After eight hours of exhaustive argument in the last two days between the lawyers of Safoora Zargar and the Delhi Police, Zargar was denied bail for the third time in the Patiala House court.
Safoora Zargar, 27, Jamia Millia Student and Anti-CAA protestor who is 21-weeks pregnant has been in custody since April 10 and has been lodged in Tihar Jail after she was arrested for the alleged conspiracy behind the riots which occurred in Delhi in February.
According to the police – “In mid-February, the accused had allegedly planned to hold protests in various parts of northeast Delhi. They had also blocked the road near the Jafrabad Metro station,”
The police told the court that the accused persons were part of the protests against the Citizenship Amendment Act in various parts of the national capital and organising anti-CAA protests in the Jafrabad araa, where the majority of participants were women.
Zargar’s counsel argued that she was only holding legitimate and peaceful protests against the Citizenship Amendment Act in accordance with her constitutionally guaranteed fundamental right to speech and expression. Even assuming the prosecution case to be true for the argument case, there is no ground to invoke the stringent provisions of UAPA, the counsel argued in the alternative.
The counsel also sought bail on humanitarian grounds saying that Zargar was 21-weeks pregnant and was suffering from PolyCystic Ovarian Disorder and urinary tract disorder and given the spread of coronavirus infection, it increases her chances of miscarriage.
The court has asked the concerned jail superintendent to provide adequate medical aid and assistance to Zargar considering her medical condition and pregnancy but denied bail.
Zargar’s lawyers had applied for bail for the first time on 18 April when UAPA was not yet invoked, which was rejected on 21 April after the invocation of the anti-terror law. Then again on 2 May a bail application was moved, but withdrawn after arguments in court. This was therefore the third attempt to get Zargar out of custody.
Rejecting these submissions, the Court denied bail, citing Section 43D(5) of UAPA, which says that bail should not be granted if a prima facie case is made out.
According to an article by livelaw by Manu Sebastian explains that to apply Section 43D(5), the Court should first explain if the case will fall under UAPA, prima facie.-
Based on materials produced by the prosecution, such as whatsapp chats and witness statements recorded under Sections 161/164 CrPC, the Court stated that there is “prima facie evidence to show that there was a conspiracy to at least blockade the road (chakka jam)”.
From this minor strip of prima facie case for road blockade, the order takes off on a fanciful flight to UAPA.
As evident, one can find the usage of a lot of vague terms here, such as “disruption of such an extent..such a magnitude”, “unprecedented scale”. . Are these expressions in reference to the “road blockade” alleged to have been organized by the accused? There is no specific explanation given, forcing one to speculate. Anyhow, the Court abruptly states that this is a ground to validly invoke UAPA, leaving one perplexed if a “road blockade” as part of a protest can lead to UAPA. Shockingly, this conclusion is solely based on the “case of the prosecution”, which has not been tested against the arguments of the accused.
Next, one can see a constrained attempt by the Court to say that the acts of the accused (road blockade!) amounts to “unlawful activity” under Section 2(o) of the UAPA.
Section 2(o) of the UAPA lists three different acts which can become “unlawful activity”. The one which is relevant for this discussion is clause (iii)of Section 2(o), which says an act which causes or is intended to cause disaffection against India amounts to “unlawful activity”.
The Court also employs empty rhetoric by saying- “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”.
This topsy-turvy approach by the prosecution and the court has resulted in prolonging the custody of a pregnant student in an overcrowded prison, amid the threat of a pandemic, making a cruel joke on the constitutional guarantee of personal liberty.