The denial of bail to Safoora Zargar – Is our criminal justice system no longer humane?

“The significance and sweep of Art. 21 make the deprivation of liberty a matter of grave concern, and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Art. 19.... Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose, but for the bi-focal interests of justice - to the individual involved and society affected……..Public justice is central to the whole scheme of bail law”.

-         Justice V.R. Krishna Iyer, in Babu Singh v State of UP, AIR 1978 SC 527

On 4^th June, the Patiala House Court refused to grant bail to Safoora Zargar – who is in the 21^st week of her pregnancy. Safoora was booked under the Unlawful Activities (Prevention) Act, 1967 (the UAPA) for allegedly ‘instigating’ the East Delhi riots, which took place in the last week of February. The charge against Safoora was framed for committing the offence mentioned in sub-section (iii) of Section 2(o) of the UAPA, which deals with the commission of an ‘unlawful activity’ that causes or is intended to cause ‘disaffection’ against India. Now, under clause (5) of Section 43D of the UAPA, for offences punishable under Chapter IV and Chapter VI of the statute, bail cannot be granted when the Court is of the view that a prima facie case has been made out by the prosecution.

Chapter IV deals with the commission of a terrorist act, while Chapter VI deals with offences relating to membership of a terrorist organization. The statute forbids the Court from granting bail only when a prima facie case is made out for offences that fall under Chapter IV and Chapter VI. This does not apply for other offences, such as the offence of causing (or attempting to cause) disaffection against India, which Safoora has been accused of. For such other offences, the existing jurisprudence on bail shall be applicable. The bail order fails to note this distinction, and only examines whether there is prima facie merit in the charges made against Safoora.

Existence of a prima facie case against the accused is only one among the many factors that the Court is mandated to take into consideration, while deciding whether bail is to be granted. As the Supreme Court has noted in decisions such as State of Maharashtra v. Sitaram Popat and Prasantha Kumar v. Ashis Chatterjee, there are multiple other factors that the Court has to take into account while considering a bail application. Some of these factors are  – (i) the nature of accusations and the severity of punishment in case of conviction; (ii) reasonable apprehension of tampering of evidence/ influencing of witnesses; (iii) reasonable apprehension of threat to the complainant; and (iv) danger of the accused absconding. The Court failed to consider any of these factors, and only determined whether there is prima facie merit in the charges framed.

Let us apply some of the factors mentioned above to Safoora’s case. The charge framed against Safoora under the UAPA is for causing disaffection against India, which is a charge framed by the prosecution in most instances where there are fervent protests against the establishment. As per the bail order, the overt act through which ‘disaffection against India’ is caused is the attempt to block a road. Now, this is an overbroad interpretation of the ambit of the term ‘disaffection’, especially in a scenario where there is no concrete material to support the claim that Safoora incited violence. In any event, Safoora is not accused of a heinous crime such as murder, or attempt to commit murder. 

As the police already claims to have documentary evidence (such as Whatsapp chats) and video footage of the alleged actions of Safoora, there is no possibility of any large-scale destruction of evidence or influencing of witnesses. There also exists no reasonable apprehension of Safoora absconding. Even without considering the aspect of pregnancy, there were other grounds on which the Court could have granted bail. The Court does not even refer to these grounds which it ought to have considered under well-established bail jurisprudence. Granting of bail in any case would not have affected the veracity's of the charges framed by the prosecution, which shall be determined only at the trial stage. 

Let us now come to the Court’s approach to the defence counsel’s claim that bail should be granted on humanitarian grounds, as Safoora was in the 21^st week of her pregnancy. Safoora was also reported to be suffering from poly cystic ovarian disorder, and had a reported history of urinary tract infection. The defence counsel also highlighted that all the three jails in Delhi have reported positive cases of Covid-19, and her situation becomes all the more vulnerable in this pandemic. The Court fails to even address these contentions in its order, and attempts to salvage the situation by ‘requesting’ the jail superintendent to provide medical aid and assistance to Safoora. However, even if medical aid were to be provided from time to time – that is not in any way a justification for denying bail to a pregnant woman.

This is because pregnancy is a process that is physically and psychologically draining, where access to a clean, hygienic and conducive environment is crucial. A jail cell obviously cannot provide a conducive environment. This, along with the lack of hygiene, may increase the chances of catching Covid-19, as well as other infections - which may lead to complications in the pregnancy. The inability to ensure effective social distancing in jails only exacerbates the problem – and increases the risk of contracting the coronavirus. The Court failed to take note of these health risks which a pregnant woman may have to face in jail. 

This failure to secure Safoora’s personal liberty and right to health under Article 21 is nothing short of callous and inhumane.  As Justice Krishna Iyer held in Babu Singh’s case, public justice is central to the whole scheme of bail law, as depriving bail may amount to an unreasonable deprivation of ‘life and personal liberty’ under Article 21. One does not need to be a lawyer or a law student to figure that keeping a pregnant woman in jail poses a risk to her life and her health. If a pregnant woman who is subjected to vague charges of ‘blocking a road’ cannot be granted bail, then we must ask ourselves the question – Is our criminal justice system no longer humane? Let us all be the judge.

--------------------------------------------------------------------------------------------------------------------------

Update: On 24th June, Safoora Zargar was finally granted bail by the Delhi HC. Solicitor General Tushar Metha, who was representing the Delhi Police before the HC, stated that he shall not be opposing the bail plea on humanitarian grounds. 

As we debate larger questions surrounding the UAPA, Safoora Zargar's case serves as an epitome of the manner in which this law denigrates civil liberties, and suppresses all forms of dissent against the State.