Safoora Zargar Case: No Need for “Humanitarian Grounds” when Bail is Her Right

Safoora Zargar, a 27 year-old student of Jamia Milia Islamia and an accused in the Delhi Riots conspiracy, was finally granted bail on her fourth try by the Delhi High Court after she was arrested in the middle of the COVID-19 lockdown by the Delhi Police. While her bail had been vociferously opposed in the Patiala House Court, as well as in the Delhi High Court till a day before, in a sudden change of heart, the Solicitor General, Mr. Tushar Mehta, appearing on behalf of the State, submitted that the State agreed to release Safoora on bail on “humanitarian grounds”, as she is 23 weeks pregnant, subject to certain conditions.

Some of these conditions include not indulging in activities she is being investigated for, refraining from hampering investigation, keeping in touch with the investigating officer through a phone call every fifteen days and seeking permission of the Court before leaving Delhi for any purpose.

The State’s agreement to grant Safoora bail on “humanitarian grounds” precluded the Court from assessing the matter on merits and examining the order of the lower court. While many regard this as justice having been served, it obfuscates the glaring fact that bail was always her right and its denial to her three times, particularly in the middle of a pandemic, was a gross violation of her human and fundamental rights. 

The Right to Bail

The jurisprudence of bail was best expounded by Justice Krishna Iyer in State of Rajasthan v. Balchand, where he stated that the rule was “bail, not jail”. In our country, bail is a matter of right unless there are circumstances to suggest that the course of justice would be thwarted by the grant of bail. The rationale for this is that in criminal law, an accused is “innocent until proven guilty” by a court of law and a pre-trial incarceration would negate this foundational principle on which our criminal justice system is built.

The UAPA Exception

One of the few exceptions to the rule of bail is found in Section 43D(5) of the Unlawful Activities Prevention Act, 1967 (UAPA), which states that the Court can deny bail to a person accused under Chapter 4 or Chapter 6 of the Act, if it is of the opinion that there are reasonable grounds to believe that the accusation is prima facie true, upon perusal of the case diary or the report filed by the Police under Section 173 of the CrPC.

The threshold for the denial of bail set by this provision is extremely high, as not only does the accusation have to be strictly under Chapter 4 or 6 of the Act, which deal with terrorist offences, but the judge must also form a reasoned opinion based on the material available on record that such accusations are prima facie true.

Safoora’s Case: Fallacious Reasoning by the Patiala House Court

It is under this Section that Safoora was previously denied bail, as along with being booked for multiple offences such as murder and sedition under the Indian Penal Code, 1860, she has also been accused of committing and conspiring to commit terrorist acts under Sections 15, 16, 17 and 18 of the UAPA, which fall under Chapter 4. Section 15 defines a terrorist act as an act which threatens the unity, integrity, security and sovereignty of India with the intent to strike terror by using bombs or explosive substances, using criminal force to overawe the government machinery and causing the death of a public functionary inter alia.

However, the accusations against Safoora do not fall within the ambit of Section 15 of the UAPA. The only accusation made by the Delhi Police against Safoora is that of making an inflammatory speech at Chand Bagh on 23rd February due to which riots took place in North East Delhi the next day. They claim that this is corroborated by Whatsapp chats and statements of witnesses. Further, the evidence furnished by them to support their allegation that a conspiracy existed to overawe the government machinery by force comprises seized materials like plastic crates with glass bottles filled with liquid, bricks, stones, empty plastic crates and 3 sling shots.

The Learned Judge of the Patiala House Court relied on this questionable evidence to conclude that there existed a conspiracy to overawe the Government machinery of Delhi and used this to justify the invocation of the UAPA against Safoora and to deny her bail under Section 43D(5), without once demonstrating how her actions, or even of the rioters whom she allegedly conspired with, met the standard of a ‘terrorist act’ under Chapter 4 of the UAPA. Clearly, apart from a misapplication of the UAPA in her case, there was also an improper exercise of judicial discretion.

In Union of India v. Kuldeep Singh, the Supreme Court noted that “when a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discreet”. However, the Learned Judge ignored the provisions of law under Section 43D(5) and failed to apply his mind and strictly scrutinise the evidence, as was expected of him.

Antithetical to Free Speech Principles

Finally, implicating Safoora in a terrorist conspiracy, on the basis of a speech she made at a public protest is in direct contravention to the principles of free speech enumerated under Article 19(1)(a) and judgements of the Supreme Court which lay down the grounds on which restrictions can be placed on free speech.

In Kedar Nath v. State of Bihar, it held that a person’s fundamental right to free speech which can be limited only when there is an incitement to violence. Further, from a reading for Rangarajan v. P. Jagjivan Ram, it becomes apparent that there must be a proximate connection between the speech and the violence, like a “spark in a powder keg”.

However, the Delhi Police has been unable to demonstrate the causal connection between Safoora’s speech and the Delhi Riots. The Patiala House Court too, only found Safoora prima facie guilty of causing a chakka jaam (blocking of a road), which is evidently not a terrorist act.

Considering the above, civil society must accept Safoora’s bail order with reservations. The injustice meted out to her by the misapplication of the law and the improper exercise of judicial discretion, which resulted in her being branded as a terrorist and led to her pre-trial incarceration, remains unrectified. Till the time the Courts acknowledge that Safoora’s bail was wrongly denied by a court of law, justice will remain elusive.

This post was also published at https://thedialogue.co.in/blog/g9SvBAiGfeGJmD7qktc7

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