By Shikhar Gupta
A Delhi court recently denied bail for the third time to a Jamia Milia Islamia University’s pregnant student, who has been in custody for past 2 months. 27-year-old M. Phil student Safoora Zargar, who was the media coordinator of the Jamia Coordination Committee, is carrying a child and is in the second trimester of her pregnancy. On April 10, more than a month after the violence broke out in Delhi, she was arrested by Delhi Police in connection with the Jafrabad road-block case (FIR 48/2020). Three days later, she was presented before a Magistrate where she was granted bail. On the same day, her name was added to FIR 59/2020. This led to her arrest again and thereby continued her imprisonment. It is noteworthy that FIR 59/2020 was initially registered under the Indian Penal Code provisions dealing with, inter alia, rioting with deadly weapons and unlawful assembly. However, once the case was transferred to the Special Cell, various other charges such as attempt to murder, sedition, and promoting enmity among different communities were added. Finally, on April 21, provisions of the draconian Unlawful Activities (Prevention) Act, 1967 (UAPA) were also added to the FIR.
The Denial of bail to Safoora came not only as a surprise but was also a quite unfortunate incident as it goes against the established jurisprudence of Bail which ensures not to let a person suffer till the time the final verdict comes. Apex court in multiple cases has reiterated that Bail and not Jail is the rule and bail is supposed to be the norm and pre-trial incarceration the exception. The courts are supposed to take a more humanitarian approach towards the accused especially in such matters, where accused is a woman and carrying a child, the responsibility of court increases. The Gujrat High Court established a legal precedent in its 2016 judgment when it granted bail to a woman accused of Abetment of Suicide because she was 5-months pregnant. Judges presiding the case said that the women and her child need ‘full facilities’ during pregnancy. However, it is a clear injustice to Safoora and her child that they won’t be getting those facilities which they deserve.
The Center for Human Rights at the American Bar Association (ABA) released a report on the continued detention of Safoora Zargar and stated that Zargar’s detention is not in compliance with the international treaties to which India is a state party and violates the international human rights.
Another factor which makes the denial of bail to Safoora even more surprising is the fact that this comes at a time when the whole world is living under the threat of novel coronavirus and judiciary has set up panels to consider the release of prisoners on parole to protect them from the spread of Coronavirus. In fact, heinous crime offender like Manu Sharma (Convicted for Murder of Jessica Lal) is released even after the fact that he violated the parole rules during his release in 2017. Another accused in the same 2020 Delhi Riots, Manish Sirohi (who was arrested for possession of arms and is facing trial under the Arms act) was released on parole due to the Covid-19 pandemic.
Consider the case of these two people arrested in the aftermath of the 2020 Delhi riots. One is a pregnant woman, a student with no prior involvement in any criminal activity. She is taken into custody six weeks after the violence had ended. No arms and ammunition were recovered from her at the time of the arrest. The other is a man who the police claims have been supplying arms for the past two years. He was arrested even as the violence in Delhi was on and the police say they recovered five pistols and 20 cartridges from him. Many of the 55 people killed in the violence died of gunshot wounds. While Manish Sirohi is charged only under the Arms Act, even though he was arrested during the riots and found in possession of illegal arms. And on May 6, a Delhi court grants him bail, citing the risk to him of contracting COVID-19. The woman, Safoora Zarfar, despite her pregnancy and the heightened risk of being exposed to the coronavirus in Delhi’s overcrowded prison system ends up getting charged under India’s stringent Unlawful Activities Prevention Act (UAPA) and has been in jail now for three months without the prospect of bail.
The ground for denying bail to Safoora is that under Section 43-D (5) of UAPA, the court cannot grant bail if there are reasonable grounds to believe that the accusations against the accused are prima facie true. This has nothing to do with the merits of the main arguments about whether Zargar was actually present where the police claim she was, or whether she was part of the conspiracy or not, but is purely a function of what the authorities have argued before the court, as acknowledged by the judge. Section 43-D(5) says that a person accused of an offence under Chapters IV and VI of the UAPA (terrorism and belonging to a terrorist organisation) shall not be released on bail if the court, after perusing the case diary and police report, “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” This implies that the ultimate power is in the hands of the judge to determine, whether the requirement of the existence of ‘reasonable grounds’ is met or not.
The fact that the UAPA law has a conviction rate of just one per cent, meaning 99 out of 100 accused who are booked under this act are actually innocent, tells us that denying bail to Safoora Zargar who is a 5-month pregnant woman in the light of the ongoing Covid-19 pandemic is against the idea of justice and liberty enshrined under the constitution. The image of a pregnant Safoora in the jail, for raising her voice against CAA-NRC, is haunting to say the least. But what’s more disturbing is to think about the narrative that the child in her womb will grow up with. As a society and the legal system, we are punishing the unborn child for a crime he/she never committed. Besides, later if it is proved that Safoora is innocent, then how can the legal system of India ever make up to her for the stress, trauma that she had to undergo as a pregnant woman in jail. One wonders, if the value of an unborn child and an expectant mother is so low in India?
