Javid Amin, Journalist based in Kashmir (J&K). Printer, Publisher, Editor of "Weekly Shohrat - Kashmir" (Print Edition) as well owner of online news portals www.KashmirPost.org / www.KashmirInFocus.com. Aimed at putting Kashmir and its issues on the global platform. An extensively traveled person enjoys writing.

Consider the case of two people arrested by the Delhi Police in connection with the Delhi riots of February 2020.

One is a pregnant Muslim woman, a student of Jamia Millia Islamia with no prior involvement in any criminal activity. She is taken into custody six weeks after the violence had ended. No arms and ammunition were recovered from her at the time of the arrest.

The other is a Hindu man who the police claims has been supplying arms for the past two years, buying weapons and cartridges from Madhya Pradesh and then bringing them to Delhi. He was arrested even as the violence in Delhi was on and the police say they recovered five pistols and 20 cartridges from him. Many of the 55 people killed in the violence died of gunshot wounds.

Both are eventually booked under the same FIR – 59 of March 6, 2020 – registered by the Crime Branch and investigated by the Special Cell, but the contrast in their treatment is glaring.

The woman, Safoora Zarfar, ends up getting charged under India’s anti-terrorism law, the stringent Unlawful Activities (Prevention) Act (UAPA), and has been in jail now for one month without the prospect of bail. This, despite her condition and the heightened risk of being exposed to the coronavirus in Delhi’s overcrowded prison system.

The man, Manish Sirohi, is charged only under the Arms Act, even though he was booked under the same FIR as Safoora – FIR 59 of March 6, 2020 – which included UAPA. And on May 6, a Delhi court grants him bail, citing the risk to him of contracting COVID-19:

‘Therefore, keeping in view the above facts and circumstances and also the fact that spread of COVID-19 pandemic is on high rise and there is always a risk of the applicant being infected with the said virus in case he is left to be confined in jail, the applicant is admitted to bail on furnishing a personal bond of Rs 25,000/- with one surety of the like amount to satisfaction of the Court of Ld, CMM/Ld. ACCMM/Ld. MM on duty as per the roster prepared by the Ld. District & Sessions Judge, PHC, New Delhi.”

Single FIR, double standard

The contrasting fate of Safoora and Sirohi, lawyers say, strengthens the perception that the Delhi Police has adopted a ‘political’ approach towards the Delhi violence, ignoring the role of BJP leaders in making inflammatory speeches while going after anti-CAA activists.

Safoora, who was active in the protest against the Citizenship (Amendment) Act, was arrested under this FIR on April 13. The Delhi police have also arrested another Jamia student, Meeran Haider, the president of the university’s alumni association, Shifa-ur-Rehmani, and two other anti-CAA activists, Khalid Saifi and lawyer Ishrat Jehan, under the same FIR.

FIR 59 was registered on the complaint of a sub-inspector who claimed an informer told him that the communal violence which took place in Delhi from February 23 to 25 was part of a pre-planned conspiracy to incite riots in the capital during US President Donald Trump’s visit in February this year.

The FIR was registered by the Crime Branch under IPC sections 147, 148, 149 and 120(B), which relate to rioting, armed with deadly weapon and unlawful assembly. After the case was transferred to the Special Cell, charges of conspiracy to commit murder (302), attempt to murder (307), sedition (124 A), promoting enmity between different communities on grounds of religion (153 A) and sections of the Arms Act were added.

Terrorism law brought in, for some

Around April 20, the Special Cell added sections 13, 16, 17 and 18 of the stringent Unlawful Activities (Prevention) Act (UAPA) to the FIR. These sections pertain to the offences of ‘unlawful activity’, the commission of a terrorist act, collecting funds for a terrorist act and conspiracy for committing a terrorist act.

After the addition of UAPA charges to the FIR, the possibility of the accused being granted bail diminished significantly because of the pre-conditions that come with the anti-terror law.

Section 43D, subsection 5, of UAPA says that no person accused of an offense under this act can be released on bail or on his/her own bond unless the public prosecutor makes a case for such release. Even then, if the court is of the opinion that there are reasonable grounds for believing that the accusations against such persons are prima facie true, the court can deny bail.

Facing UAPA charges under FIR 59, Safoora Zargar, who is more than three months pregnant, Meeran Haider, Shifa-ur-Rehman, Khalid Saifi and Ishrat Jehan are currently lodged in jail.

Yet, on May 6, the Patiala House Court granted bail to Manish Sirohi. The bail order, uploaded on the court website, shows that Sirohi had been arrested by the Special Cell of the Delhi Police on February 26, 2020 and then booked under FIR 59/2020. While detailing the case, the bail order states that 5 pistols and 20 cartridges were recovered from him at the time of his arrest:

“As per the allegations, the applicant as well as the co-accused Zahid were both apprehended by the officials of the Special Cell on 26.02.2020 on some specific information and 20 pistols and 80 cartidges are stated to have been recovered from the possession of co-accused Zahid and 5 pistols and 20 cartridges were recovered from possession of the applicant Manish Sirohi. The applicant is in custody in the case since the above date and it has also been reported by the IO that investigation has been completed and chargesheet stands already filed in the concerned court on 25.04.2020. No previous involvement of the applicant in any other case has also been reported by the IO.”

Despite this being a riots conspiracy case where UAPA charges have been added to the FIR and the investigation is still underway, the Special Cell told the court that the investigation for Manish Sirohi is over and does not contest his bail plea. Judge M.K. Nagpal, who was hearing the matter, decides the court need not step in despite special provisions in UAPA that allow for a court to use its discretion, over and above arguments made by the state.

The end result: Manish Sirohi, who was found in possession of 5 pistols and 20 cartridges at a time when Delhi was witnessing communal violence, is allowed bail.

Not much of a ‘conspiracy’

Legal experts say there is a clear anomaly here. Sirohi is an accused in a case where UAPA charges have been added after investigation but it appears that Sirohi has only been charged under the Arms Act. By doing so, the investigative agency is admitting that conspiracy charges cannot be made out against all of those who have been arrested. So if Sirohi is not being charged with terror, despite the arms and ammunition recovered from him, what is the basis of charging others with UAPA? How can a person who was found in possession of illegal arms during a riot be granted bail in a riots case when others from whom nothing was recovered are still lodged behind bars?

Dr. Anup Surendranath, executive director of Project 39A, a criminal justice program at National Law University, Delhi, sounds a worrying note about FIRs being filed based on conspiracy theories and the arbitrary manner in which bail is being granted to a select few.

“The ever-increasing popularity of these omnibus FIRs among investigating agencies must worry anyone who values the rule of law in our constitutional democracy,” he said. “We saw it being used in the Bhima Koregaon cases and now we see it being used in the Delhi communal violence cases. Construction of these conspiracy narratives in these FIRs with barely any factual or legal basis just facilitates arbitrary arrests under draconian laws like the UAPA. With diluted procedural protections and longer custody durations without a charge sheet, laws like the UAPA are perfectly suited to be used by the state against dissenters. What is perhaps even stranger, is people being arrested for a conspiracy and then just pick one of them to be released on bail for no legally valid reason. To be clear, bail must be given as much as possible, but if it becomes an arbitrary exercise based on legally extraneous considerations, very strong concerns of unfair discrimination arise.”

Manisha Sethi, who teaches at the Nalsar University of Law and has authored Kafkaland: Law, Prejudice, and Counter-Terrorism in India, says the UAPA’s chief characteristic is its arbitrariness such that its application is left to the discretion of the police.

“UAPA allows subjective bias to enter right from the time of registering of crime, investigation, prosecution and adjudication. It is a law that enables subjective bias. So for similar crimes it is up to the executive – the police, investigating agency or the government – to decide whether to use the anti-terror law or the ordinary criminal law since the definition of terrorism itself is so vague,” she said. “The law enumerates a range of activities that could qualify as a terror act, but the same offences can be tried under ordinary law as well. What is central in the definition of terror act is the  ‘intention to strike terror’.  It is entirely up to the police to decide whether to invoke the Arms Act in one case and to deploy terror charge in another case.”

Sethi said that “despite recovery of material evidence at the time of arrest (in Manish Sirohi’s case) and despite the fact that there is no specific charge against others except reference to some vague conspiracy , one is booked and then granted bail under the Arms Act, and the latter under UAPA, where bail is stringent and near impossible.”

She added that as numerous studies of the workings of anti-terror laws show, “the might of the anti-terror law falls mostly on the marginalised communities, especially the minorities, who are cast as the nation’s other.”

Apart from the contrasting charges levelled by the police – UAPA for Safoora, the Arms Act for Sirohi – the continued detention of a pregnant woman in the midst of the coronavirus epidemic is also cause for concern.

Several countries including India are issuing special guidelines for pregnant women and how they should be kept safe during the pandemic. During previous virus outbreaks like SARS, MERS, Ebola, and Zika, pregnant women were found to be vulnerable as they experienced adverse pregnancy outcomes. Taking a cue from past studies, pregnant women have been declared as a ‘high-risk group’. So far, however, neither the Delhi Police nor the courts have taken note of Safoora Zargar’s pregnancy and the risk she and her unborn child are being forced to confront as an undertrial.