Safoora Zargar denied bail under UAPA, on grounds for blocking a road

The court has held that the action of blocking a road during anti-CAA, NPR-NRIC protests brought the “city to its knees” and also led to violence

Safoora zargar

Safoora Zargar, a Jamia Milia Islamia student who is also into the second trimester of her pregnancy, has been denied bail by a Delhi court. The Order was passed by the additional sessions judge on June 4. She has been charged under the Unlawful Activities Prevention Act (UAPA) for allegedly conspiring to allow the north east Delhi riots of February2020 to breakout and has been in custody since April 10, close to two months now.

The Additional sessions Judge Dharmender Rana of the Patiala House Court who was hearing the bail application held that there was prima facie that there was conspiracy to “at least blockade the roads.” The possible blocking of a road (in protest) became the basis of denial of dundamnetal freedoms (bail) to a student who is about five months pregnant.

The applicant’s contention was that she was merely involved in peaceful protest against the Citizenship Amendment Act (CAA) and that the stringent provisions of UAPA do not apply here simply because she holds divergent view on a legislation and disagrees with the government. She denied that her speech, delivered a day before the violence broke out (about 4 p.m. on February 23 ) that she is alleged to have instigated, was inflammatory or incited violence in any manner.

Strong arguments were also made by Sarfoora Zargar’s legal team against the applications of sections of Indian criminal law amounting to sedition in this case. It was argued that in order to attract charges of sedition, there must be material to show that act is of such a nature that it would or have a tendency to create disorder or disturbance of public peace by resort to violence. It was asserted by the counsel for the applicant that violence constitutes the gravamen of charge for unlawful activity, and no acts of violence have been attributed to her.

It was also pointed out that she had been granted bail in another FIR (criminal complaint) which is based on the same facts but her liberty has been severely curtailed by registration of this FIR. Reliance was placed on a Supreme Court’s judgment in TT Anthony vs. State of Kerala (2001 6 SCC 181) that has strongly disapproved of double jeopardy in complaints, that is in prosecuting a person twice for the same alleged offence. The Court however accepted in toto the vehements made by the additional public prosecutor for the state. While advocates, Trideep Pais, Ritesh Dhar Dubey and Sanya Kumar appeared for the student activist and accused, Irfan Ahmed appeared for the state.

Section 2(o) of the UAPA states that “an act which causes or is intended to cause disaffection against India amount to unlawful activity”. The term “disaffection against India” has not been statutorily defined and hence the court prescribed to the view that “any activity which has a tendency to create a disorder or disturbance of law and order to such an extent that the entire city is brought to tis knees and the entire government machinery is brought to a grinding halt, such an activity would obviously be treated as an unlawful activity within the meaning of section 2(o) of UAPA.”

As pointed out byLiveLaw, the court ignored the evolution of jurisprudence of sedition and anti-terror laws about conditions of ‘overt acts’ and ‘imminent violence’. The Supreme court in its precedents has held that mere speech or statements without any over violent act or incitement of imminent violence will not amount to offences against the state. Further, the court also failed to apply the ‘test of imminence’.

The doctrine of test of imminence is borrowed from American jurisprudence. It is termed as the litmus test for free speech and was followed by the Supreme Court in Arup Bhuyan v. State of Assam (2011). Also known as the Brandenburg test, it requires that in order to punish the speaker, the speech should be directed to inciting or producing imminent lawless action, and likely to incite or produce such action. This was completely ignored by the court.

Further, apart from relying on the accused’s “conspiracy to block roads”, the court also took support of charges of causing wrongful restraint and unlawful assembly as the ground for denial of bail. Without going into anymore details on the offences or the evidence, allegedly committed by the accused, the court said, “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.”

The court, while explaining the liability of the applicant despite of no commission of direct violence stated, “even if no direct violence is attributable to the applicant/accused, she cannot shy away from her liability under the provisions of the said Act. 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.”

The Supreme Court has, in the past, had some starkly contrasting views than those of the sessions judge. In S. Rangarajan Etc vs P. Jagjivan Ram (1989), the apex court while dealing with freedom of expression and its anticipated dangers held thus,

“Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”.

Sarfoora Zargar’s case is another stark reminder of the grossly disparate and discretionary manner in which bail is granted in some cases and denied in others. It is also reflective of the increasingly opporessive use of sections of the law like sedition and UAPA to stifle dissent and free speech. Zargar’s two month long wrongful confinement has drawn strong criticism within India and internationally with several campaigns led even during the lockdown to petition her release.

The complete order can be read here.






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