The Delhi High Court, on Tuesday, set aside the Trial court order that had discharged Sharjeel Imam, Asif Iqbal Tanha, Safoora Zargar and eight others in the Jamia violence case. The single judge bench of Justice Swarana Kanta Sharma observed that protests should be peaceful and a protest that endangers others, damages property cannot receive constitutional protection. While framing charges against 11 accused (including Imam, Tanha and Zargar), the court observed that only charges of rioting, unlawful assembly and obstructing the police are made out. The court reached this conclusion after perusing videos and photographs and noted that the accused were part of the violent protests, even though none was seen clearly as indulging in any violent act.

The trial court

The trial court framed charges against Mohd Ilyas (Accused no. 1) and discharged the remaining 11 accused. The court had perused the chargesheets and observed that “the police were unable to apprehend the actual perpetrators behind commission of the offence” and ropes in the accused (who were discharged) as scapegoats. The court further observed that the police acted in a perfunctory and cavalier fashion against the 11 accused (who got discharged eventually by the court).

“Liberty of protesting citizens should not have been lightly interfered with. It would be pertinent to underscore that dissent is nothing but an extension of the invaluable fundamental right to freedom of speech and expression contained in Article 19 of the Constitution of India, subject to the restrictions contained therein. It is therefore a right which we are sworn to uphold,” the trial court said. (Para 7)

The court also said that dissent needs to be given space as dissent is reflective of what pricks a citizen’s conscience.

“In the present case, the investigative agencies should have incorporated the use of technology, or have gathered credible intelligence, and then only should have embarked on galvanizing the judicial system qua the accused herein. Else, it should have abstained from filing such an ill-conceived chargesheets qua persons whose role was confined only to being a part of a protest,” the court had said in its order. (Para 7)

The reason why Mohd Ilyas was not discharged was because there were photographs of him clearly showing him hurling a burning tyre.

Background

The prosecution stated that the police received information on December 12, 2019 that some students/ex-students of Jamia Milia would gather at University to protest against Citizenship Amendment Bill and that they would march towards the Parliament. Hence necessary police staff was deployed there and Gate No.1 was barricaded. The prosecution said that a crowd began gathering there and “Although police had repeatedly urged the gathering to maintain peaceful demonstration, the protesters persisted in raising incendiary and antagonistic slogans against the government and law enforcement agencies”.

They also alleged that the mob threw stones at the police and “despite use of non-lethal methods such as mild force and gas shells to disperse the crowd, the protesters/rioters reportedly moved into the University area and continued their assault on the police”.

The state’s arguments

Before the Delhi High Court, the state raised a grievance that the trial court conducted a mini trial and that credibility of evidence, especially the statements of witnesses cannot be gone into at the stage of framing of charge.

The respondents’ arguments

The respondents primarily submitted that since they have been discharged by the trial court, the state should point out the material defects and illegalities in the impugned order since the trial court has meticulously considered all the evidence placed on record by the prosecution. They also argued that reliance placed on Call Detail Records of the respondents to prove their location at place of incident is of no consequence since all the respondents were either students or ex-students of Jamia and/or were living either in the campus of Jamia or in its vicinity.

They also contended that the prosecution cannot arbitrarily pick and choose people and arraign them as accused from a mob of thousands of persons while levelling no allegations against other persons who were part of the mob.

On framing of charges

The court referred to the law on framing of charges which is dealt with under section 228 of the CrPC. Further, section 227 of CrPC deals with discharge of the accused. The court cited Sajjan Kumar v. C.B.I. (2010) 9 SCC 368, the Supreme Court held that at the time of framing of charge, the Court has to look at all the material placed before it and determine whether a prima facie case is made out or not. “At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible,” the court had held.

The respondents’ individual submissions

For the accused, Mohd. Qasim, Mahmood Anwar, Shahzar Raza Khan and Umair Ahmed, counsel Mr MR Shamshad appeared and submitted that they were at the University but had left before the violence started.

Further, it was argued that accused Mohd Bilal Nadeem was only standing near the barricade. Vis-à-vis these accused, the court saw some video clips, and observed that they were in the first line of the mob, pushing the barricades against the police officers and raising slogans. “They were consciously part of the assembly which had turned violent and consciously did not leave the place of such violence and chose to remain part of it by insisting on going to a curfew imposed area,” the court observed.

Pertaining to Mohd. Abuzar and Mohd. Shoaib, the court observed that the chargesheets do not indicate that they were violent or had damaged property. Thus, they cannot be qualified as rioters, the court held.

Pertaining to Sharjeel Imam, Counsel Talib Mustafa submitted that he only campaigned in favour of peaceful protests and not violence, and he was himself a victim of violence on the day of incident. It was also contended that there was nothing on record to show that Sharjeel Imam was part of the alleged rioting mob on the day of incident as there was no photographs or video or any eye witness to support this. As far as his speech on the same day was concerned, the same a part of a different case.

From his speech however, the court gathered that he spoke about distributing the pamphlets regarding protest, and asked people to be prepared to get beaten up by lathis.

“He can be clearly seen instigating the mob and preparing them for further action, and he says that on 13.12.2019, there were 3000 to 4000 persons gathered at the spot as they had been distributing pamphlets for last two weeks, and thus, it can only be imagined as to how many people could gather on the day of jumma next week. It is, thus, clear that he had common intention and that he was part of the overall intent and object of the unlawful assembly,” the court said (Para 78)

The court said that Imam is student of JNU but his speech at JMI was provocative and indicates he was part of the mob.

Pertaining to Asif Iqbal Tanha, Counsel Ms Sowjhanya Shankaran submitted that no grave suspicion is made out against him and that no allegation of rioting is made against him by the witnesses and that he was not in any videos or photographs either. However, the prosecution showed Tanha’s Facebook post where he admitted he was stopped by the police and detained as well. The court observed that he continued to be part of the unlawful assembly but there is no indication that he indulge din violence or destruction of property.

Pertaining to Chanda Yadav, Counsel Ayush Shrivastava submitted that she was a mere bystander and that she had climbed the barricade out of fear of being run over by a mob of protesters. The court, after perusing the video noted that there was clear distinction between the rioters and bystanders and she was not a bystander. The court cited Lakshman Singh v. State of Bihar (2021) 9 SCC 191 to state that in case of rioting, every member of unlawful assembly is vicariously liable for the acts of the other members.

Pertaining to Safoora Zargar, Senior Counsel Ms Rebecca John stated that she was identified from a video where a person whose is covered is identified as Zargar and her CDR location was not consequential since she was MPhil student at JMI. The witnesses, who were peon and caretaker in the University claimed to have recognised Zargar as the person with the face covered as they had seen her frequently in the premises of the University.

“A person who meets or watches a person day in and day out on a regular basis cannot be said to be not in a position to have identified a person who is wearing a mask since identification can be based also on the physical appearance among several other things. Since two independent witnesses supported the prosecution case that the woman who is part of the violent mob is respondent no. 11, the case of prosecution cannot be thrown out…,” the court said (Para 92).

“Holding at this stage that the independent public witnesses have given false statements will be against the settled principles of law at the stage of charge,” the court said (Para 93)

Only 11 picked from mob of thousands

Considering this contention of the respondents (accused) that they were selectively picked from the mob, the court held,

“Merely because some persons could not be identified and have not been charge sheeted at present does not give a right of discharge to others who have been identified and connected with the offence in question. The non-arrest of several others cannot be a ground for discharge of the present accused persons. Essentially with the mob of thousands of people who were pelting stones at the police force, the making of videos and finding of witnesses can be difficult. Many of them could not have been arrested probably as they could not have been identified and if the present accused persons have their identifications and want to disclose their identity to the Delhi Police, they may do so as they have every right to do that.” (Para 101)

On framing of charges

The court held,

“A person may join unlawful assembly at any point of time when it is in progress and will be held responsible for all he must have done. A previous criminal concert is not essential to be established. In case such intent or participation is reflected from the material on record, the Court will be justified in framing charges against the accused persons.” (Para 115)

The court noted that each respondent had to be treated differently since,

“There are people who have used force and violence while participating. There are those who are consciously participating in the protest when the assembly had turned violent but did not use force. There are those who instigated by their speeches and actions and were present at the spot… Thus, each respondent has been charged according to the extent of his/her role as visible from the material on record.” (Para 116)

The court noted that the videos demonstrated that the mob had turned violent

“Though, in a democracy, there can be no question of dissent being suppressed or fundamental right of freedom of expression by peaceful means being infringed, however, at the same time, there is no place of violent collective action to register one’s anguish against ideological differences or resistance to a Government policy. The video analysis will also reveal that the acts of resistance being presented as normal by the present respondents were not peaceful resistance but violent protest which had turned into riots.” (Para 120)

Conclusion

In conclusion, the court held that while right to freedom of speech and expression cannot be denied, the court had to “decide the present case in light of constitutional and human rights of the individuals qua the offences alleged to have been committed by them and their grievance against their alleged false implication by alleged overzealous and mala fide police practices in this case”. (Para 143)

Disagreeing with the trial court, the court held

“The Court has relied on material which has been discussed in detail and does not agree with learned Trial Court that only the confessional statements which are non-admissible in law were available on record against the present respondents.” (Para 149)

The court held thus:

1. Respondents number 1, 2, 3, 6, 7, 8, 10 and 11 [Mohd. Qasim, Mahmood Anwar, Shahzar Raza Khan, Umair Ahmed and Mohd. Bilal Nadeem, Sharjeel Imam, Chanda Yadvav and Safoora Zargar] are charged for commission of offences punishable under Sections 143 [unlawful assembly]/147 [rioting]/149 [common object in unlawful assembly]/186 [Obstructing public servant]/353 [Assault or criminal force to deter public servant]/427 [mischief causing damage]of IPC and Section 3 of Prevention of Damage to Public Property  Act [PDPP Act], and not under other sections of law mentioned in the chargesheet since there is not enough material against them.

2. Respondent number 4, 5 and 9 [Mohd. Abuzar, Mohd. Shoaib and Asif Iqbal Tanha] are charged for commission of offence punishable under Section 143 of IPC, and not under other sections of law mentioned in the chargesheet since there is not enough material against them (Para 150)

The complete judgement may be read here:

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The post Jamia violence case: Delhi High Court overturns trial court order discharging Sharjeel Imam, Asif Tanha, Safoora Zargar and others appeared first on SabrangIndia.

On February 4, student leaders Safoora Zargar, Sharjeel Imam, Asif Iqbal Tanha, and eight others, were discharged in the crucial 2019 Jamia violence case (FIR No. 296 of 2019). Additional sessions judge, Saket Court, Arul Verma, while discharging these accused, has held that while the Delhi police were unable to apprehend the “actual criminals” they “definitely succeeded in using them (accused) as scapegoats”. The additional sessions judge also admonished the prosecution for presenting “ill-conceived charge sheets,” noting that the police had “arbitrarily selected” some protesters to charge sheet and others (to name) as police witnesses. The other “accused” who were also discharged in this case are Mohammad Qasim, Mahmood Anwar, Shahzar Raza Khan, Mohd Abuzar, Mohd Shoaib, Umair Ahmad, Bilal Nadeem, and Chanda Yadav. Sharjeel Imam was produced from judicial custody at the time of the deliverance of the order and his advocate is Talib Mustafa.

The case going back to 2019 was heard for over a year: while the prosecution reportedly attempted endless delays, by filing multiple charge sheets, the court compelled them to argue on framing of charge. After these arguments were made and responded to, this order in the discharge application

The prosecutor in this case is Madhukar Pandey. Advocate Ritesh Dhar Dubey along with Rohsin Iqbal appeared for Safoora Zargar and counsel Ms Sowjhanya Shankar for Asif Iqbal Tanha while Ayush Shrivastava appeared for Chanda Yadav and Shoaib Khan.

This case is one of many cases against some of these accused but is specifically connected to the incidents of violence at Jamia Milia Islamia University in December, 2019. The FIR alleged offences of “rioting and unlawful assembly” under sections 143, 147, 148, 149, 186, 353, 332, 333, 308, 427, 435, 323, 341, 120B and 34 of the Indian Penal Code (IPC) were invoked in the case.

The police had first filed a charge sheet against Mohd Ilyas on April 21, 2020. A second supplementary chargesheet was then filed against 11 other accused persons, who have been also discharged in the matter. A third supplementary chargesheet was also filed recently on February 1, 2023, while the arguments on the charges were being heard.

The Prosecution case

The prosecution claimed that on December 12, 2019, information was received that students from Jamia Milia Islamia University had issued a call to gather at Gate No.7 on December 13, 2019 and march towards Parliament House. It was alleged that at 10 a.m., the whole South and South-East District police force was mobilised and deployed in the vicinity of the Jamia Milia Islamia University.

At around 2 p.m., a crowd of 700 to 800 people, mostly university students and Jamia Nagar residents, began marching towards the barricades near the Y point of Sukhdev Vihar states the prosecution. The prosecution also claimed that the protesters were ordered to stop and not march towards Parliament as prohibitory orders under Section 144 of the Criminal Procedure Code (CrPC) had been issued, and that Parliament Session had been adjourned sine die.

Protesters, according to the prosecution, were raising slogans against the recently passed Citizenship Amendment Act (December 2019) as well as the Government of India. At gate No. 1, some protestors “forcefully” crossed the first line of police officers guarding the barricades. Further, the prosecution stated that during that particular gathering, some leaders from various political parties, including the Aam Aadmi Party and the Congress, began addressing the crowd and pushing at the barricades.

The crowd was given directives and warnings via loud speakers warning them against marching to Parliament since section 144 was in operation. However, despite this, the rally turned violent, with protestors “smashing through the second line of barriers at Holy Family Road Y Point, Sukhdev Vihar.”

The protesters were allegedly warned again, says the prosecution but instead of retreating, they became more hostile, eventually throwing stones at the police. Mild force and gas shells were used to disperse the gathering after repeated warnings. Following that, the crowd entered the university area and continued to throw stones at the police party. It was also claimed by the prosecution that in order to prevent additional damage to public property and life, a request for outside force was made, and reserve force was dispatched to the scene. After an alleged confrontation of almost 2 hours, the police were able to subdue the aggressive mob. (Paras 2-3 of the judgement)

Arguments by the Prosecution

Special public prosecutor Madhukar Pandey was the counsel for the state. According to his submissions, the accused in this case had been implicated under Section 141 IPC read with Section 149 of IPC. Pandey contended that in the whole of New Delhi District, prohibitory orders under section 144 CrPC were invoked. That was the reason the police of Jamia Nagar had put barricades at Gate no. 3 to prohibit the crowd from proceeding towards New Delhi t. It was further submitted that there were even announcements from loudspeakers asking the crowd not to proceed further. However acting in defiance of both, the accused resisted efforts to maintain law and order and therefore their actions attracted section 141(2) of the IPC.

The prosecutor also submitted that since the crowd crossed the barricades and broke the signposts they are also liable to be punished under Prevention of Damage to Public Property Act (PDPP). He had further submitted that stone pelting had ensued whereby 15 police officers sustained injuries, and hence, Section 308 IPC had also been invoked.

Thus, the prosecution argued that the accused should be held prima facie guilty under Section 141 of the IPC as the police personnel, at the barricades, were legally bound to forbid the crowd from proceeding beyond the barricades and it has been established beyond doubt that the assembly was an unlawful assembly as defined under Section 141 of the IPC. To substantiate the claims made by the state, the prosecution placed reliance on Masalti v State of Uttar Pradesh 1(1964) 8 SCR 133. On the basis of this judgement, the prosecutor further submitted that it was not necessary to link the accused to any overt act as this precedent interpretation only required to establish that the accused persons were part of a larger unlawful assembly. Further, he submitted that the manner and the demeanour of the entire mob required to be interfered with as their object (violence) was clear. Heavy reliance was also placed on the mobile locations of the accused. (Paras 6-13)

Arguments by the accused

Counsel for the accused vehemently refuted the allegations put forth by the prosecution. They submitted that the present case is a fit case where the accused ought to be discharged. On behalf of each of the accused, written submissions were filed and arguments were led, the gist of which were that while the accused could be said to have been part of the gathering at the location stated by the prosecution. there was no evidence to establish, nor even any eye-witnesses who could associate them with the violence that took place.

On behalf of the accused Kashmiri student leader, Safoora Zargar, it was submitted that it is unclear from the charge sheet as to when and how the gathering of students turned into an unlawful assembly. It was submitted that Ms Zargar was not identified in any of the videos, and only a lady wearing a scarf covering her face was kept being identified as Safoora Zargar. It was submitted that the presence of accused in her call data records (CDRs) in the vicinity is she is a resident of Ghaffar Manzil, Jamia Nagar, which is adjacent to Jamia University. (Para 14- xi)

On behalf of other accused Sharjeel Imam, it was submitted that the speech delivered by him on December 13, 2019 was admittedly delivered at around 7:30 pm, much after the alleged rioting. It was also submitted that as per evidence in CDR, he was at the place of occurrence from 1:57 pm to 3:51 pm. However, the case of the prosecution was that the protestors assembled at the place of occurrence only around 3:30 PM. Thus, it was demonstrated that since records showed that the accused left the spot immediately after, in 20 minutes, he was not part of the assembly that turned unlawful later on. (Para 14- v)

Arguments on behalf of accused Asif Iqbal Tanha, were that, as a student of the Jamia Milia University, his presence there is but natural. Apart from his mere presence and his detention at the police station at Badarpur, there is not even an iota of direct evidence viz. photos or videos or testimony of eye witnesses that would establish the complicity of the accused in the commission of the offences made out. (Para 14-iv)

Rationale behind the Decision of the Court

I. Filing of Several Charge Sheets: The Delhi court noted that the prosecution filed first, one charge sheet and three supplementary charge sheets, and that third supplementary charge sheet was filed after considerable arguments on charge were heard, and a day before the conclusion of final arguments in regards to the aspect of charge. The court also noted that no leave of the Court was taken for filing of the same.

II. In the present case, the court held that the second charge-sheet was submitted only on re-consideration of evidence already collected within the earlier charge-sheet. In contrast to this, the court observed that the third supplementary chargesheet reveals that the very same photographs have been filed as evidence, which are already a part of the record. Statements of those witnesses have been re-recorded, whose statements were already recorded in the previous chargesheet.

In short, the court held that the investigative agency has not adduced fresh evidence, rather has sought to present the same old facts in the garb of ‘further investigation’ by filing supplementary charge sheet. The court has commented on this mal practice by the Delhi police in filing not one, but three supplementary charge sheets, with really nothing new to offer. (Para 18-24)

II. Mere presence at a protest site is insufficient to make protesters “accused”:

The court observed that mere presence of persons at a protest site without any evidence of overt acts of violence cannot lead to implication as accused in such a case. The judge also held that the prosecution has ex facie been launched in a “perfunctory and cavalier fashion” against all accused. Further, it held that to allow such persons to undergo the rigmarole of long drawn trial, does not augur well for the due process and the criminal justice system of our country. The court held that in the present case, the memo of evidence filed by the prosecution elucidates the role played by each of the 12 accused while the written submissions filed by all the accused persons allude to the fact that although they were present at the spot, but they were not part of the unlawful assembly.

No overt act or participation in the commission of offences has been attributed to them. The prosecution tried to establish that the witnesses had identified the accused persons on the basis of some photographs. However, no test identification parade was carried out during investigation until filing of the third supplementary chargesheet and that the photographs and videos only demonstrate that the accused persons were standing behind the barricades. There are no eye witnesses either who could substantiate the version of the police that the accused persons were in anyway involved in the commission of the offences. Thus, mere presence of the accused at the spot sans any overt acts, cannot inculpate them, the court concluded. (Para 25-28)

III. No Section 144 CrPc in force at Protest Site: The court observed that it was interesting that though some police witnesses averred in their statements that Section 144 CrPC was in force at that time, no such notification has been placed on record until very recently. During arguments, it was urged on behalf of the state that Section 144 CrPC was in place near Parliament. However, there was no evidence on record to substantiate the same at the time of filing one chargesheet and two supplementary chargesheets. It was only when the third supplementary chargesheet was filed, that the order under section 144, CrPC was produced which only showed that prohibitory orders were in force near the Parliament. Thus, the court held, the fact of the matter is that there was no prohibitory order under section 144 CrPC in force in the area where protests took place. (Para 30-33)

IV. Lack of shared common object among the accused: The court held that there is nothing on record to how, even prima facie, that suggests that the accused were part of some riotous mob. None of the accused herein were seen as brandishing any weapon or throwing any stones etc. Thus, the court prima facie held that there is no evidence qua the accused establishing that they resisted the execution of any law.

The court further observed that the charge sheet fails to elaborate what unlawful common object has been attributed to the accused neither is there any evidence to establish common object or motive among them or with the crowd in general.

With respect to the Masatli judgement, the court delved into the scientific evidence that the state collected, which was the CDR locations. The court observed that the other incriminating evidence put forth by the state was the fact that some of the accused were detained on the spot. Barring the above, there were no eye witnesses who saw the accused persons perpetrate any act of violence or instigation as well as no statement by any of the injured policemen or public witnesses attributing any overt role to the accused persons. The court also held that the accused were sought to be made vicariously liable for the acts of a/the mob. Therefore, the court held that the present case will not be squarely covered by Masalti in as much as all the accused are sought to be made vicariously liable, as no overt act is attributable to them. (Paras 34-40)

Conclusion

When it came to the question of whether the accused persons in this case were even prima facie complicit in taking part in that mayhem, the court’s answer to the said question was an unequivocal ‘no’. Marshalling the facts as brought forth from a perusal of the charge sheet and three supplementary charge sheets, the Court arrived at the conclusion that the police were unable to apprehend the actual perpetrators behind commission of the offence, but surely managed to rope the persons herein as scapegoats. (Para 44)

The court stated unequivocally that liberty of protesting citizens should not have been lightly interfered with and that dissent is nothing but an “extension of the invaluable fundamental right to freedom of speech and expression contained in Article 19” subject to the restrictions contained therein. It is therefore a right which we are sworn to uphold, the judge said. (Para 45)

The court also said that in the present case, the investigative agencies should have incorporated the use of technology, or have gathered credible intelligence, adding that only then could it have or should it have embarked on “galvanizing the judicial system qua the accused persons.” “Else, it should have abstained from filing such an ill-conceived charge sheets qua persons whose role was confined only to being a part of a protest,” the court said. (Para 47)

The court, thus, discharged Sharjeel Imam, Asif Iqbal Tanha, Safoora Zargar, Mohd. Abuzar, Umair Ahmed, Mohd. Shoaib, Mahmood Anwar, Mohd. Qasim, Mohd. Bilal Nadeem, Shahza Raza Khan and Chanda Yadav. However, it has framed charges against Mohd. Ilyas in this case.

Sharjeel Imam still remains in custody in other FIRs registered against him concerning 2020 North-East Delhi riots. Imam, Tanha and Safoora Zargar are also still accused in the Delhi Special Cell’s case alleging larger conspiracy behind the Northeast Delhi riots of 2020. The latter two are out on bail.

The entire order can be read here.

Brief background of the continuing fight of Human Rights Defender Safoora Zargar

In the year 2020, Safoora was jailed under the Unlawful Activities (Prevention) Act from April 10 to June 24, 2020 in the alleged conspiracy case of Delhi riots 2020, for making provocative speeches on February 23, 2020. A scholar in the sociology department of the prestigious Jamia Millia Islamia university, Safoora was arrested by the special cell of the Delhi police. She was then in the second trimester of her first pregnancy, and has been lodged behind prison bars for well over a month, in the midst of the Covid-19 pandemic.

The Delhi High Court, in June 2020, granted bail to Safoora Zargar, a Jamia Milia Islamia scholar. She had been denied bail by the Sessions Court early that month and she had appealed against this order before Delhi High Court. She was under arrest since April 10, on the allegation that she delivered ‘inflammatory speeches’ on February 23 at Chand Bagh, which led to violence and rioting in North East Delhi.

Safoora’s arrest had even became a subject of one of American Bar Association’s reports in which the American Bar Association asked courts to uphold India’s moral and legal obligations and release Safoora Zargar and deemed her detention to be in violation of international human rights standards. 

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The post Student leaders made scapegoats, prosecution cavalier: Court discharges 11 in  2019 Jamia violence case appeared first on SabrangIndia.

New Delhi: Days after Jamia Millia Islamia cancelled student activist, Safoora Zargar’s Ph.D admission, the university coupled this with “banning” her entry in the campus for unnecessary agitation on irrelevant and objectionable subjects. In a justification for this latest action, the Chief Proctor of the university said that Zargar was “using” the students of Jamia as a platform to fulfil malicious and political agenda’ which has led the university to issue the order. Zargar was a M.Phil student at Jamia Millia Islamia and the media coordinator of the Razamia Coordination Committee. 

Zargar, was in 2020, was jailed under the Unlawful Activities (Prevention) Act from April 10 to June 24, 2020 in the alleged conspiracy case of Delhi riots 2020, for making provocative speeches on February 23, 2020. She was released on bail in June 2020 on humanitarian and medical grounds as she was expecting her first child.

The university, Jamia Milia Islamia stated officially that Safoora Zargar was involved in organizing agitations, protests and marches on the campus against irrelevant and objectionable issues to disturb the peaceful academic environment along with a few outside students.

“It has been observed that Ms. Safoora Zargar (ex student) has been involved in organizing agitations, protests and marches on the campus against the irrelevant and objectionable issues to disturb the peaceful academic environment with few students who are mostly outsiders. She is instigating innocent students of the university and trying to use the university platform for her malafide political agenda along with some other students. Further, she is hampering the normal functioning of the institution. In view of above, the competent authority, for maintaining peaceful academic environment across the campus, has approved campus ban on ex student Ms. Safoora Zargar with immediate effect,” reads the order issued by the university.

Meanwhile, her Ph.D admission was cancelled by the department of sociology citing unsatisfactory’ progress in her thesis work. According to the university, in spite of being given additional chances, Zargar did not submit her Ph.D thesis, after which her admission had to be cancelled. In protest against this act of cancellation of the Phd, a section of students started raising slogans in favour of Safoora and against the university administration in the campus, accusing the university administration of discrimination. Zargar enrolled with the department of sociology in the integrated M.Phil/Ph.D programme in 2019.

Bail for Safoora

The Delhi High Court , in June 2020, granted bail to Safoora Zargar, a Jamia Milia Islamia scholar who was arrested in April and booked under serious charges of the Unlawful Activities Prevention Act (UAPA). She was denied bail by the Sessions Court early that month and she had appealed against this order before Delhi High Court. She was under arrest since April 10, on the allegation that she delivered ‘inflammatory speeches’ on February 23 at Chand Bagh, which led to violence and rioting in North East Delhi.

In what then seemed like a sudden change of heart, Delhi Police, through Solicitor General Tushar Mehta, submitted that it was ready to release Zargar, who is about 5 months pregnant, on bail on humanitarian grounds, provided she does not indulge in activities she’s being investigated for and she remains in Delhi.

Advocate Nithya Ramakrishnan appearing for Zargar submitted that Zargar might have to go to Faridabad to consult her doctor. The single judge bench of Justice Shakdher granted Zargar regular bail on furnishing a personal bond of Rs. 10,000 and clarified that the order should not be treated as a precedent in this or any other case. This means that the other accused in this case cannot place reliance on this case while seeking bail from themselves.

The conditions laid down in granting her bail were:

1.      She shall not indulge in activities she is being investigated for

2.      She shall refrain from hampering investigation

3.      She shall take permission of the court before leaving the territory of Delhi

4.      She shall get in touch with the Investigating Officer once in every 15 days through a phone call.

Justice Shakdher mentioned that he had received certain documents from the state in a sealed cover which he has not opened and which shall be returned to the Solicitor General as is. In its status report submitted to the court, Delhi Police had refused to make an exception for Zargar’s pregnancy considering the severity of the charges against her. The report had termed Zargar as ‘disposed towards creating turmoil to undermine public order and imperil national security’, and claimed that sufficient evidence has been collected to make out a prima facie case.

Safoora’s arrest even became a subject of one of American Bar Association’s reports in which the American Bar Association asked courts to uphold India’s moral and legal obligations and release Safoora Zargar and deemed her detention to be in contrast with international human rights standards. 

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No exception for pregnancy: Delhi police on Safoora Zargar’s bail plea

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The Delhi High Court has granted bail to Safoora Zargar, a Jamia Milia Islamia scholar who was arrested in April and booked under serious charges of the Unlawful Activities Prevention Act (UAPA). She was denied bail by the Sessions Court early this month and she appealed against this order before Delhi High Court. She has been under arrest since April 10, on the allegation that she delivered ‘inflammatory speeches’ on February 23 at Chand Bagh, which led to violence and rioting in North East Delhi.

In a sudden change of heart, Delhi Police, through Solicitor General Tushar Mehta, submitted that it was ready to release Zargar, who is about 5 months pregnant, on bail on humanitarian grounds, provided she does not indulge in activities she’s being investigated for and she remains in Delhi.

Advocate Nithya Ramakrishnan appearing for Zargar submitted that Zargar might have to go to Faridabad to consult her doctor.

The single judge bench of Justice Shakdher granted Zargar regular bail on furnishing a personal bond of Rs. 10,000 and clarified that the order should not be treated as a precedent in this or any other case. This means that the other accused in this case cannot place reliance on this case while seeking bail from themselves. The conditions for her bail are:

1.      She shall not indulge in activities she is being investigated for

2.      She shall refrain from hampering investigation

3.      She shall take permission of the court before leaving the territory of Delhi

4.      She shall get in touch with the Investigating Officer once in every 15 days through a phone call.

Justice Shakdher mentioned that he had received certain documents from the state in a sealed cover which he has not opened and which shall be returned to the Solicitor General as is.

In its status report submitted to the court, Delhi Police had refused to make an exception for Zargar’s pregnancy considering the severity of the charges against her. The report had termed Zargar as ‘disposed towards creating turmoil to undermine public order and imperil national security’, and claimed that sufficient evidence has been collected to make out a prima facie case.

Safoora’s arrest even became a subject of one of American Bar Association’s reports whereby the American Bar Association asked courts to uphold India’s moral and legal obligations and release Safoora Zargar and deemed her detention to be in contrast with international human rights standards. 

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The post Delhi Police agrees to release Safoora on humanitarian grounds; HC grants bail appeared first on SabrangIndia.

The Delhi police, special cell, submitted a status report and sought an adjournment at Safoora Zargar’s bail hearing at Delhi High Court today. On June 18, Single Judge bench of Justice Rajiv Shakdher had issued a notice to Delhi police in her appeal and sought a status report. While adjourning the matter for a day, Justice Shakdher asked Solicitor General Tushar Mehta to come prepared with instructions. Zargar has filed an appeal against the sessions court order denying her bail. Ms Nitya Ramakrishnan appearing for Zargar opposed the adjournment request arguing that the matter pertains to a medical condition of a pregnant woman in prison.

Background

Safoora Zargar, who has been denied bail 3 times already, is a Jamia Millia Islamia scholar who also happens to be about 5 months pregnant; she has been under arrest since April 10, on the allegation that she delivered ‘inflammatory speeches’ on February 23 at Chand Bagh, which led to violence and rioting in North East Delhi. 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) of the Unlawful Activities Prevention Act (UAPA). The court had concluded that there was a prima facie case against Zargar and in view of the statutory embargo under Section 43D (5) UAPA, bail could not be granted.

Zargar’s arrest has raised voices of protest nationally and internationally. In a widely publicised report, dated June 2020, the American Bar Association asked courts to uphold India’s moral and legal obligations and release Zargar and 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.

Delhi police status report

The status report submitted by Delhi Police was signed by Special Cell DCP PS Kushwaha and stated that no exception can be made for Zargar just because she was pregnant given the seriousness of the charges against her. “There is no exception carved out for pregnant inmate, who is accused of such heinous crime, to be released on bail merely because of pregnancy. To the contrary, the law provides for adequate safeguards and medical attention during their custody in jail,” states the report.

Not taking any exceptions to her pregnancy, the report cites the law of the land and states, “the law unambiguously contemplates provisions to deal with pregnant criminals which itself indicates that the law permits use of sanctions against this class of offenders.”

Delhi police is of the view that she should have kept her activities in check as she was bearing a life herself.

The report further pointed out that 39 deliveries have taken place in Tihar jail till date in the past decade and she is being kept in a separate cell and is being attended to by doctors apart from being given a good diet and required medicines. Strongly resisting her bail on health grounds, the report stated, “In fact, more care and caution are being practised in jail so far as social distancing norms are concerned that would be available to her outside the jail premises”.

The report starts by stating that Zargar, along with the other accused, weaved a web of actions animated by unlawful object of creating terror and disaffection.

In its 55-page report, the Delhi police alleges that Zargar and the other accused aimed to “destroy, destabilise and disintegrate the Government of India in order to compel to withdraw the Citizenship Amendment Act (CAA) and the alleged National Register of Citizens”. The report also states that the road blockade at Jaffrabad during President Trump’s visit was to grab international media’s attention and to propagate that the government was anti-Muslim and the north-east Delhi riots were designed to further this narrative. It is pertinent to note here that the sessions court had denied her bail earlier this month on the ground that there was conspiracy to block the roads.

The report termed Zargar as ‘disposed towards creating turmoil to undermine public order and imperil national security’, and claimed that sufficient evidence has been collected to make out a prima facie case. The report also stated that there were grave and compelling reasons to justify that she remains in custody.

“Unless evidence in rebuttal is presented (which can only be at trial) she cannot claim to be innocent of the acquisition made against her, as alleged or otherwise, in her petition. It is also extremely crucial to note here that direct evidence is not always available of a conspiratorial design and mere absence of a contemporaneous record does not even remotely suggest the absence of a case against the applicant/ accused because she stands clearly implicated by the evidence which stands unearthed by the investigation which is continuing even now and further trails of criminality is being unearthed,” it added.

The report further states that there is not even “an iota of doubt” that Zargar was a part of the “nefarious and sinister” conspiracy whereby she mobilized the mob of “a particular community” flaring up their communal passion and instigated them to resort to violence.

As per the police, she was the admin of the Jamia Coordination Committee’s Whatsapp group that funded and monitored some of the anti-CAA protest sites.

In the report she has been described as one of the leading conspirators causing destruction and creating unrest with the “objective of uprooting a democratically elected government”.

The hearing has been adjourned by a day, and will be heard on June 23.

What the American Bar Association Report Says

Sarfoora’s arrest has raised voices of protest nationally and internationally. In a widely publicised report, dated June 2020, the American Bar Association asked courts to uphold India’s moral and legal obligations and release Safoora Zargar and 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 and prison conditions

The report also brings forth the argument that Tihar jail is overcrowded 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, and 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.”

The status report of Delhi Police can be read here.

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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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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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The post American Bar Association asks courts to uphold India’s moral and legal obligations and release Safoora Zargar appeared first on SabrangIndia.

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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The post Safoora Zargar denied bail under UAPA, on grounds for blocking a road appeared first on SabrangIndia.

Student activist Safoora Zargar, has been denied bail, and her Judicial custody has been extended till June 25. She was produced at the Patiala House Court at 12 noon, today. Soon the news of the extension of her judicial custody got out on social media. 

Safoora Zargar denied bail. Judicial custody extended !

— Zafar Abbas (@zafarabbaszaidi) May 26, 2020

A scholar in the sociology department of the prestigious Jamia Millia Islamia university Safoora was arrested by the special cell of the Delhi police  on April 10. She is in the second trimester of her first pregnancy, and has been lodged behind prison bars for well over a month, in the midst of the Covid-19 pandemic. Inmates, and staff, at the overcrowded jails are extremely vulnerable to being exposed to Coronavirus. And pregnant women have been classified as being amongst the most vulnerable. In the current national lockdown it has been repeatedly advised by various experts, even government officials, that pregnant women stay home, and away from crowds. However, that clearly does not seem applicable to those arrested for peacefully protesting against a law many allege to be discriminating  against Muslims in India.

Earlier in the day, a joint press conference was conducted where students leaders from across the country spoke about the system targeting anti CAA protesters, most of them students, 

“The central government’s priority is not the pandemic, nor is it the poor, or feeding the labourers. Their priority is how to ‘expose’ anti-CAA protestors, who were on the streets to save the Constitution,” siad All India Student Association (AISA) leader Sai Balaji, “I don’t understand how reading the Preamble invokes the UAPA?” 

He asked how politicians like Anurag Thakur and Kapil Misra, who have been alleged to have chanted slogans that have called for bullets to be fired at those they consider ‘traitor’s,  is ‘nationalism’ for the forces that be. “I do not understand how spreading hate is nationalism,” he said. These people have not been charged under UAPA, or accused of sedition, he raised the issue that has constantly been under the scanner now. The allegations against and arrests of anti CAA activists, and students leaders, he said are under the Covid-19 lockdown as it is obvious no one will come out in protest.  The media he said, was being distracted by generating ‘Hindu-Muslim’ issues. 

The students were also trying to defend the rights of the Migrants who are now being denied even food, he said. He alleged that the ‘RSS script’ Delhi Police is now using has been politically motivated. 

According to Kanhaiyya Kumar, who rose as a political activist as a student leader from Jawaharlal Nehru University (JNU), and was also politically targeted along with his colleague Umer Khalid said these arrests are a “message to other students that they too will be thrown in jail if they ever speak against the government.” 

Other scholars and  human rights defenders currently in jail, and many charged under various IPC provisions, as well as the dreaded Unlawful Activities Prevention Act (UAPA) include:  Gulfisha Fatima, Khalid Saifi, Meeran Haider, Shifa ur Rehman and Sharjeel Imam. Delhi Police has also seized the mobile phone of former DU student, human rights defender and lawyer Kawalpreet Kaur.

Delhi Police action against these minority voices of dissent, especially those who participated in the anti-CAA protests, has continued even as the Covid-19 pandemic rages on and a national lockdown is in place.  Safoora has also been a victim of online vilification, character assasination and abuse.

“The lockdown was to prevent the Covid-19 curve, but it is being used to flatten dissent and protest,” said Umer Khalid. “The Delhi Police is damaging its own credibility to satisfy political masters,” he added, “I ask them to tell us clearly what political pressure has prevented them from even filing an FIR against Anurag Thakur and Kapil Mishra?”

He said he is confident that the students now under arrest, many of whom he knows and can vouch for himself,  have “never mentioned violence, never advocated violence.”

According to a recent report in the BBC, Zargar was taken by officers of the special cell for questioning about her involvement in the  anti CAA protests. “At the police station Ms Zargar was questioned for several hours,” stated the BBC, she was arrested late that night.  Zargar has been charged under the Unlawful Activities Prevention Act (UAPA) – a draconian law that makes it nearly impossible for the accused to get bail. Since her arrest, she’s been allowed to make two five-minute calls each to her husband and her lawyer. She has been denied both visits and letters on account of Covid-19 restrictions,” reported the BBC.

Jignesh Mewani, Bahujan leader and an elected legislator  of the Gujarat Assembly:  “This is witch hunting and vendetta politics. The police know people will not come on the streets to protest, and so they are using the lockdown to target student leaders.” These students are fighting for the rights of all the marginalised, they are ideologically anti-RSS and that is what is feeding vendetta politics, he said. “To say that these student leaders were involved in Delhi riots itself is a conspiracy hatched and executed by our government,” he said adding that a similar conspiracy has been seen in the Bhima Koregaon riot case.  “It is nothing short of fascism,” he added, “it is shameful to target them. Delhi riots where more than 50 died, looked like a mass scale bob lynching. Police has even not taken cognisance of the reports that quoted provocative speeches by Kapil Misra and others.”

“All of them were peacefully protesting. Khalid Saifi was allegedly tortured in custody, and Safoora Zargar is in the second trimester of her pregnancy. India is headed down a dangerous path. The arrests, intimidation & harassment of some of its finest minds is cause for alarm,” said youth leader Shehla Rashid.

#TheGreatIndianPurge India continues to incarcerate public intellectuals, political opponents, members of marginalised communities such as Kashmiris and Muslims. None of them has committed a crime; they are Political Prisoners. And the lockdown is being used to delay their bail.

— Shehla Rashid (@Shehla_Rashid) May 26, 2020

According to the  BBC report, Safoora, as a member of the Jamia Coordination Committee (JCC), a student group, she had been active in organising peaceful protests against the CAA in north-east Delhi. “Her sister Sameeya describes her as “very gutsy, unapologetically honest and very opinionated”. But police allege she was a “key conspirator” in riots that swept the area in February, in which 53 people, mostly Muslims, died.” “In my view, this is mala fide persecution,” lawyer and activist Prashant Bhushan also told the BBC.

As reported by Sabrang, the most recent has been the case of two women activists  Devangana Kalita and Natasha Narwal, leaders of the feminist rights group Pinjra Tod who are  students of Jawaharlal Nehru University (JNU), who were arrested taking part in anti-Citizenship Amendment Act (CAA) protests in the capital, then granted bail but rearrested by the Delhi Crime Branch immediately. This time they have been charged with murder and attempt to murder.

Related:

https://sabrangindia.in/article/bail-one-case-custody-another-two-pinjra-tod-activists
https://sabrangindia.in/article/eight-political-parties-condemn-arrests-students-and-activists-letter-president
https://sabrangindia.in/article/free-safoora-indians-hold-car-rally-canada-solidarity-student-activist

The post Student activist Safoora Zargar, denied bail, judicial custody extended till June 25 appeared first on SabrangIndia.

After Jamia Millia Islamia University student Safoora Zargar was arrested by the police for her association with the Jamia Coordination Committee (JCC) which organized anti-Citizenship Amendment Act (CAA) protests in December 2019 under the stringent Unlawful Activities Prevention Act (UAPA) and slandered on social media, her arrest and character assassination, both, caused widespread outrage from national as well as international human rights organizations. While the Indian government refuses to release her on humanitarian and compassionate grounds, its supporters have been attacking and demonizing her on social media.

Zargar who is also in the second trimester of her pregnancy was allegedly put in solitary confinement in Tihar Jail even when she needed medical care. Just like Amnesty International and Front Line Defenders which condemned her arrest, the members of Indians Abroad for Pluralist India (IAPI) took out a Mother’s Day car rally for Safoora in Surrey, British Columbia, Canada on the afternoon on May 10. Amnesty International had called for an urgent action for Zargar on the occasion of Mother’s Day.

Zargar is not the first or the last person to be incarcerated under inhuman conditions for raising voices against the repression of religious minorities and orchestrated state violence. Since January 28, 2020 at least seven student activists and leaders have been arrested under the stringent Unlawful Activities Prevention Act (UAPA) and National Security Act (NSA) which are non-bailable.

In amity with Zargar, the members of the IAPI held a rally outside the Indian passport and visa application center to maintain physical distancing due to the restrictions put in place because of Covid-19. As the rally passed by the visa application center, participants honked driving past the building, with their cars bearing the signs ‘No CAA’ and ‘Free Safoora’.

The participants also expressed solidarity with those migrant workers who passed away in a train mishap in Auranagabad, Maharashtra, after they were mowed down by a cargo train while they were sleeping on the railway line from being exhausted due to the walk to the train station to catch a special train to reach their village.

The organization, IAPI, released a press statement about the rally, also stating that the event coincided with the anniversary of the first major uprising against the British occupation of India in 1857. The rebellion of 1857 had brought together people of different faith groups against colonialism. IAPI which was formed in response to growing attacks on minorities in India believes that this recognition is important to keep the spirit of secularism alive as the current government is bent upon turning the country into Hindu theocracy.

The leading car in the fleet carried a flag of Ghadar Party, a group of Indian revolutionaries who were influenced by the 1857 revolt. The Ghadar Party was established in US by Indian immigrants in 1913 to liberate India from British and form an egalitarian republic. Among those who participated were IAPI President Parshotam Dosanjh, prominent Punjabi poet Amrit Diwana, besides, other IAPI members Tejinder Sharma, Harbeer Rathi and Gurpreet Singh.

Related:

Front Line defenders criticizes repression of dissent and arrest of student activists
1100 feminists write to PM against targeting of anti-CAA women protesters

The post Free Safoora: Indians hold car rally in Canada in solidarity with student activist appeared first on SabrangIndia.