Denying Safoora Zargar Bail was Wrong in Law, Despite UAPA

On Thursday, 4 June, Additional Sessions Judge Dharmender Rana of the Patiala House Court denied bail to Safoora Zargar, a student of Jamia Millia Islamia, in a case regarding her participation in anti-CAA protests in Delhi.

The Special Cell of the Delhi Police claim that Zargar made an inflammatory speech on 23 February at Chand Bagh which helped sparked the riots that took place in North East Delhi, and have not just booked her under provisions of the Indian Penal Code, but the dreaded Unlawful Activities (Prevention) Act 1967 – known as the UAPA – as well.

Zargar has been in custody since 10 April, and is 21 weeks pregnant. Here’s why the denial of bail to her runs contrary to the law, despite the statutory bars to bail that the UAPA creates.

The Vague Definitions Under UAPA That Remain Undefined

While bail is supposed to be the norm and pre-trial incarceration the exception, for Safoora Zargar to get bail in this case, it’s not enough for her to show that she’s not likely to repeat her offence, abscond, threaten witnesses or tamper with the evidence – the regular conditions which have to be met before a court is willing to grant someone bail.

The UAPA is currently India’s primary anti-terror legislation, thanks to amendments made to it by the UPA government in 2008 to compensate for the repeal of the much-hated POTA. However, the draconian law doesn’t only deal with terrorism, it also includes the commission of an ‘unlawful activity’.

The complication in Zargar’s case, and in an increasing number of high-profile cases involving protests and dissent, is the invocation of the UAPA.

The definition of ‘unlawful activity’ under the UAPA is incredibly vague, referring to any action that supports or is intended to support the secession of any part of India, or “disclaims, questions, disrupts or is intended to disrupt” the sovereignty and territorial integrity of India.

It also includes any action by a person “which causes or is intended to cause disaffection against India” – which judge Dharmender Rana considers the pertinent issue when it comes to Safoora Zargar’s case.

There is unfortunately no definition of ‘disaffection against India’, as the judge recognised in his order, which means when interpreting the concept, the courts have to often consider what has been held in case law relating to other offences under other legislations.

What is important to note in the order passed by the Patiala House Court on 4 June is that the prosecution hasn’t really bothered to explain in much detail why they think Zargar has committed a punishable offence under the UAPA.

Instead, their primary argument used to oppose bail for Zargar is that under the UAPA, “there is a statutory embargo upon the power of the court to release the applicant/accused on bail.”

In the prosecution’s view, they have witness statements and some WhatsApp chats which justify the invocation of the UAPA. Since that is the case, they argue that the courts cannot go into the merits of the case, and because of that ‘statutory embargo’, there is no question of granting Zargar bail.

Now this is indeed the key issue in this case, because Section 43D(5) of the UAPA does create a near-impossible hurdle for an accused when it comes to bail. Judge Dharmender Rana also acknowledges that this is the case, and eventually denies bail on this basis.

How UAPA Makes Bail Virtually Impossible

But here’s the catch: despite everything Section 43D(5) does to make bail virtually impossible, the conditions required for it to apply are not in fact met in Safoora Zargar’s case.

This has nothing to do with the merits of the main arguments about whether Zargar was present where the police claim she was, or whether she was part of a conspiracy or not, but is purely a function of what the authorities have argued in the court, as acknowledged by the judge. Section 43D(5) says that a person accused of an offence under Chapters IV and VI of the UAPA (terrorism and belonging to a terrorist organisation) shall not be released on bail if the court, after perusing the case diary and police report, “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”

What this means is that if the police are able to make out a prima facie case that a person committed a terrorism-related offence, then the court cannot grant them bail.

The condition for this to apply, therefore is clear: the material provided by the authorities has to make out a prima facie case for a terrorism offence.

Why the ‘Statutory Embargo’ Doesn’t Apply in Safoora’s Case

There is nothing, however, in judge Dharmender Rana’s order, which shows that this condition has been met.

Section 43D (5) Only Applies to Terror Offences, Not Unlawful Activity

First, when assessing whether or not the provisions of the UAPA have been rightfully invoked in the case against Safoora Zargar, the judge says he has to look at whether an ‘unlawful activity’ took place, in terms of causing “disaffection against India”.

However, as advocate Chitranshul Sinha points out, Section 43D(5) clearly says that for it to apply, there has to be prima facie evidence of offences under Chapter IV (terrorist activities) or Chapter VI (terrorist organisations) of the UAPA – not just of an offence of ‘unlawful activity’.

Sinha explains:

“Safoora Zargar has been accused under Chapter IV of terrorist activities but the bail court has not found any prima facie evidence against her for that. The only prima facie evidence that according to the court exists is for ‘chakka jam’ which at best would fall under Chapter III and therefore there’s no bar on grant of bail under Section 43D(5) of UAPA. Therefore denial of bail on this ground is untenable and unconscionable.”

Note the wording of the section requires the prima facie evidence to be on record; it can’t just be inferred from listing the terror provisions of the UAPA.

The Prima Facie Evidence Doesn’t Add Up

Let us assume for a moment that Section 43D (5) somehow applies here. Even in such circumstances, the police have not made out a prima facie case that Zargar has committed the requisite offences under the UAPA, whether terrorism (of which no mention is made) OR unlawful activity.

According to the judge, ‘mere violence’ is not enough to constitute the offence of ‘unlawful activity’ under the UAPA, in terms of causing “disaffection against India”.

The activity in question has to have “a tendency to create a disorder or disturbance of law and order to such an extent that the entire city is brought to its knees and the entire government machinery is brought to a grinding halt”, according to him, after reviewing the law on sedition in India.

Judge Dharmender Rana finds eventually that, from the witness statements and the WhatsApp chat available on record, “it can be safely inferred that there is prima facie evidence to show that there was a conspiracy to atleast blockade the roads (chakka jam).”

This is not enough to satisfy Section 43D(5) – following his own assessment of the law, he has to find that the prima facie evidence points to a conspiracy to bring the entire city of Delhi to its knees and bring the machinery of government to a grinding halt.

How can causing a blockade of some roads or chakka jam (that too only in one part of the city) meet this extremely high standard?

And yet that’s exactly what judge Dharmender Rana does two paragraphs later, saying that “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.”

There is NO causal link drawn between this and the evidence on record, which is a requirement at this stage, even if the court is not supposed to examine the merits of the case

This is not some formality that can be casually brushed aside, given a person’s liberty is at stake, and yet that’s exactly what the judge has done. Yes, the UAPA does make grant of bail difficult if not impossible. Yes, the court is not supposed to look at the merits of the case, and see if Zargar’s speeches (if any) were inflammatory, or how she conspired with others to cause the riots that set North East Delhi aflame.

However, if the court’s own findings on prima facie evidence show one thing, but then get magically stretched to somehow cover a more serious offence, then we as citizens of this country need to be very, very scared about what it means for our civil liberties, as any legitimate action can be construed as an offence against the nation on a whim.

There are many forms of government in which that may be possible, but constitutional democracies are not one of them.