Set Safoora Zargar free, detention against international law standards: American Bar Association

The pre-trial detention of Safoora Zargar does not appear to meet the standards of international law, including treaties to which India is a state-party, said the Center for Human Rights, American Bar Association.

"International law, including treaties to which India is a State party, only permit pre-trial detention under narrow circumstances which do not appear to have been met in Ms. Zargar's case. The International Covenant on Civil and Political Rights (ICCPR) states that ‘it should not be the general rule that persons awaiting trial shall be detained in custody’," commented the Center on the custody of Zargar since April 10, reports legal news website LiveLaw.in.

Last week, Additional Sessions Court, Patiala House at New Delhi had denied bail to the 27-year old PhD student of Jamia Milia University in a case registered under Unlawful Activities Prevention Act 1967 (UAPA), linking her to conspiracy behind the Delhi riots.

In this regard, the Centre of Human Rights, ABA, noted that Zargar had been in the forefront of protests against the Citizenship Amendment Act 2019 since December 2019, and was arrested first on April 10 for allegedly blocking a road way as part of protests. Though a Magistrate granted bail her in that case citing "her pregnancy, health condition, and the directives issued by the Indian Supreme Court on decongestion of prisons during COVID-19", she was soon re-arrested in the UAPA case, alleging conspiracy behind Delhi riots.

The Center opined that the denial of bail to her in the UAPA case was not in consonance with the provisions of International Covenant for Civil and Political Rights, which hold that pre-trial detention must be only for narrow purposes as to "prevent flight, interference with evidence, or the recurrence of the crime".

It also stated that the UN Working Group on Arbitrary Detention has interpreted the ICCPR to hold that "any detention must be exceptional and of short duration and a release may be accompanied by measures intended only to ensure representation of the defendant in judicial proceedings".

In this backdrop, the Centre said: "Given the lack of evidence in the FIR linking Ms. Zargar to acts of violence, it is unclear why alternatives to pre-trial detention were not considered adequate by the court in this case".

The Center raised particular concerns about her vulnerable state on account of pregnancy, and risk to exposure to COVID-19 in the overcrowded prison.

"Regardless of whether Ms. Zargar's detention was properly justified under normal circumstances, it is likely unreasonable in light of her pregnancy and the risk of contracting the novel coronavirus. The United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (also known as the Bangkok Rules) concludes that non-custodial means should be preferred for pregnant women during the pre-trial phase wherever that is possible or appropriate".

It noted that Tihar jail, where Zargar is detained, is over capacity and that the assistant superintendent of the jail has tested positive for COVID-19 and some inmates have been quarantined. Zargar's sister has also stated in an interview that she has polycystic ovary syndrome of which one of the health effects is high blood pressure. High blood pressure patients are one of the populations at greater risk for contracting COVID -19, said the ABA.

In this backdrop, the Centre said: "Given the lack of clear evidence of criminal conduct, her pregnant condition, and the failure of prosecutors to specifically explain how Ms. Zargar poses a threat if granted bail, Ms. Zargar should be given the opportunity to furnish a bail bond and be in her home with her family until the appropriate time for her legal hearings. The Center urges the Court to uphold India's moral and legal obligations given the pandemic and order the immediate release of Mrs. Zargar".

The Center also noted that a slanderous online campaign was launched against her, on which the Delhi Commission for Women took suo moto action.

The American Bar Association, founded August 21, 1878, is a voluntary bar association of lawyers and law student, with over 400000 members and more than 3500 entities, based out of Chicago, USA.