The American Bar Association’s Center for Human Rights released a preliminary report on the continuing detention of Safoora Zargar, saying that her detention does not appear to meet international human rights standards. 

Safoora Zargar, a Jamia Milia Islamia student, is under pre trial detention since April as she was charged under the Unlawful Activities Prevention Act (UAPA) when the anti-CAA protests that she was a part of, turned violent.

Zargar’s case and her detention

Zargar was arrested on April 10 for her participation in the Delhi protests. Her detention was challenged in court on the ground that the FIR does not mention her name. SH ewas granted bail on April 13 citing “her pregnancy, health condition, and the directives issued by the Indian Supreme Court on decongestion of prisons during COVID-19” as reasons for the decision. She was, however, immediately slapped with charges serious charges under UAPA, for offences which are non bailable and under a law which has been subject to misuse and is termed as a ‘draconian’ law by many critics.

She was again denied bail on April 21 and her detention continued without any justification being given for the same. Third time was not a charm either; on June 4, once again she was denied bail on the grounds for “conspiracy to block roads”, wrongful restraint and unlawful assembly. the court while denying bail, said in its order, “from the material available on record, one cannot ignore the case of the prosecution that the accused persons have conspired to cause disruption of such an extent and such a magnitude that it would lead to disorderliness and disturbance of law and order at an unprecedented scale.”

India’s international commitments

The report points towards international treaties that India is a party to, that have not been followed in Zargar’s case.

The International Covenant on Civil and Political Rights (ICCPR) states that “it should not be the general rule that persons awaiting trial shall be detained in custody.”

The UN Human Rights Council, in a 2014 documents, while commenting on Liberty and Security of a person, has clarified that “detention pending trial must be based on an individual determination that it is  reasonable and necessary taking into account all the circumstances, for such purposes as to prevent flight, interference with evidence, or the recurrence of the crime.” It has further clarified that “pretrial detention should not be mandatory for all defendants charged with a particular crime without regard for individual circumstances”.

The UN Working Group on Arbitrary Detention has also interpreted the ICCPR to hold that “any detention must be exceptional and of short duration and a release may be accompanied by measures intended only to ensure representation of the defendant in judicial proceedings.”

The report says, “Given the lack of evidence in the FIR linking Ms. Zargar to acts of violence, it is unclear why alternatives to pre-trial detention were not considered adequate by the court in this case. Regardless of whether Ms. Zargar’s detention was properly justified under normal circumstances, it is likely unreasonable in light of her pregnancy and the risk of contracting the novel coronavirus”.

The United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (also known as the Bangkok Rules) concludes that non-custodial means should be preferred for pregnant women during the pre-trial phase wherever that is possible or appropriate.

The World Health Organization (WHO), in the light of the COVID19 pandemic, also recommended that “priority should be given to non-custodial measures for alleged offenders and prisoners with low-risk profiles and caring responsibilities, with preference given to pregnant women and women with dependent children.” This was stated in the document titled Europe, Preparedness, Prevention and Control of COVID 19 in Prisons and Other Places of Detention (2020).

Zargar’s health conditions

The report also brings forth the argument that Tihar jail is over crowded and the assistant superintendent of the jail tested positive for the virus as also 3 inmates were quarantined for showing symptoms. The report notes that she is at a higher risk for contracting the virus since she is pregnant, also has polycystic ovary syndrome which makes her prone to high blood pressure, all coming under the high risk category for contracting COVID19.

Additionally, the report notes how Zargar has been a victim of slandering on the internet with false and explicit images of hers being shared on social media. The report takes cognizance of Delhi Commission for Women demanding action from the Delhi Cyber Cell against the same and to file charges against these online attackers.

The report states, “Given the lack of clear evidence of criminal conduct, her pregnant condition, and the failure of prosecutors to specifically explain how Ms. Zargar poses a threat if granted bail, Ms. Zargar should be given the opportunity to furnish a bail bond and be in her home with her family until the appropriate time for her legal hearings. The Center urges the Court to uphold India’s moral and legal obligations given the pandemic and order the immediate release of Mrs. Zargar.”

The complete report can be read here.

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