. The order of the trial court was challenged before the Delhi High Court wherein Delhi High Court sought status report to be filed by Delhi Police Special Cell in charge of investigating the case. The matter was further listed to be heard on June 22 before the Rajiv Shakdher J.
The Delhi Police filed detailed and meticulous reports running 55 pages long stating that Safoora Zargar along with other accused “weaved a web of actions animated by Unlawful object of creating terror and disaffection”.The Police requested denial of bail and status quo to be maintained given that“their program reveals a sinister stratagem”.
Earlier the trial court held the view that during the investigation a larger conspiracy was discernible and if there was prima facie evidence of conspiracy, acts, and statements made by anyone of the conspirators, it is admissible against all. The Court went on justifying the denial of bail with the remark that, “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”.
The police in its report emphasized that the accused hereat stands entitled to no special privilege based on the medical condition and that there have been cases in past where pregnant inmates were detained and there had been successful 39 deliveries in the past 10 years. The Police reported that the factum of pregnancy does not mitigate the gravity of offence committed by the accused and its impact that was calculated to imperil national security and break the civil polity. It was alleged that the intention of the accused was to overawe the government by force thereby, destabilizing and destroying the government in a bid to withdraw the Citizenship Amendment Act and proposed the National Register of Citizens.
The Indian visit of the U.S. President at the time when violence was sparked was refused to be accepted as mere coincidence but a nefarious and sinister plan that was made to attract international media and provoke the minority community to go berserk against the government; to show the government stands Anti-Muslim.
The Court adjourned the matter on the request of the Solicitor General representing the State and asked him to come prepared with the instructions. The counsel for the accused objected to the adjournment while citing the urgent medical conditions of the accused that clashes with the request of liberty on the grant of bail. The court at the hearing on June 23 granted bail to Safoora Zargar on humanitarian grounds after the Delhi Police stated that they had no objection to her being released on humanitarian grounds.
The Court imposed certain conditions along with the personal bond of rupees ten thousand. The conditions inter alia comprised of her not leaving the Delhi-NCR territory without permission and non-interference in an investigation by any means. The court has however carved out an exception of the order granting bail that the order should not be treated as a precedent in the present case or any other case.
Safoora Zargar was booked under the Anti-terror law Unlawful Activities Prevention Act read with offences made out under the Indian Penal Code, most of which are cognizable and non-bailable offences. It is well-settled law that 'Bail' is a rule while 'Jail' is an exception. The judiciary has been cautious to protect the individual liberty of the citizens accused of any offence. The criminal justice system in our nation functions on the well-established jurisprudential principle which says that the accused be considered innocent unless proven guilty. This principle is adequately reflected in the Criminal Procedure and the provisions regarding bail are provided under Sections 436 and 437 of the Code of Criminal Procedure 1973, which deals with Bail in Bailable offense and Non-Bailable offenses, respectively. While it can be claimed as a matter of right in the former case it is purely based on the judicial exercise of discretion of the court in the latter one.
The charges here are coupled with the offences made out under the UAPA Act which signifies that the bail cannot be pleaded solely under regular provisions of the Cr.P.C but the provision of the UAPA governing the grant or non-grant of bail. Since UAPA is special legislation, the provisions therein do not bar investigation, inquiry, or trial as per the procedure laid down in the special Act(Section 4 of Cr.P.C). The UAPA is by nature a stringent Act enacted for the prevention of terrorism and unlawful acts that do not find mention explicitly under any general or special penal law. The provision that comes to the light to make the case for the prosecution for non-grant of bail is section 43-D(5) which embodies the rule as a departure against general principles regarding bail.
Section 43-D(5) reads as:
Notwithstanding anything contained in the Code, no person accused of an offense punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
Hence the preliminary requirement is a bonafide assumption made out by matter put on record that prima facie case exists against the accused and the grounds for probing into the case further exists. The offence for which Zargar was booked under UAPA sprung from Chapters IV and VI denoting the act of terrorism and punishment thereof (Sections. - 13, 16, 17, 18). What remain the criteria for determining the apprehension of the prima facie case is to be judged on the merits of each case since no straitjacket formula could be laid down for this purpose. The High Courts have interpreted the expression differently and their understanding laid down certain conditions that need to be fulfilled to satisfy the existence of a prima facie case. In Jayanta Kumar Ghosh v. the State of Assam[i], the Gauhati High Court while considering the presumption of innocence held that to conclude whether the charges against the accused are prima facie true or not, the Court must form its opinion on evidence collected specifically against the accused. Hence the application of Section 10 of the Evidence Act[ii] requires detailed and careful examination in imposing the liability on the accused for her acts and acts that forms the design of conspiracy in determining the prima facie case against the accused. But again, the authority of the Apex Court is silent in this regard which gives way to each case be judged on its own merits.
The order of the trial court on June 4 denying the bail to Zargar attracted colossal criticism from a variety of masses wherein the order was condemned as “judgment by metaphors” or “reasoning that defeated personal liberty”. The subsequent order of the High Court earned equivalent adulation. It must be kept in mind that cases like the present one has the propensity to get influenced by public opinions, publicity, amount of hatred or support in counts of people. The judiciary should be left aloof of the scathing remarks concerning stages of the case. Whereas significantly, the judiciary acts as a bulwark to protect the individual’s liberty, its insentient attitude is required to ultimately proceed with the trial. While the offense is against the State and the Government it must be observed that State maintains neutrality on the aspects wherever it is to hold its legal obligations against the citizens. The citizenry at last but not the least should give breathing to the accused as well as the representation by not indulging in derogatory comments about the persona or demeanor of the accused which happened recently where Delhi Commission for Women took suo moto action against the slanderous online campaign against the accused. The unfortunate incident that the country witnessed has everyone a victim and perpetrator. The faith in the judiciary must be maintained for it is the verdict of the Court that will have the weight. All attempts and endeavors must be made to prevent any such incident take place in the near future. Lest it be forgotten the dissent in a democratic state is inevitable for the groomed functioning of the government but under no pretext should it be allowed to impede the just functioning of the pillars of the government. While the authorities should not prompt to suppress voices, the freedom of speech and expression must be exercised in a conducive manner.
[i]. (2010)(4) GLT 1 [ii]. things said or done by the conspirator in reference to common design.