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Friday, April 16, 2021

Pregnant student denied bail: Critics question India’s judicial fairness

A Delhi court on Thursday denied bail to 27-year-old PhD student of Jamia Millia Islamia University, Safoora Zargar, who is 21-week pregnant. Safoora was arrested for her alleged role in the Delhi riots conspiracy. The court’s stand in this case triggers several questions. The most important of them is, how fair is India’s judicial system?

Many call for the judicial system’s immediate self-evaluation. Denial of bail not only landed Safoora in an overcrowded prison amid the ongoing nationwide pandemic, it snatched her basic human rights.

What did the police say?

Delhi Police claimed that Safoora had made an inflammatory speech on February 23 at Chand Bagh during the anti-CAA protests. They alleged that the scholar’s speech had sparked riots in North East Delhi. Therefore, the cops arrested her under the Indian Penal Code and the dreaded Unlawful Activities (Prevention) Act (UAPA), 1967.

They also presented some evidence such as bricks, stones, 3 sling shots and crates of glass bottles and the like from seizures in another case to prove the scholar guilty. And the court declared its judgment based on this evidence.

So what did the court say?

“… 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.”

This is what the Delhi Patiala house court judge said while denying bail to Safoora. The scholar’s counsels told the court that the police were creating false narratives to implicate students who don’t support or approve of the Centre’s policies. However, the judge relied more upon metaphors than law.

The judge based his order on the eyewitnesses’ statements and WhatsApp chats placed on record. He said that the “prima facie evidence shows that there was a conspiracy to at least block roads”. Blocking roads is crime in India??? Didn’t know before!

Where did it go wrong?

Here are some factors that show the court’s flawed reasoning

It came as a surprise to Safoora and her lawyers as the court based its judgment on the evidence collected from another case and not the one under which the scholar was booked.

Some pertinent questions are:

  1. Can a court deny bail to an accused based on the evidence collected in another case?
  2. Why did the police present evidence found in another case in this hearing?
  3. Didn’t they find solid evidence against Safoora’s linkage to the riot conspiracy?

The court didn’t pay any heed to the defense counsels’ appeal that Safoora was liable for only her individual actions. Neither speech nor action of other members of the group of anti-CAA protesters cannot be read against her. And therefore, using evidence from another FIR isn’t fair to decide her case.

The student’s counsels argued that she didn’t deliver a speech at Chand Bagh on February 23 as per the police’s claim. Rather, she delivered a speech at Khureji on that day which was “not inflammatory”.

Court to be liable if accused gets infected?

Safoora’s counsels told the court to consider her case on humanitarian grounds as she is pregnant and also suffering from poly cystic ovarian disorder. The Covid-19 situation has made her even vulnerable as she has to share an overcrowded prison with other inmates. And all three Delhi’s jails contracted the infection. However, these pleas didn’t budge the judge from his decision. While denying the bail, he asked the jail superintendent concerned to arrange for proper medical care for the accused.

Now the question is if Safoora gets infected and given her medical condition if she faces any health risk, will the court be liable for that? The accused here was denied of safe environment or healthcare. Is it even constitutional?

Court failed to justify its own stand

The judge said that there was “no merit” in Safoora’s bail plea. Here the court didn’t bother to explain what punishable offense did the scholar do under the UAPA law. The court order said that the accused disturbed the law and order situation in the state to an “unprecedented scale”. Now the court never explained what the “unprecedented scale” means. If “blocking road” (as the order points out) proved Safoora’s conspiracy for the riots, several block roads in India every day over various issues.

The court also didn’t explain what “acts” or “inflammatory speech” is it referring to in this case. As we read the order, it is unclear to us exactly what crime did the scholar commit? A court is liable to clarify its judgment as per law in its order. In this case this is missing.

Flawed UAPA law

Section 43D(5) of the UAPA Act makes it almost impossible for an accused to get bail. The Section hardly cares about whether an accused really committed any terrorist or such unlawful activities, rather it is just what administrative authorities have to say about an accused in the court.

It means the court will fully rely on what the authorities have to say. And if after reading the case diary it feels there was enough ground to believe the accusation against a person is prima facie true, then the bail becomes virtually impossible.

The Delhi riots took place following a massive clash between pro and anti-CAA protesters in northeast Delhi in February. Total 53 people died, including 2 policemen, in the riot. Police arrested Safoora from Jaffrabad metro station.

The other side of the debate

Those support the Citizenship Amendment Act and support Safoora’s bail denial said a criminal’s pregnancy doesn’t lessen her crime charges. Therefore, it is unfair to “play the pregnancy card” to get bail.

And Safoora definitely is not the first pregnant prisoner in India. The pro-CAA activists believe the National Model Prison Manual will ensure the student’s safe health in the prison.

Here’s what we think

We believe it is the court’s onus to explain every facet of its order. Otherwise a country that has multiple instances of people roaming free after committing heinous crimes, this judgment only reflects the double standards and shadiness of our judicial system.

Now we don’t even need to write about Dawood Ibrahim, Vijay Mallya, Nirav Modi, Swami Nithyananda, Kapil Mishra, Anurag Thakur, Manu Sharma and other such names to create a parallel comparison to Safoora’s case. For they’re already “famous” for their infamous crimes. Wonder what the bhakts have to say on this…

 

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