Safoora Zargar, an M.Phil student of Jamia Milia Islamia University, is alleged to incite violence by her inflammatory speech on 23rd February 2020 at Chand Bagh, Delhi. Since 10th April 2020, she has been in jail. She was denied bail for the third time in a row when recently; the Patiala House Court declined bail to her and booked her under the Unlawful Activities (Prevention) Act (“The Act”).
Recently, her bail application was denied by the Patiala House Court, where she urged that she had exercised her right to freedom of speech and expression and had divergent views from that of Government over The Citizenship Amendment Act, 2019(“CAA Act”). The court relied on a WhatsApp chat and the statement of witnesses recorded under sections 161 and 164 of the Code of Criminal Procedure (CrPC), 1974. Seizure of particular articles from her house also led the judge to infer the interplay of articles along with the Delhi Riots. From the evidence, the court construed that a larger conspiracy was at play and her act, if completed, could overawe the government machinery.
FLAWED INTERPRETATION OF SECTION 43(D)(5) OF THE UAPA ACT
The court primarily relied on the embargo of denying bail under section 43(D)(5) of the Act. However, the embargo is inapplicable unless it is established that the acts committed by Safoora would attract offences under the Act. Further, the phraseology of abovementioned provision objectively states that it applies when the offence is punishable under “punishment of terrorist activities” (Chapter 4) or “terrorist organization” (Chapter 6) of the Act. The shreds of evidence on record, at most, infer a road blockage and the Delhi Police could not prove interplay of the evidence with any terrorist activities or organization. If the allegations are considered to be true, it would only be an “unlawful activity” and not a “terrorist activity” as defined under Chapter 4 of the Act. Safoora could neither be proved to be a member of any terrorist organization, and thus, Chapter 6 also cannot be invoked. Hence it does not sound plausible to attract the abovementioned provision.
Moreover, following the proviso clause of section 43(D)(5), the court has to have reasonable grounds either based on case diary or Police report under section 173 of CrPC, that prima facie, the allegations are true. The Supreme Court in Zahoor Ahmed Shah Watali v. NIA held that to preclude irregularity in granting bail “it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise”. Therefore, the court should have mentioned the reasonable grounds to believe that the acts fall either under a category of terrorist activities or terrorist organization to attract the embargo under section 43(D)(5) of the Act. It was held in the case of Devendar Gupta And Ors. v. NIA that the term “prima facie” under 43(D)(5) should be interpreted with exceptional care by the courts while examining evidence to establish that “unlawful activities” are carried out. The court issued specific guidelines in the form of a torchbearer while concluding whether the allegations are prima facie correct or not. In Jayanta Kumar Ghosh v. The State of Assam, the court emphasized on “presumption of innocence” held that opinion of the court should be based upon the evidence on record. Therefore, the order of the Patiala House Court is not in line with the abovementioned judgements as the court did not test the evidence against her acts to ascertain reasonable grounds to believe whether the allegations are prima facie true.
SILENCE OVER THE ISSUE OF FILING TWO FIR’S
The police registered two FIRs bearing number 101/2020 and 59/2020 against Safoora. The articles seized are mentioned in seizure memo of the former FIR; whereas the bail is applied for under the later FIR. The court did not establish the reason for relying on the articles seized under the former FIR to grant bail under the later FIR. It is not yet established by the Delhi Police that the articles found had a connection with the incident of road blockage. Therefore in the light of section 6 of the Indian Evidence Act, 1872 (“IEA”) if the two FIRs cannot be proved to have a nexus between them, then the offence of road blockage cannot constitute an “unlawful activity”.
NEEDLESS APPLICATION OF SECTION 10 OF THE INDIAN EVIDENCE ACT, 1872
The court relied on Section 10 of the IEA while constituting the acts and inflammatory speeches of the co-conspirators admissible. Section 10 is used at the trial stage when a piece of independent evidence against the accused is already produced. However, this section is applied against her at the stage of proceedings. The Supreme Court in Sidharth And Ors. V State of Bihar held that if the statement is made to a third party after the conspiracy in furtherance of common intention is inadmissible. No examination was conducted regarding evidence to determine whether the acts and inflammatory speeches of the co-accused were committed after the alleged conspiracy of road blockage was over. The court did not delve deeply into the evidence at this stage as it might prejudice the ongoing investigation. Therefore in the absence of such examination, Application of section, 10 of IEA was misplaced.
ERRONEOUS INTERPRETATION OF “DISAFFECTION AGAINST INDIA” UNDER SECTION 2(O) OF THE ACT
Section 2(o) of the Act states that any action taken by individual or association which causes or is intended to cause “disaffection against India” would come within the ambit of “unlawful activity”. Disaffection against India is a term which is open to broad interpretation, and the Act itself does not define it. Hence the Patiala House Court interpreted “disaffection against India” under section 2(o) of the Act in light of the Kedar Nath Singh vs State Of Bihar . The Hon’ble Supreme Court in Kedarnath held that if an act which is directed to bring Government into contempt or hatred or create disaffection against it, would be penalized under Section 124A of Indian Penal Code (“IPC”). Therefore it can be established that the alleged actions of conspiracy to commit “road blockage” as a part of protest would be outside the purview of “disaffection against India” because no evidence, in any manner could determine that she resorted to violence or incitement of violence that is sufficient to cause public disorder. There is no reasoning mentioned in the order of the court that Safoora’s act could cause a disorder of “unprecedented magnitude”. Road blockage is generally a consequence of protest, and it cannot “bring an entire city to its knees”. Therefore, the offence of blocking the road would not constitute an offence under section 2(o) of the Act and does not fall within the ambit of “disaffection against India”.
The order of the Patiala House Court should have been consistent with the guidelines laid down by the Hon’ble Supreme Court. Orders not in line with the Hon’ble Supreme Court’s guidelines may result in attaching a stigma to a person as an anti-national. The unfounded way in which the acts are categorized as “unlawful activity” and are demonstrated to be of a nature to make an entire city kneel relying on a WhatsApp message and seizure of some articles seems inconceivable. Moreover, even considering the evidence on record, and believing the allegations to be correct, Safoora can only be held liable under Section 283 of IPC, which is a bailable offence. However, the court equated a law and order problem with “disaffection against India” which indicates that the court in its order did not properly consider the Kedarnath judgment.
The Hon’ble Supreme Court in Babu Singh v. State of Uttar Pradesh reiterated the significance of bail in the context of liberty, justice, public safety and burden on the public treasury. Further, it was held that “developed jurisprudence of bail is integral to a socially sensitive judicial process.”. Safoora is in the second trimester of her pregnancy and is suffering from Poly Cystic Ovarian Disorder and urinary tract infection, which can lead to miscarriage. Therefore, in light of the Supreme Court’s view on bail, the rejection of bail application by the court seems unreasonable. Neither law nor humanity would allow such impassive treatment to her.
ABOUT THE AUTHOR
Ramit Singh is a second-year student at Institute of Law, Nirma University. His interests lie in Constitutional Law and Arbitration Law.
Shivam Shukla is a second-year law student at Institute of Law, Nirma University. His interests lie in Constitutional Law and Criminal Jurisprudence.