Smital Sawant | SabrangIndia

Indian judiciary on granting bail: Different strokes for different folks?

Sat, 26 Mar 2022 09:39:38 +0000

Image Courtesy:legal60.com

After deferring the bail order thrice, the Karkardooma Court in Delhi denied bail to Dr. Umar Khalid on March 24, 2022. This was in connection with the case related to the alleged larger conspiracy behind the communal violence that broke out in East Delhi in February 2020. Now compare this to how quickly some people who engaged in hate speech and even made open calls for violence with impunity were granted bail… A clear pattern emerges. Even in cases where political dissenters are granted bail it is usually after a long period of incarceration and constant harassment.

The case of Dr. Umar Khalid is prominent because he was arrested by the Delhi Police in September 2020, under the Unlawful Activities (Prevention) Act, on the charge of larger conspiracy to allegedly unleash violence to defame the Indian government during a visit by former US President Donald Trump.Many other activists and political dissenters have fallen victim to this draconian statute which is being regularly abused often to incarcerate politically inconvenient voices, more specially so by the executive in the past 7 years. Here is a list of cases which portray the unfair, biased and discriminatory treatment given to those who dare to stand up for their rights.

Bail denied:

Fahad Shah, Journalist & Editor of Srinagar-based magazineThe Kashmir Walla

Shah was first arrested for his Facebook post on Pulwama encounterin February 2022 for allegedly “uploading anti-national content including photographs, videos and posts with criminal intention to create fear among public and the content so uploaded can provoke the public to disturb law & order,” as per the police. He was granted bail on February 26, but then booked in a case registered in Shopian. When he managed to get bail in that case on March 5, he was arrested again in another case, making it his third arrest in just over a month!

Siddique Kappan, Journalist and Writer

Kappan, a senior reporter, who is also secretary of Kerala Union of Working Journalists (KUWJ) Delhi unit, and also a member of Press Club of India, has been behind the bars for more than 2 years now. The Allahabad High Court had admitted his bail application filed by him seeking to quash the “patently illegal prosecution sanctions” against him under the Unlawful Activities (Prevention) Act (UAPA) but the Court has granted one week’s time to Kappan’s counsel Advocate to file the rejoinder and has listed the matter for March 28, 2022.Kappanhad gone to cover the Hathras horror of the alleged gangrape, and murder of the 19-year-old Dalit woman that had made headlines all around the world. Siddique Kappan never reached the spot from where he had intended to write his news reports. He was arrested by the Mathura police on October 5, 2020, along with three others – Ateeq-ur-Rehman, Masood Ahmed and Alam, and has been detained ever since on trumped up charges. He was arrested on an apprehension that he may cause a breach of peace but later on he was charged under Unlawful Activities (Prevention) Act (UAPA) and till today he has not been granted bail.

Gulfisha Fatima, Student Activitst&Tasleem Ahmed, Activist

The duo was denied bail in the case related to alleged “larger conspiracy” behind the communal violence that broke out in North East Delhi in February 2020. They have been booked under the anti-terror law, UAPA. Additional Sessions Judge Amitabh Rawat dismissed Fatima’s bail plea, saying in view of the charge sheet and the accompanying documents, the allegations against the accused appear to be “prima facie true” and therefore, no relief can be given on account of the embargo under the Unlawful Activities (Prevention) Act (UAPA).Similarly, the judge also dismissed the bail application of Ahmed, saying he was actively involved along with Fatima and others in the protest, before and at the time of the riots in North East Delhi, and the allegations against him also are prima facie true.

Father Stan Swamy, Jesuit Priest & Tribal Rights Activist

An 84-year-old Jharkhand-based tribal rights defender was arrested on October 8, 2020, by the anti-terror National Investigation Agency (NIA) in connection with the Bhima Koregaon Maoist conspiracy case and died at a Mumbai hospital while in judicial custody in July 5 2021, while awaiting bail. Reports have suggested he was ill-treated in jail. As per the findings of The UN Working Group on Arbitrary Detention, “Father Swamy’s arrest and detention lacked a legal basis.” Even the Indian government has not refuted these allegations against its treatment of Fr Swamy who “had fully cooperated all along in the investigation and was not viewed as a flight risk or as a person who would interfere with the legal process.” His custodial death, it said, was a “failure” on the part of India’s government and will “forever remain a stain” on India’s human rights record.

Hany Babu, Delhi University Professor and Kabir Kala Manch members

Judge Dinesh E Kothalikar of a Mumbai Special Court denied bail to them stating, “There were reasonable grounds for believing that the accusations were prima facie true.” Kabir Kala Manch was one of the 250 Dalit and human rights organisations that participated in the Elgar Parishad, an event that took place in Pune city on December 31, 2017, a day before violent clashes broke out between Maratha and Dalit groups near the village of Bhima Koregaon. On July 28, 2020, Hany Babu, Associate Professor at Delhi University (accused no.12) was arrested for multiple alleged offences punishable underUAPA.He was accused of being a member of CPI (Maoist), deemed a terrorist organisation under the first schedule of Unlawful Activities (Prevention) Act (UAPA), and was allegedly in correspondence with the members of CPI (Maoist). Members of Kabir Kala Manch were arrested by the NIA on the accusation for the commission of offences punishable under IPC and UAPA.

Bail granted

Ashwini Upadhyay, BJP Leader & Supreme Court Lawyer

On August 8, Upadhyay was part of a rally in support of the Uniform Civil Code at Jantar Mantar. Many in the gathering raised calls for violence and massacre against the Muslim community shouting “Jab M***e Kate Jaenge Ram Ram Chillaayenge.”The derogatory slur M***e, is a reference to Muslims often used for inciting hate against the community, especially in Hindi speaking North India. These crowds chanted that Muslims will be forced to say “Ram Ram” while they are hacked to death. A clear call for violence against the community. He was arrested with five other people on August 10 for raising communal slogans. But just a day later, he was granted bail by a Delhi Court on a bond of Rs. 50,000. “As far as the offence u/s 153A (promoting enmity between different groups on grounds of religion, race, etc) of IPC is concerned except for mere assertion, there is nothing on record to show that the alleged hate speech to promote enmity between different groups was done in the presence or at the behest of the accused,” the order reportedly said.

Preet Singh, Organiser of the Jantar Mantar event

A lower court initially denied him bail. As previously reported by SabrangIndia, the Metropolitan Magistrate UK Jain watched the video footage of the sloganeering, and observed that accused Deepak Singh and Preet Singh were seen together making “scathing remarks which are undemocratic and uncalled for from a citizen of this country where principles like Secularism hold the value of basic feature imbibed in the Constitution.” But Singh was granted bail by the Delhi HC on just after a week of his arrest in connection with the raising of anti-Muslim threats calling for violence against Muslims in the forms of slogan at a rally in favour of a uniform civil code at Jantar Mantar. He reportedly justified his action saying we was “demanding Hindu Rashtra not promoting enmity”. Without indulging in the issue of whether or not Singh was involved in hate speech, the court noted in its order that as per the video footage and the call records of Singh, he had left the spot at around 2:00 P.M., where after the main provocative words/slogans were shouted by the co-accused at around 4:00 P.M.

BhupenderTomar (akaPinky Chaudhary), Hindu Raksha Dal President

Chaudhary was granted bail after being arrested in connection of inflammatory and anti-Muslim slogans raised during the same protest as the one attended by Ashwini Upadhyay and Preet Singh at Jantar Mantar in August. Based on the observations drawn by the Delhi High Court in Preet Singh’s case, the court observed that Chaudhary left the spot of meeting at 1:29 P.M and was also not required for interrogation.

Ashish Mishra, son of Union Minister Ajay Mishra

Mishra was granted bailby the Lucknow bench of the Allahabad High Court on February 10, 2022, in connection with the October 3, 2021 Lakhimpur Kheri incident. He was arrested for allegedly mowing down and killing four protesting farmers and one local journalist in Tikonia village of Lakhimpur Kheri district. The timing of his bail was also curious as it was on the same day that the first phase of the Assembly elections began in Uttar Pradesh. The court reportedly observed, “Fully looking at the facts and circumstances of the case, it is clear that as per the FIR, the role of firing was assigned to the applicant (Ashish Mishra) for killing the protesters, but during the investigation it was revealed that no one was hurt by firearms, nor were its marks found on the body of any deceased or injured person.”

YatiNarsinghanandSaraswati, Head priest of Dasna Devi Mandir

Narsinghanand was arrested by Haridwar Police on January 15 in connection with the Dharma Sansad in Haridwar for allegedly making communally incendiary statements. He was denied bail by the Chief Magistrate Court in Haridwar Mukesh Arya who observed, that as per the case diary, the statements made by Narsinghanand had the potential to disturb communal harmony in the area and that it is evident that his statements were inflammatory and could provoke communal disturbances and violence in the area as well. But on February 7, Sessions Judge Vivek Bharti Sharma granted him bail while observing that the offences invoked against him were punishable up to 3 years of imprisonment. The court also considered his criminal history but noted that Narsinghanand had not been convicted in any of the cases against him.

In fact he had be booked in connection with four complaints- two of them regarding Dharam Sansad hate speeches, one relating to objectionable remarks against women and another relating to an assault of a journalist. He has been granted bail in all the four cases and now roams scot-free!

A.G. Perarivalan, convicted for aiding assassins of Former PM Rajiv Gandhi

He was granted bail by Supreme Court even as he was serving a life sentence in connection with the May 1991 assassination of former Prime Minister Rajiv Gandhi. The Bench took into consideration that the applicant has spent over 30 years of his life in prison.

Amitabh Thakur, Former IPS Officer

Thakur was granted bail after 6 months of his arrest for allegedly protecting a rape accused, BSP MP Atul Rai in August, 2021. He was accused of creating false evidence in the case to save Atul Rai. A single-judge bench of Justice Rajeev Singh (Allahabad High Court) stated, “Let applicant Amitabh Thakur be released on bail in FIR no. 309 of 2021, under Sections 120-B, 167, 195-A, 218, 306, 504, 506 of the IPC, police station Hazratganj, district Lucknow, on his furnishing personal bond of ₹20,000 and two reliable sureties each of the like amount.”

Ishrat Jahan, Advocate & Political Activist

She was finally granted bailin March, 2022 after spending a harrowing 25 months behind bars since her arrest in February 2020, on charges of “inciting violence, rioting and attempt to murder” under the Indian Penal Code. After spending a month in judicial custody, Ishrat along with four others were granted bail by Additional Sessions Judge Manjusha Wadhwa on March 21, 2020. The court had noted that the role assigned to Ishrat is that she incited the crowd to remain present at the protest spot as well as raised slogans of freedom, however, no overt act had been imputed to her regarding taking law into her own hands. But on the very same day, she was re-arrested under UAPA charges and remained in jail since then. For a brief period of 10 days, she was released on interim bail on account of her wedding in June 2020. Ishrat had moved for interim bail in November, which had been then rejected by the Delhi Sessions Court.

Chetan Kumar (aka Chetan Ahimsa), Activist and Kannada film actor

He was granted bail after his arrest for allegedly making controversial remarks against the judge hearing the hijab ban case. Kumar had merely reposted a two-year-old tweet, where he had written about when “Justice Krishna Dixit made such disturbing comments in a rape case” and asked if the same judge “determining whether hijabs are acceptable or not in gov’t schools” will have “the clarity required?” Now, the right-wing has been in an overdrive spreading fake news of his possible deportation to the United States.

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Gujarat HC rules on PASA Act, claims Preventive Detention untenable

Mon, 21 Mar 2022 13:30:07 +0000

Image Courtesy:indianexpress.com

On March 21, 2022, the Gujarat High Court quashed the detention of one Mr.Dilip Yadav who was detained under section 3(2) of the Gujarat Prevention of Anti-Social Activities Act (PASA), 1985.

This is not the first time that the Court has ruled against the draconian statute. The Gujarat High Court has time and again warned the state’s police and the detaining authority against the pertinent misuse of this law in force for over three and a half decades. In April 2019, Times of India reported that since the announcement of general elections in 2019, over a period of 31 days, 228 persons were detained under PASA while 48 were externed from city limits. The then Additional Commissioner of Police, Special Branch, Premvir Singh said that 49,423 persons had been detained and 6,866 arrest warrants issued.

In today’s landmark judgement, the High Court allowed the petition and set aside the impugned order of detention passed by the detaining authority.

Petitioner’s argument

The Petitioner submitted that registration of the solitary offence/s under Sections 65-AE, 116-B 98(2) and 81 of the Prohibition Act by itself cannot bring the case of the detenue within the purview of definition under section 2(b) of the Act.

Illegal activity likely to be carried out or alleged to have been carried out, as alleged, cannot have any nexus or bearing with the maintenance of public order and at the most, it can be said to be breach of law and order.

No other relevant and cogent material is on record connecting alleged anti-social activity of the detenue with breach of public order.

It is not possible to hold, on the basis of the facts of the present case, that activity of the detenue with respect to the criminal cases had affected even tempo of the society causing threat to the very existence of normal and routine life of people at large or that on the basis of criminal cases, the detenue had put the entire social apparatus in disorder, making it difficult for whole system to exist as a system governed by rule of law by disturbing public order

Respondent’s arguments

Sufficient material and evidence were found during the course of investigation, which was also supplied to the detenue, indicate that detenue is in habit of indulging into the activity as defined under section 2(b) of the Act.

Gujarat High Court’s Judgement

Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 2(b) of the Act.

As argued by the Petitioner, the Court states that simplicitor registration of FIR/s by itself cannot have any nexus with the breach of maintenance of public order and the authority cannot have recourse under the Act and no other relevant and cogent material exists for invoking power under section 3(2) of the Act.

The judgement cites the decision of the Supreme Court in Pushker Mukherjee v/s State of West Bengal [AIR 1970 SC 852] which clearly lays down the distinction between ‘law and order’ and ‘public order’:

“When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder….The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large….. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act.”

The judgement may be read here:

Some key provisions of PASA:

The law came into force in 1985. The ‘definition’ of offenders who can be charged under this law are vague and easily prone to misuse. The definitions include “cruel person” “dangerous person”, “property grabber”, “unauthorised structure” among many others.

A “cruel person” means a person, who either by himself or as a member or leader of a gang, habitually commits or attempts to commit or abets the commission of an offence punishable under section 8 of the Bombay Animal Preservation Act, 1954.

A “dangerous person” means a person, who either by himself or as a member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under chapter V of the Arms Act, 1959.

Section 3 of the Act gives the government the power to issue a detention order against any person for preventing them from acting in “any manner prejudicial to the maintenance of public order”. Again, public order is widely and vaguely outlined or defined: the explanation to this tern within the law n describes public order being affected if any activities of the offenders is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof, or if (there is) a grave or widespread danger to fife, property or public health.

The amendment

The amendment Bill of 2020 brought cyber offences also under its ambit which meant any person committing offences described under the Information Technology Act can be detained under PASA. Further it also included money lending offences, which included persons engaged by money lenders who threatens or do use force to collect money from people. It also now includes sexual offenders which could mean anyone who commits sexual offences as defined under the Indian Penal Code.

The offences that are being covered under PASA are already offences under some law or the other which means there are already punishments prescribed for these offences but the wider scope of PASA would mean the Police is empowered to practically detain anyone on suspicion of committing of these wide range of offences without due process.

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Delhi Violence: Ishrat Jahan granted bail in wider conspiracy case

Wed, 16 Mar 2022 12:57:54 +0000

Image Courtesy:theleaflet.in

On March 14, 2022, the Karkadooma Sessions Court granted bail to lawyer-activist Ishrat Jahan after 25 months of incarceration. Additional Sessions Judge Amitabh Rawat had reserved orders in Jahan’s bail plea in February this year after extensive arguments had been made by Jahan’s counsel Pradeep Teotia. Special Public Prosecutor Amit Prasad appeared for prosecution.

Ishrat Jahan’s bail application was granted in FIR 59/2020 which alleges a larger conspiracy in the Delhi violence that broke out in February 2020. Jahan was arrested on February 26, 2020, and has been held in custody since then. This was a case under the controversial Unlawful Practices (Prevention) Act (UAPA), and was the second case slammed against dissenters and activists targeted in the case. It is noteworthy that Jahan,a Congress councillor, had vociferously protested the Citizenship Amendment Act (CAA)and was active in leading the protest at Khureji, Delhi.

The bail order imposes the following conditions:

The accused shall neither leave the jurisdiction of NCT of Delhi without prior permission of the court nor shall she indulge in any kind of criminal activity;
She shall also not tamper with any evidence or contact any witness;
She will cooperate in the investigation and shall not indulge in any activity influencing the investigation;
She shall attend the court on every date of hearing or as directed by court;
She will not indulge in any activities for which she is investigated/tried during the period of bail

Brief background of the case

Ishrat was arrested initially on February 26, 2020, on charges of “inciting violence, rioting and attempt to murder” under the Indian Penal Code. After spending a month in judicial custody, Ishrat along with four others were granted bail by Additional Sessions Judge Manjusha Wadhwa on March 21, 2020. The court had noted that the role assigned to Ishrat is that she incited the crowd to remain present at the protest spot as well as raised slogans of freedom, however, no overt act had been imputed to her regarding taking law into her own hands.

On the same day, she was re-arrested under UAPA charges and has remained in jail since then. For a brief period of 10 days, she was released on interim bail on account of her wedding in June 2020. Ishrat had moved for interim bail in November, which had been then rejected by the Delhi Sessions Court.

In December, Ishrat moved an urgent application before the Sessions court alleging harassment and beating from her fellow inmates inside Mandoli jail. The court directed the Jail Superintendent to ensure Ishrat’s safety and security, and also asked the authorities to file a report on this matter on December 22, 2020, accepting that Jahan fears for her life.

Making the argument on Ishrat Jahan’s behalf, advocate Teotia had added, “They have created a fear amongst people. She has been a lawyer. She was a young political person. She has a brilliant acumen. I was victorious from a ward where Muslims were less in number. Both the sects had given vote to her. No Muslim had even won from the said ward.” He further said, “She was a popular lady. They have no single iota of evidence regarding her involvement in the conspiracy. There has to be something.”

Arguments put forth by the prosecution against Ishrat Jahan’s bail

The prosecution argued that Ishrat’s role in the conspiracy must be taken together with the other accused persons and not individually.
A connection is drawn between the Anti-CAA protests in Khureji with the Communal riots in North- East Delhi stating that the creation of 23 protest sites were not organic in nature rather they were planned.
There have also been repeated attempts to draw a connection between Ishrat Jahan and other accused persons in the Delhi riots on the basis of 1097 calls and SMSs between Ishrat and Ammanullah
The prosecution alleges that the sole purpose of the Anti-CAA protests and Delhi riots was to defame the government internationally as also destabilise it.
Ishrat Jahan is alleged to be a contributor to the Delhi riots for making provocative speeches in Khureji.
The prosecution also alleges that the suspicious funds in Ishrat Jahan’s account were used for protests and procuring weapons for the riots.
The prosecution alleges that Ishrat Jahan is a co-conspirator and insinuates her being linked to organisations or incriminating Whatsapp group which plays a role in the entire conspiracy such as Muslim Students of JNU (MSJ) or Jamia Coordination Committee (JCC) or the four Whatsapp groups created by JCC, Pinjra Tod, Students of Jamia (SOJ) or Alumni Association of Jamia Milia (AAJMI) or Delhi Protest Support Group (DPSG).

Arguments put forth in the favour of Ishrat Jahan’s bail

The counsel stated that arrest of the accused in present FIR leads to “double jeopardy” because of previous FIR No. 44/2020.
Then the counsel stated that Section 43D UAPA only puts restrictions but is not an absolute bar to the grant of bail and there is no cogent material to prima facie disclose commission of a terrorist act or conspiracy or an act preparatory to the commission of a terrorist act.
The counsel also alleged that Ishrat Jahan has no deadly weapon or arms, reading material propagating violence were from her.
The counsel claimed that Ishrat Jahan has been falsely implicated in this case out of political vendetta.
The counsel dismisses that Jahan was a member of any banned group or organization or any Whatsapp group or a terrorist organisation that caused the violence and there is no video footage or electronic data or recoveries to prove that she incited the public or caused “terror” as claimed by the prosecution.Instead, the counsel claims that the video footages played in the court Jahan can be seen requesting people to remain peaceful and abide by the law.
The counsel also turns down the allegations made about Jahan’s connection with Amanatullah Khan to form Jamia Awareness Campaign Team (JACT).The counsel states that only 132 calls have been recorded to be made between Amanatullah and Ishrat Jahan as opposed to the prosecution’s allegations of 1097 calls and messages. It further states that out of those calls, 29 calls are zero second calls and there is no proof of incriminating messages that could establish conspiracy regarding riots.
The counsel denies prosecution claims about connections between Ishrat and Devangana as there is no evidence to establish the same. The only chat, the counsel admitted, is between Jahan and co-accused Tasleem, which are not ‘incriminatory’.
The counsel argues that the accused had only conducted peaceful protest against the CAA at Khureji site which was not banned and where no riots took place.
The counsel also claimed discrepancies in the witnesses produced by the prosecution and stated that they were either false or cannot be trusted.
Regarding Ishrat Jahan’s bank account, the counsel argued that her passbook indicates the same of pattern of expenditure as it was before the period in question.
The counsel also contended that even when Ishrat was out on interim bail in June 2020, she did not influence any witness or hamper the investigation
It was also argued that the Right to Protest is a fundamental right guaranteed under the Constitution of India and that no complaint of any kind of criminal activity had been moved against any of the anti-CAA protestors, besides her.

Grounds for granting bail

Quoting section 43D of UAPA, the Court stated that as per the section, there should be reasonable grounds in the court’s opinion for believing that accusation against the accused is prima facie true. Therefore, apart from the general conspiracy and applicability of UAPA, the Court took into consideration the material against Ishrat Jahan and drew the following conclusions:

Ishrat Jahan is not the one who created the idea of chakka-jam;
She is not a member of any of the organizations or incriminating Whatsapp group which plays a role in the entire conspiracy;
She is not a member of Muslim Students of JNU (MSJ) or Jamia Coordination Committee (JCC) or any of the four Whatsapp groups created by JCC, or Pinjra Tod, or Students of Jamia (SOJ) or Alumni Association of Jamia Milia (AAJMI) or DPSG;
Ishrat Jahan was only involved in the protest site at Khureji, Delhi which is away from North-East Delhi where the horrendous riots took place in February 2020 and the two places are not even contiguous;
Even though the Court accepts that she had connectivity with the other accused persons, it considers the fact that she was neither physically present in North-East Delhi for riots nor was she part of any group, organization or Whatsapp groups or her name cropped in flurry of calls or in any CCTV footage or in any of the conspiratorial meetings;

Therefore, taking a wide view of Ishrat Jahan’s role in the entire conspiracy, the court allowed the bail application despite the embargoes contained in Cr.PC and UAPA. The Court briefly mentionedthatthe allegations of her provocative speeches at Khurejicontributing to the violence in North-East Delhi and the allegations of suspicious funds in her account used for the purpose of protest would be dealt in the due course of the court proceedings.

The Court’s order may be read here:

Why is UAPA known as a draconian statute?

The Unlawful Activities (Prevention) Act (UAPA), which after amendments made in 2004 and 2008, introduced acts of terrorism, funding terrorist activity and conspiracy to commit acts of terror into its ambit (the law dates back to the 1960s), has been regularly abused since then, often to incarcerate politically inconvenient voices, more especially so by the executive in the past seven years.

Ishrat Jahan was charged under the draconian UAPA. Sections 13 (Punishment for unlawful activities), 16 (punishment for terrorist act), 17 (punishment for raising funds for terrorist act) and 18 (punishment for conspiracy) of the UAPA were also added against her by the Delhi Police.

The main reason why UAPA is known as a draconian statute is because the proviso of Section 43-D of the Act states that if it is not possible to complete the investigation within the stipulated period of 90 days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of 90 days, extend the period upto 180 days.

Hardships faced by Ishrat Jahan in Jail

In November 2020, when Ishrat moved for interim bail which was rejected by the Delhi Sessions Court, Ishrat’s lawyers had argued that in October, 2020 she had taken a fall in the bathroom where she sustained spinal injuries. She was already suffering from spinal ailments but since she was in jail, she had not been receiving any proper treatment and that aggravated her back pain. Jahan’s migraine was also getting out of hand and in addition to this, she also developed high blood pressure and anxiety. Her lawyers had argued that she is a law-abiding citizen and that due to Covid-19, she should be granted bail.

The State objected to her bail plea and told the court that Jahan had tested negative for Covid-19 and that the jails were being regularly sanitised. They also submitted that the situation was “totally under control” and that she had been receiving proper treatment in jail for her “minor health issues”.

Additional Sessions Judge, Amitabh Rawat, who was hearing her case, agreed with the State and found no cogent reason to enlarge her on interim bail on medical grounds. He said, “the applicant is complaining of cervical, spine injury/lower back pain, migraine and high blood pressure. There is no medical emergency shown by the applicant. Moreover, as per the report of the Jail Superintendent, Tihar Jail, all the necessary protocols regarding Covid-19 related precautions are being taken and the situation is totally under control. There is no Covid scare inside jail. The applicant is also being given proper treatment for her minor health issues and her condition is stable.”

In December 2020, Ishrat moved an urgent application before the Sessions court alleging harassment and beating from her fellow inmates inside Mandoli jail. Her lawyer Pradeep Teotia contended that this was not one isolated incident and that she had been facing regular discrimination and beatings at the hands of other inmates.Her family had alleged that Ishrat had been attacked, her clothes torn, head smashed against the wall several times. Her mental, emotional and physical health had been affected under such circumstances.

According to an Indian Express report, Ishrat had told the court that this was the second incident in a month. “In the morning today at 6.30, they (inmates) beat me badly and abused me verbally. One of the inmates even slit her hand so I’m punished on a false complaint. Fortunately, jail officials did not listen to them. I have given a written complaint. They keep calling me a terrorist. They also demanded money from me in the canteen,” she was quoted saying by the IE.

ASJ Rawat had orally observed, “She (Jahan) seems to be in a state of utter fear. Please talk to her immediately and understand the situation. File a detailed report about steps taken to allay her apprehension and fear. Take all necessary steps, take immediate steps. I don’t want to hear that the accused was further harassed by her inmates or anybody else because she complained. I do not want to hear that the present accused is harmed in any way,” as per the IE report.

The other accused in the Delhi Riots case had also been facing similar discrimination inside jails, recorded Judge Rawat. Further, the court directed the Jail Superintendent to ensure Ishrat’s safety and security and also asked the authorities to file a report on this matter on December 22, 2020, accepting that Jahan is fearful of her life.

According to her sister Sarwer, Ishrat had been “very active and healthy all throughout” however the “grave trauma and stress of this case being falsely put on her she has become a patient of high BP and other psychological health related issues inside the jail.” Ishrat had been asking for medicines, however, her sister says all she had been given in jailwas a “a paracetamol for all issues.” Her sister also stated that she was confined to the barrack due to the Covid-19 restrictions inside the prison and there was no ‘time out’ given even for an hour in 24 hours to step outside for fresh air. Her family had feared that the isolationand lack of movement would aggravate Ishrat’s health problems. Sarwer shared that even in the peak summer, the cell had coolers placed, which were ineffective as they had no water supply. The drinking water dispensers were kept in the sun, and inmates had no access to cool water in the summer.

Not one to be sitting idle even under trying circumstances, Ishrat, had started teaching yoga to women lodged with her in the barrack. She spent her whole day doing yoga, reading a few books and the Quran. Though there have been many moments, when tears have flown as freely from her eyes, as the prayers did from her lips. For Ishrat, as it is for all political detainees, the time she spent in jail was a massive punishment in itself. Outside the jail, her family, and an extended family of friends and well-wishers who underwent a similar trauma. Her widowed mother, her sister, and her husband now release a sigh of relief as she has been granted bail after the 25 months long wait.

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