The Safoora Zargar bail order: An exercise of complete judicial oversight?

The Patiala House Court on June 4 denied bail to Safoora Zargar, a 27-year-old student of Jamia Milia University, citing Section 43D(5) of the Unlawful Assembly (Prevention) Act (UAPA), 1967.

Briefly put, Section 43D(5) oprovides that any person accused of an offence committed in Part IV (Punishment for Terrorist Activities) and Part VI (Terrorist Organisations) of the UAPA shall not be granted bail “if the Court, on a perusal of the case diary or the report made under Section 173 of Cr.P.C., is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true”.

Essentially, by denying bail, what the Court has therefore held is that it appears prima facie to be true that Safoora Zargar is involved in an offence under Part IV and Part VI (without however saying the same).

Safoora has been charged under a whole host of provisions under the Indian Penal Code, Sections 3 and 4 of the Prevention of Damage to Public Property (PDPP) Act and Sections 13, 16, 17, and 18 of the UAPA. Out of all the sections under which she has been charged, only Sections 16, 17 and 18 fall under Chapter IV of UAPA. The three sections are reproduced below:

“16. Punishment for terrorist act.—(1) Whoever commits a terrorist act shall,— (a) if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and shall also be liable to fine; (b) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

17. Punishment for raising funds for terrorist act.—Whoever, in India or in a foreign country, directly or indirectly, raises or provides funds or collects funds, whether from a legitimate or illegitimate source, from any person or persons or attempts to provide to, or raises or collects funds for any person or persons, knowing that such funds are likely to be used, in full or in part by such person or persons or by a terrorist organisation or by a terrorist gang or by an individual terrorist to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

18. Punishment for conspiracy, etc.—Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.”

The term "terrorist act" has been defined in Section 15, which is reproduced below:

“15. Terrorist act.—(1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,—

(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances of a hazardous nature or by any other means of whatever nature to cause or likely to cause:

(i) death of, or injuries to, any person or persons; or

(ii) loss of, or damage to, or destruction of, property; or

(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or

(iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or

(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or

(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or

(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter-governmental organisation or any other person to do or abstain from doing any act; or commits a terrorist act.”

Therefore, the Court, while dismissing the bail application by taking subterfuge under Section 43D(5) of UAPA, ought to have expressed prima facie satisfaction that the Safoora is involved in any of the Sections reproduced hereinabove.

Surprisingly, the court expounded on the meaning of "unlawful activities" under the UAPA, which is outside the purview of Section 16, 17 and 18 of UAPA. Rather, the punishment for unlawful activities is provided in Section 13 of UAPA which is not within Part IV or Part VI of UAPA.

In fact, the only judgment used as precedent through which the court has tried to establish a case under UAPA against Safoora is irrelevant and completely unrelated for the purposes of Section 43D(5) of UAPA.

The court placed reliance on the judgment of Kedar Nath v. State of Bihar to define what is disaffection against India. There is no statutory embargo against granting bail to someone accused of being involved in an unlawful activity (including committing an act to express disaffection against India). At the cost of repetition, the embargo comes into picture only when the person is accused of a terrorist activity.

At this stage, the observation of the court becomes pertinent to note. After discussing a completely irrelevant proposition regarding meaning of unlawful activities and the definition of ‘disaffection against India’, it is stated in the order,

“Therefore, mere violence is not the gravamen of charge u/s 2(o) of UAPA. Any activity which has 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, such activity would obviously be treated as an unlawful activity within the meaning of Section 2(o) of UAPA.… However, from the statement recorded u/s 161 and 164 CrPC coupled with 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 at least blockade the roads (chakka jaam).”

The court further went on to add,

“...even if no direct violence is attributable to the applicant /accused, she cannot shy away from her liability under the provisions of the said Act. 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”.

Among others, there are two primary concerns with the logic applied by the court. First, this observation is irrelevant to the issue at hand, since the court yet again did not even make an attempt to explain the terrorist act that she was involved in. In fact, what is most surprising is that in the entire order, there is not even a single mention of the phrase ‘Terrorist Act’ or ‘Part IV’ or ‘Part VI’ or Section 16, 17 and 18.

This shows that no attempt was made by the court to even try to ‘apply its mind’ to the relevant provisions of law and place the facts of the present case within context. There is no doubt that discretion is allowed to the judge while deciding a bail application of a particular accused. However, the said discretion is not unfettered so as to completely ignore the black letter of the law.

Second, the said observation is rather against the most fundamental and settled canons of interpretation of criminal law that the provisions have to be strictly construed and not given a wide ambit. Therefore, unless and until the court was prima facie of the opinion that Safoora Zargar is involved in a terrorist activity, any reference to Section 43D(5) of UAPA is completely illegal.

To put things in context, Safoora has been accused of giving inflammatory speeches at Chand Bagh on February 23, 2020, and being involved in a conspiracy to block roads while taking part in anti-CAA protests in New Delhi.

The prosecution, to embolden its case against Safoora, relied upon a judgment of the Supreme Court in NIA v. Zahoor Ahmad Shah Watali, which itself holds that,

“...a priori, the exercise to be undertaken by the Court at this stage - of giving reasons for grant of non-grant of bail - is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise”.

However, the court has failed to record any finding that Safoora was involved in the offences under Section 16, 17 or 18 of UAPA. Therefore, despite the said case being brought to the attention of the court, the dictum of the Apex Court was completely brushed aside and ignored.

Since the court only observed with certainty that she was involved in the conspiracy to block roads, it can be inferred that the court considered the said act to be an apparent act of terrorism, since that was the only condition on which the bail could have been denied to Safoora. The order denying bail to Safoora is based on a blatant misunderstanding of the UAPA, and an exercise of complete judicial oversight.

What, however, needs to be further examined is, if the Court has already stated that Safoora is prima facie involved in a terrorist act, is there any possibility for her to get bail?

The author is a practicing advocate in New Delhi.