The legitimacy of constitutional courts is imperilled by their tacit deference to indefensible state action.

The incarceration of student activist Safoora Zargar and the obduracy of courts in refusing her bail raises some fundamental questions on which the very survival of the Constitution depends. This is about Zargar first, but as she must, she leads us into the deeper, more searching quest for India’s soul.

Zargar, a 27-year-old research scholar in sociology at Jamia Millia Islamiaa, Delhi, was arrested almost exactly two months ago, on April 10, on charges of blocking a road and obstructing traffic. After securing bail in that case, she was re-arrested on April 13 under the draconian provisions of the Unlawful Activities (Prevention) Act, 1967. She was implicated in a conspiracy that allegedly sparked the violence that engulfed Delhi at the end of February and placed in judicial custody.

In reality, Zargar was part of the peaceful resistance against the discriminatory Citizenship Amendment Act – a resistance led by women and students, notably the women of Delhi’s Shaheen Bagh neighbourhood. At the time of her arrest, Safoor Zargar was pregnant.

What does the brutality of the state towards a pregnant Muslim peaceful resister during a pandemic lockdown tell us about the deep perils in which our Constitution is mired at this moment? We have reached a nadir. The use of imprisonment and carcerality under conditions of pandemic vulnerabilities to willfully deny Zargar her right to personal liberty is one part of an exercise of state repression.

Added to this is the move by the state to target her in such a manner as to impose disproportionate punishment that includes imposing the risk of prenatal harms and inflicting injuries that may intergenerationally maim a pregnant resister.

Indefensible state action
It is far more grave than a violation of Article 21, which protects life and liberty. What does it tell us about the technologies of rule of this state, which presses its armed Hindutva civilian foot-soldiers, its supporters in the media, its armed police, and its collusive criminal justice system into service to hold Zargar in custody in the knowledge that she is pregnant, although the case against her is clearly one that is targeted and a display of executive vindictiveness?

What does it tell us about the power of Zargar’s resistance, and the lack of urgency of intervention on her behalf by constitutional courts in the name of the Constitution? The legitimacy of constitutional courts is imperilled by their tacit deference to indefensible state action.

The Unlawful Activities (Prevention) Act, 1967, under which Zargar has been arrested, like other anti-terror laws in India is built on the presumption of state impunity, and criminalises any opposition to arbitrary actions by the state. There are two distinct categories of offences: “unlawful activities”and “terrorist activities”.

Between 2008 and 2013, amendments were introduced to demonstrate diligence to international standards of combatting terrorism. Section 2(o) of the act defines “unlawful activity” as “any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise), – (ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or (iii) which causes or is intended to cause disaffection against India”. Chapters IV-VI (Sections 15-40) of the act focus on terrorist offences and organisations.

The prosecution’s case at Zargar’s bail hearing in Delhi’s Patiala House court on June 4 is, and the judge agreed, that “[a]ny activity which has the 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 an activity would obviously be treated as an unlawful activity within the meaning of 2(o) UAPA” (emphasis added). It was alleged that Zargar delivered an inflammatory speech on February 23 that led up to the riots in Northeast Delhi, an allegation denied by her lawyers as inaccurate.

Although in the judge’s view it was not necessary to go into the merits of the case, a perusal of the court order shows that the judge safely inferred from WhatsApp chats and statements recorded that there was at least “a conspiracy to at least blockade the road (chakka jam)”. It was an “unlawful assembly” because a gathering of five or more people with a “common object to commit any offence” is unlawful.

Allegations of conspiracy
The court found it could not disagree with 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”. There are no details provided in the order.

When the allegation of conspiracy was refuted by the defence on grounds that Zargar was not physically present at the scene, the court went a step further and prejudged the case with the clear observation that since there was prima facie evidence of conspiracy, it would be admissible against all, even those not physically present.

When her vulnerable health condition was brought to the notice of the court, it simply instructed the “concerned jail superintendent” to provide adequate medical attention given her “precarious medical condition” .

Bail was refused for the third time because in words of the learned judge, “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”.

The court said that it was “not concerned with the sanctity of the material available on record, however, considering the material available on record, it cannot be said that there is no prima facie case made out against the applicant/accused”. However, although the case made out by the prosecution pertained to under 2(o) of the Unlawful Activities (Prevention) Act “unlawful activity” and 2(p) “unlawful assembly,” the court circumscribed its own limits by citing “the statutory embargo under provisions of Section 43(D)(5) [which] is attracted in the instant case”.

Security forces beat students in a reading room of Jamia Millia Islamia.

Judicial pusillanimity
This is a section that sets out conditions for treatment of persons accused of offences under Chapters IV (“Punishment for Terrorist Activities”) and VI (“Terrorist Organisations”). As per Section 43(D)(5), the refusal to consider bail must be based (as it should) on the “opinion of the court that there are reasonable grounds for believing that the accusation against such person is prima facie true”.

Judicial discretion, which is critical in the matter of personal liberty, is mis-read by the court to mean “statutory embargo”’ in a classic illustration of “judicial pusillanimity” – a term used by the late Justice Leila Seth and quoted with appreciation by the Supreme Court in the Navtej Johar judgment in 2018.

There are more serious flaws. The discussion of the facts of the case do not allude to “terrorist activities.” The court admitted that the material on record might have serious flaws, and yet accepted that there was a case serious enough to keep Zargar in custody. The most serious error this order made is that in colluding with the prosecution’s argument and refusing bail under Section 43(D)(5), the court conflated “unlawful activity” with “terrorist activity”. The only reference even by the prosecution was to “unlawful activities”.

There is a manifestly arbitrary application of Section 43(D)(5) to an allegedly “unlawful” activity (not a “terrorist activity”) resulting in a disproportionate punishment even before trial.

Finally, disaffection against the government is interpreted by the court as disaffection against India as per the Unlawful Activities (Prevention) Act.

The prosecution, in the bail hearing, submitted a seizure memo from another case of empty crates and bottles, stones and bricks, from an FIR registered in Khajoori Khas Police Station bearing a different number from Zargar’s case. Totally out of context therefore, the court observes that “Delhi riots were the result of a larger conspiracy to disrupt the normal functioning of the city and to overawe the government machinery by resorting to force and violence”.

Fixing criminal liability
Without any judicial deliberation or attentiveness to the facts, details and inconsistencies on record before it, the court was quick to fix criminal liability on a Muslim woman in this case for mass violence and immeasurable harm to life and property, as also the incitement to violence in Northeast Delhi in late February that targeted Muslims. This despite Justice S. Muralidhar of the Delhi High Court on February 26 ordering FIRs to be registered against Bharatiya Janata Party leaders after recordings of their incendiary hate speeches ahead of the riots were played in the courtroom.

This needs to be understood and deliberated on publicly. Which are the embers, which the wind, which the spark, how far is far, and which the fire? This is a case of personal liberty. We live in an era when the principle of non-retrogression of fundamental rights – indeed of constitutional morality – has been affirmed by the Supreme Court, and the right to fair trial and the fullest enjoyment of the right to life and personal liberty was held to lie at the core of the idea of human dignity.

Five foundational figures who shaped the contours of India’s soul rise phoenix-like before me. They are figures constitutional courts may only disregard with deep peril to their own legitimacy. BR Ambedkar, Abul Kalam Azad, Jaipal Singh, Dakshayani Velayudhan and MK Gandhi. In his monumental Framing of the Indian Constitution: A Study in 1968, B Shiva Rao records that “Ambedkar had an interesting suggestion to make: the candidates belonging to a majority community should, before being declared elected, poll a minimum number of votes from among the minority communities in their constituencies. This would have amounted to a minority exercising a sort of veto on the majority communities…”

Minorities in the Constituent Assembly of course referred to religious minorities, scheduled castes and scheduled tribes – so what Ambedkar suggested was a cumulative minority referendum on the majority candidate in every constituency (in the immediate aftermath of Partition). His was the lone voice (as was often the case) – and this is prescient, worthy of recall especially in the light of the questions Zargar places before us and the events that foretold her incarceration.

In her work on Azad, Syeda Hameed points out that he, placing Hindu-Muslim unity before Swaraj, anticipated Ambedkar’s idea on the right to veto, when in 1940 he declared: “Any constitution that is framed in future for India, must contain the fullest guarantees for the protection of the rights and interests of minorities. What are the necessary safeguards…? This judgment rests with the minority not with the majority [and]…therefore, must be formulated by their consent, not by majority vote.”

Shaunna Rodrigues in her essay “Abul Kalam Azad and the Right to an Islamic Justification of the Indian Constitution” has traced the ways in which Azad re-inscribed the boundaries of the political, challenged British imperialism and articulated “ethical, moral and theological arguments emerging from, among other sources of Indian traditions, Islam, on the nature, justification and critique of a unified rule of law for a diverse people”.

In doing this, he pointed to the plural foundations of self-rule and the rule of law in independent India that played a constitutive role in the framing of the Constitution.

Manufacturing affection
There is Jaipal Singh who brought in other dimensions of the political drawing on the Adivasi experience of colonial and majoritarian subjugation into his definition of self-rule: “The new Constitution will be judged not by the provisions for minorities but by the way these are worked to their best advantage” (”Adivasidom”); and Dakshayani Velayudhan, the only Dalit woman in the Constituent Assembly whose experiences of resisting untouchability marked the ways in which the suffering, resilience and resistance of Dalits made the Constitution what it is.

And can we forget Mahatma Gandhi’s statement in court in 1922: “Affection cannot be manufactured or regulated by law…I hold it to be a virtue to be disaffected towards a government which in its totality has done more harm to India than any previous system…Holding such a belief, I consider it to be a sin to have affection for the system.”

When Safoora Zargar protests against the carceral, Islamophobic, Hindutva regime that passed the Citizenship Amendment Act, she is fighting to protect India’s soul. She did this, not with guns and inflammable substances and weapons of destruction and torture, but through peaceful demonstration. Not through incendiary speeches that incite mass violence, but through the singular focus on the repeal of an immoral, counter-Constitutional law.

And she protests with hundreds of thousands of others. This too, is our inheritance. Ethical dissent and civil disobedience. Is the court saying today that peaceful protest by Muslims against a law that explicitly targets them and creates a hierarchy of citizenship – in violation of every fundamental right in the Constitution – is an incitement to state and majoritarian violence?

Kalpana Kannabiran
The Writer is a professor and director of the Council for Social Development, Hyderabad.

Courtesy Scroll.in