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The Conundrum Concerning Safoora Zargar: The Implication Of Discrediting Selective Court Judgments

Author(s): Isha Mittal (UPES), Aakash Aggarwal (HPNLU)


Facts:

Safoora Zargar , 27, a Sociology research scholar at Jamia Millia Islamia, Delhi, who was being arrested on charges for blocking a road and obstructing traffic on 10th April, has been denied bail for the third time. She was associated with the Jamia Coordination Committee (JCC) which organised several peaceful protests against CAA. She obtained a bail, but was again re-arrested on 13th April under the draconian provisions of the Unlawful Activities (Prevention) Act, 1967. It was said that she is indulged into a conspiracy that sparked a violence in the city, but in reality, she was the part of the peaceful resistance against the discriminatory Citizenship Amendment Act. At the time of her arrest she was pregnant. At the time of the arrest, on 10th April she was arrested by the Delhi Police’s Special Cell in connection with the Jafrabad road-block case (FIR 48/2020). After 3-4 days, she was presented before a magistrate in Mandoli Jail, where she was granted her first bail but on that same day, her name was added to FIR 59/2020. Addition of her name to this list, led to her arrest again and her imprisonment continued. It was noted that FIR 59/2020 was earlier registered under Indian Penal Code (IPC) dealing with rioting, deadly weapons and unlawful assembly. But later, this case was transferred to Special Cell which included other charges like conspiracy to commit murder, attempt to murder, sedition, and promoting hostility between different communities on the grounds of religion. Later on, 21st April, the provisions of stringent Unlawful Activities (Prevention) Act, 1967 (UAPA) was also added to the FIR.

Analysis:

The state imposed several unproportionate punishments that included the risk on the prenatal harms and injuring them by indirectly harming the foetus in the womb of the pregnant resister, who was actually not at fault at all.

Her latest bail application was heard before the Additional Sessions Judge of the Patiala High Court, where the prosecution alleged upon her that she delivered inflammatory speech at Chand Bagh on February 23, 2020, due to which the protests took place in the North East Delhi. On which, the defendant rebutted it and said that according to the FIR violence at Chand Bagh, it started around 1 pm on 24 Feb and Zargar wasn’t present there. Instead Zargar gave a speech at Khureji on Feb 23, but that speech did not incite anyone to start the violence, and her just presence at the protest cannot be a sufficient ground to invoke violence at held at Chand Bagh. To this point, her counsel also added that being a part of peaceful protests against CAA does not amounts to cause “disaffection against India” within the Section 2 (o) of the UAPA. Lastly, her bail was sorted on the humanitarian grounds, as Zargar was over five months pregnant and was also suffering from Polycystic Ovarian Disease. It was also seen that her condition was getting worse, as COVID-19 cases had been reported in all the three jails in Delhi. But she was denied bail for the third time too, when the matter was heard before Add. Sessions Judge of Patiala High Court. The judge dismissed the bail application of Safoora saying, he didn’t find any merits in the plea.

Legal Provisions Involved:

1. Sections of Indian Penal Code of 1860

Initially the FIR was lodged against Safoora under section 147 (rioting), 148 (rioting, armed with deadly weapon), 149 (unlawful assembly) and 120 B (criminal conspiracy) of IPC which were bailable. But later the sections; 302 (conspiracy to commit murder), 307 (attempt to murder), 124 A (sedition), 153 A (promoting enmity between different communities on the grounds of religion) were also added to the FIR.

2. Unlawful Activities (Prevention) Act (UAPA,1967)

Unlawful Activities (Prevention) Act (UAPA,1967) is an Indian Legislation which strives for the effective prevention of the unlawful activities in India. It makes the powers available to the authorities to sabotage the activities directed or performed against the sovereignty and the integrity of India. The National Integration Council formed a committee on National Integration and Regionalisation in way back 1960s to look into the various aspects of putting reasonable restrictions in interests of sovereignty and integrity of the nation. Following the recommendations of the committee, the Constitution (Sixteenth) Amendment Act was enacted in 1963. In order to fulfil the aims of the 16th Constitutional Amendment, the Unlawful Activities Prevention Bill was proposed in the Parliament. The bill was passed by the both houses of the Parliament and gained the assent of the President on 30th December, 1967. Sections 13, 16, 17 and 18 of UAPA were invoked against Safoora Zargar.

Conclusion:

As stated, the confinement of the student activist Safoora Zargar and the stubbornness shown by the courts in offering her the bail have raised several questions on the fundamental rights of our constitution. The obduracy of court in granting bail to student activist Safoora Zargar is ultra vires of the fundamental values of the constitution and a best example to show how one can easily be trapped in the web of false charges and can be the victim of the misuse of the laws by authoritarian powers. Constitution itself grants citizens a fundamental right to peaceful association, a right to freedom of speech and expression under art. 19(1)a, right to live with dignity under art. 21. But the irony is that the authoritarian powers failed to acknowledge the same. The legal provisions are to ensure the proper functioning of the society not to misuse by the authoritarian powers to sabotage civil liberties of the citizens. The arbitrariness of the authoritarian actions in Safoora’s case clearly questions the justice providing system of the world’s largest democracy. This gap has to be bridged to ensure the impartial, effective delivery of the justice to each and every citizen of the country.

©2020 by Center For Policy And Legal Research In India.