Authored by Sarthak Sharma of National Law University, Odisha.
On 10th of April, Safoora Zargar was arrested for her alleged role in the riots caused during February, earlier this year. Safoora Zargar, a research scholar from Jamia Islamia and associated with Jamia Coordination Committee (JCC) was tried majorly under the provisions of section 2(0) of the Unlawful Activities (Prevention) Act, 1967 (hereinafter UAPA). Besides being more than 20 weeks pregnant, her bail application is rejected for the third time by the Patiala House Court but there were many legal aspects that were overlooked by the honourable court.
Safoora Zargar was first arrested on April 10 by the special unit of Delhi Police after being accused of blocking the road in Jaffrabad under section 339 and 141 of IPC.1 After three days of her arrest as under FIR 48/2020, she was presented before the magistrate of the Mandoli Jail where she was granted bail. But events turned upside down as she was again arrested on the same day of her acquittal under FIR 59/2020.2 At first, she was tried under the IPC for causing riots with deadly weapons and being a part of an unlawful assembly but as the case was transferred to the special cell of the Delhi Police, several other charges such as sedition, attempt to murder, promoting enmity between different groups on ground of religion, section 3 and 4 of the Prevention of Damage to Public Property (PDPP) Act and majorly section 13, 16, 17 and 18 of the UAPA Act were added in the FIR. Regarding the particular issue, a bail application was filed by the accused under Section 43-D5 of UAPA Act which was rejected by the honourable court as the court opined that the accusations against her stood prima facie true.
The Order for Denial of Bail
Safoora Zargar was accused of delivering inflammatory speeches at Chand Bagh on February 23 that triggered violent protests in the north eastern parts of Delhi. Further, there were glass bottles, plastic crates containing bricks and stones and three slingshots that were seized, thus the court stated that there was a bigger conspiracy that was hatching intendingto create disorderliness and disturbance of law and order at an unprecedented level.3 The acts of the accused created disaffection against the country as were prescribed in sub-clause 3 of section 2(o) of the UAPA Act. As there is no statutory definition of “disaffection against the country” stated in the UAPA Act, the court relied upon its definition under Sedition prescribed under section 124A of IPC as it was discussed in the case of Kedar Nath v. State of Bihar. The court mentioned that even if the accused was not resorting to violence and inflicting damage to the state, a mere tendency to inflict violence is apposite to harm the law and order of the state and promote disaffection against the country.
The court also denied the application of bail of the accused by stating that there was prima facie evidence collected under section 161 and 164 of Code of Criminal Procedure, 1973, substantiated with Whatsapp chats and call records of the accused. Further, the court stated that there was at least an attempt to block roads (or create to Chakka Jams) that would have resulted in halting the machinery of the government and disrupting law and order and bringing the entire city and the government to its knees.4At last, the court ends by stating that even if the accused was not present at that particular situation and had not delivered any inflammatory speeches, yet her being a part of a conspiracy to dismantle law and order of the state cannot be overlooked, as when you play with the embers you cannot blame the winds to carry the spark a bit too far and spread the fire.
The Topsy-Turvy Reasoning of the Court
The defence stated that the Safoora was falsely accused as she was only exercising her right to express dissent about a particular legislation of the government (i.e. CAA) under her fundamental rights rather strew disaffection against the government. On February 23, instead of being present at Chand Bagh, the accused was delivering a speech at Khureji at 4 in the evening, which were also not inflammatory.5The accusation of conspiring for riots at Chand Bagh was frivolous as she delivered the speech on February 23 at Khureji while the riots at Chand Bagh broke out on 24th around 1pm. The court here did not emphasise upon the term inflammatory as it means that immediate and prompt violence caused due to any activity of a person. In this particular situation, the acts do not hold any reasonable nexus between speech delivered at Khureji on 23rd and riots breaking out in north east Delhi on the day after. The Supreme Court has observed in S. Rangarajan v. P. Jagjivan Ram that, “the anticipated danger should not be remote, conjectured or farfetched. It should have a proximate and direct nexus with the expression and the expression should be intrinsically dangerous to the public interest.” Thus the following nexus was not provided by the court.
Next, section 43-D5 of the UAPA Act mentions that the accused shall not be released on bail if the activities committed shall fall under chapter IV (Punishment of Terrorist Activities) and chapter VI (Terrorist Organization) of the act. Here, the accused was arrested under section 13, 16, 17 and 18 of the UAPA Act out of which only section 16, 17 and 18 falls under chapter IV. There is nowhere the court has hinted about the involvement of the accused with the terrorist organization. Even if the accused was attempting to block roads and trying to spread havoc in the city, it would amount to be a penal offence under section 339 of IPC rather than a terrorist activity. Thus the court provides no concrete grounds for denial of bail plea for a terrorist activity that would have brought the entire state machinery to its knees and disrupt the law and order of the state.
Next, the court stated about the involvement of the accused in unlawful activities (under section 13) and spreading disaffection against the government which was a major reason for detaining Safoora. But the court was incomprehensible in providing a reasonable nexus between section 124A(sedition) and disaffection against the government. The court conflated disaffection against the government and unlawful activities citing the Kedar Nath judgement but went completely oblivious about the evolution of the UAPA Act and section 124A in the country. The Supreme Court in Balwant Singh v State of Punjab laid down emphasis on the commitment of any overt act by the accused that may incite violence or disturb the law and order of the state. Also, the court overlooked the ‘test of imminence’ established by the apex court in Arup Bhuyan v. State of Assam, where the court stated that there should be imminent lawless actions committed that would disrupt the tranquility of the state. Thus the court completely overlooked the two landmark judgements by the Supreme Court, decided upon circumstances circumscribing the UAPA Act.
Finally, the court stated that even though the accused did not participate in any of the unlawful activities, she shall still be withheld liable as a co-conspirator for the inflammatory speeches delivered by other accused under section 10 of the Evidence Act. The court again baffled the reasoning as section 10 is not a rule of law but a rule of governance and cannot be interpreted as a whole in this particular case. The court was completely oblivious while application of section 10, and if done properly the court would have outlined the complete conspiracy if committed and delved into the facts of the same, but unfortunately the same was not achieved.
Although, today Safoora Zargar breathes under the open sky, but the very denial of bail and the prolonged journey to freedom was not appropriate as there were many facts and aspects of the law that were unturned.6Free flow of speech and expression regarding appraisal or dissent of any legislative act is a flamboyant feature of the democracy but the same shall not be affected by imposing the draconian UAPA Act upon the people exercising their key fundamental right. It is indeed the duty of the court to stand up and protect the unprotected if any misuse of law is exercised by the government, yet it was unfortunately not followed due to the muddled reasoning of the court, putting the Aam Janta at stake.