Image Courtesy:barandbench.com
The Delhi High Court has, on Thursday, June 18, sought a status report from the Delhi Police in Jamia student, Safoora Zargar’s bail plea in relation to the case registered for the north-east Delhi riots, BarandBench.com has reported. The matter was heard by a Single Judge Bench of Justice Rajiv Shakdher issued notice to the Delhi Police and listed the matter for hearing on June 23.
Safoora Zargar, a post graduate student and Media Corodinator of the Jamia Corodination Committee (JCC) is 23 weeks pregnant, was arrested by the Delhi Police earlier this year on the allegation that she delivered inflammatory speeches on February 23 at Chand Bagh, which led to violence and rioting in North East Delhi. Hers has been one of the most high profile arrests with the police taking vicarious advantage of the lockdown.
This arrest was made soon after Zargar was granted bail in another FIR registered at Jafarabad Police Station in connection with the riots. Her bail plea was rejected by the Sessions Court earlier this month after it opined that there was prima facie evidence to show that there was a conspiracy to at least blockade the roads.
The Sessions Court had observed that any activity, which had the tendency to create disorder or disturbance of an extent, which brings the entire city to its knees and the entire government machinery to a halt, as in the present case, would be treated as an unlawful assembly under Section 2(o) UAPA. The court had concluded that there was prima facie case against Zargar and in view of the statutory embargo under Section 43D (5) UAPA, bail could not be granted.
Background
Sarfoora’s arrest has raised voices of protest nationally and internationally. In a widely publicised report, dated June 2020, the American Bar Association asks courts to uphold India’s moral and legal obligations and release Safoora Zargar and deemed deemed her detention to be in contrast with international human rights standards. 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 “pre-trial 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 Centre urges the Court to uphold India’s moral and legal obligations given the pandemic and order the immediate release of Mrs. Zargar.”
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