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The curious case of 'humanitarian grounds' in Safoora's bail order

There is much more to the prosecution's 'humanitarian grounds' concession leading to Safoora Zargar's bail than a large hearted State

Safoora Zargar was granted bail on
Safoora Zargar was granted bail on "humanitarian grounds" on 23 June.

On 22 June, solicitor general Tushar Mehta, appearing on behalf of the Delhi Police, opposed the bail plea of Safoora Zargar, a student of Jamia Millia Islamia, who is in her fifth month of pregnancy and was arrested on 10 April under the Unlawful Activities (Prevention) Act (Uapa). Mehta had argued that 39 deliveries have taken place in Tihar jail over the last 10 years, and that Zargar was getting adequate medical care.

The next day, on 23 June, Mehta conceded that the Police had no objection to Zargar’s release on “humanitarian grounds" and she was granted bail on certain conditions—no travel without permission, no influencing witnesses, no engagement in activities for which she is being investigated.

As advocate Gautam Bhatia points out, bail is granted on humanitarian grounds owing to the personal circumstances of the applicant—such as old age, illness, pregnancy, a wedding—and not the merits of the case.

It has been hailed as a welcome move, given that various national and international human rights organizations had been advocating for the release of Zargar and others detained during the pandemic—the list includes The International Federation for Human Rights, the American Bar Association and the United States Commission on International Religious Freedom. However, the grounds of release are a peculiar concession—given the arguments made a day earlier, as well as the denial of bail in three earlier hearings—under the same circumstances.

“I am glad that the state conceded on humanitarian grounds and agreed to Safoora’s bail but the question remains, what was stopping them from doing so before the sessions court or the magistrate?" asks Chitranshul Sinha, advocate on record, Supreme Court.

“If you see the lower court order, bail was denied because the court said there was an embargo on it from granting bail due to section 43D(5) of Uapa. So the HC would have actually gone into the correctness of it. The state conceded humanitarian grounds because, in my opinion, they didn’t want an order on merits as it would have weakened their cases against other riot accused. So this was a strategic move in my view," says Sinha.

Usually, in a case regarding bail, the state opposes a plea made by the accused on humanitarian grounds and an order is passed by the court on merits. This is not the case in this matter, given that the prosecution has ceased to resist this argument. However, the concession is conditional in that it clearly stipulates that this will not be treated as a precedent in any other case.

Against this backdrop, the decision to concede humanitarian grounds has brought into question the impact such an order would have on the other arrests in the case. Just yesterday, for instance, the Delhi high court dismissed a plea seeking the release of Gulfisha Fatima, who had protested against the Citizenship (Amendment) Act (CAA) and was also arrested in the Delhi riots case.

“Let’s remember that till yesterday in court, the Delhi police, which comes under the Central government, was quoting jail statistics and claiming that pregnancy is no ground for bail. It’s not that their heart changed overnight," says lawyer Guneet Kaur.

“This is a very strategic move because I assume lawyers from the government’s side anticipated a bail order which would have gone into the nature of the investigation based on the status report submitted yesterday, and made observations on how the investigation has obfuscated the facts around the Delhi violence," she adds.

From a legal standpoint, not much has changed. The chargesheets link anti-CAA activists such as Umar Khalid, Khalid Saifi, Meeran Haider, Harsh Mander and others to the riots in north-east Delhi. However, as reported in The Caravan, a large number of complaints filed by residents from the riot-affected area have thus far been ignored by the Delhi police—these mention the names of various BJP leaders, including Kapil Mishra, alleging his involvement in instigating violence.

“The fact that the political view of the BJP has been that these riots are a product of the anti-CAA protests and those who are leading this can be seen both by their silence on Kapil Mishra and the fact that the prosecution seems to have not investigated the complaints against him with any aggression, or made any arrests—which seems to be the norm when it comes to the anti-CAA protesters," says lawyer Abhik Chimni.

Mishika Singh, a lawyer who has been working at the ground level since the violence broke out, sums up one view on what the implications of the “humanitarian grounds concession" might have on the political narrative.

“I think it was a strategic move because now even those who supported Safoora’s arrest will see this as the large-heartedness and charity of the Centre, even though on merits, it is likely that she would have been granted bail anyway," says Singh. “It will now be seen as something that was given to her by the Centre, as opposed to something she had a right to. And this is an incorrect view," she adds.

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