“Freedom is hammered out on the anvil of discussion, dissent and debate” – Hubert Humphrey
The contentious Citizenship (Amendment) Act, 2019 was met by widespread criticism throughout the country in the form of peaceful protests and marches. These protests took a violent turn in various parts of the country, including the nation’s capital of Delhi and culminated into a full-blown riot in its north-eastern parts. Delhi has been the major centre of attention in this regard owing to various incidents such as police attacks on students of the Jamia Millia Islamia University, the Shaheen Bagh protest as well as the protracted mob violence in Jafrabad and adjoining areas.
The manner in which the protests against this draconian law were quelled can be labeled as nothing but state-sanctioned violence. The blatant violation of human rights through gross misuse of state machinery has been condemned at an international level and is a stain on the constitutional freedom of speech and expression. One of the victims of this administrative arbitrariness is Safoora Zargar (“the accused”), who has been preventively detained in Tihar Jail since the 15th of April, 2020 on 22 criminal charges.
The accused is a research scholar at JMI University and at the time of arrest was 14 weeks pregnant. Her latest bail application was rejected vide order dated the 4th of June, 2020 which has been termed as a grave judicial oversight by lawyer groups and activists alike. It is therefore very important to generate a discussion about how the accused’s detention and subsequent non-granting of bail is in contravention to law as well as internationally accepted standards.
The stringency and validity of the provisions contained in the Unlawful Activities (Prevention) Act, 1967 have once again come before the court of public opinion post the recent denial of bail to Safoora Zargar by a District & Sessions Judge at Patiala House Court, New Delhi. The Court denied bail referring to Section 43D(5) of the Act, which provides that no person accused of an offense contained in Chapters IV and VI of the Act shall be granted bail if a prima facie case is made against the accused.
Firstly, the court examined the accusations relating to the involvement of the accused in a conspiracy under the Act. Here, the Court held that there exists “prima facie evidence to show that there was a conspiracy to at least blockade the road (chakka jam).” It must be noted here that this conclusion was drawn solely on the basis of materials produced by the prosecution in the bail hearing – which were merely some WhatsApp messages and witness statements recorded under Sections 161 and 164 of the Code of Criminal Procedure, 1973.
The Hon’ble Judge further added 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.” However, here the Court provided no explanation as regards to what is meant by the expression unprecedented scale or how it is linked to the road blockade. Shockingly, it was held that blocking roads as a part of a protest can attract the application of the harsh provisions of UAPA.
Secondly, the case appears to be a forced attempt to try and establish an instance of road blockade as an unlawful activity, as defined in Section 2(o) of the Act, for causing or intending to cause disaffection against India. Here, the Court, placing reliance on the 1962 judgment of the Supreme Court in the case of Kedarnath Singh v. State of Bihar, held that any activity that has a tendency to disrupt law and order to such an extent such that an entire city is brought to its knees, would be considered as an unlawful activity.
It would be imperative to say here that not all acts that disturb the law and order can be considered to be causing disaffection against the State. Moreover, the view expressed in the Kedarnath case cannot be directly applied in the present scenario since the current legal position around anti-terror laws has changed and it now requires that there should be a connection between the act or speech of the accused and incitement of imminent violence. Instead, the Court put forward an allegory that “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,” to arbitrarily hold the accused liable for inciting violence. This is in contravention to the Supreme Court’s jurisprudence on the subject-matter that mandates intimacy and proximity of the act/speech and its unlawful consequence (spark in a powder keg). Additionally, it can be seen to be violative of the Fundamental Right to speech and expression, guaranteed under Article 19 of the Indian Constitution, as this doctrine laid down by the Court presents a recklessly broad view, by which anyone can be held liable for an unlawful activity, based solely on the judgment of the sitting judge.
It can, therefore, be said that the Court had denied bail to the accused, by invoking Section 43D(5) of the Act, on wrongful grounds. The present provision is applicable only to offenses mentioned in Chapter IV and VI which relate to terrorist activities. However, even if the rationale behind the order of the Court, to hold the incident as an unlawful activity is assumed to be correct, it still cannot be considered a terrorist act. Moreover, it is the duty of the Court to satisfy that there exist reasonable grounds to believe that the accusation levied against the accused is prima facie true. This prong, however, is not satisfied and therefore a prima facie case cannot be made out against the accused.
The high handedness displayed by the judiciary in denying bail to the accused has attracted extensive disapproval for being outrightly violative of human rights, keeping in mind her precarious condition. The right to dissent is guaranteed not only under the Indian Constitution but also by international conventions such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), both of which have been ratified by India.
In the instant case, the accused (who is now 5 months pregnant) has been detained in Tihar Jail, a prison which currently operates at almost twice its maximum capacity and hence is at very great risk to contract COVID-19. As per the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (Bangkok Rules), methods of a non-custodial nature should preferably be applied in case of pregnant women during the pre-trial phase.
The arbitrary nature of pre-trial detention and rejection of bail application on seemingly unreasonable grounds, in the present case, have caused a grave miscarriage of justice. The life and personal liberty of the accused that have been forsaken unfairly, just for the purpose of curbing rightful dissent against an unjust law, is highly condemnable. It can only be hoped that the higher branches of the judiciary immediately look into this issue and ensure that the principles of democracy, free speech, and liberty are not damaged in this time of crisis. After all, dissent is an act of faith in any democracy whatsoever.
Rishabh Chhabaria is a second-year law student at the Rajiv Gandhi National University of Law, Punjab, India.
Abhigyan Tripathi is a second-year law student at the Rajiv Gandhi National University of Law, Punjab, India.
Suggested citation: Rishabh Chhabaria and Abhigyan Tripathi, Restricting Free Speech and Dissent in India: The Tragic Case of Safoora Zargar, JURIST – Student Commentary, June 23, 2020, https://www.jurist.org/commentary/2020/06/chhabaria-tripathi-safoora-zargar/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
