The United Nations Working Group on Arbitrary Detentions (UNWGAD) observed that the arrest and custody of student activist Safoora Zargar, was a violation of The Universal Declaration of Human Rights and International Covenant on Civil and Political Rights.
The Working Group had arrived at this opinion at its 89th session convened November last year. On 11th of this month, It released a document titled "Opinion No 91/2020 concerning Safoora Zargar (India)".
Safoora, a Jamia Millia student was booked under the Indian Penal Code and the Prevention of Damage to Public Property Act, as well as the Arms Act and the Unlawful Activities (Prevention) Act during the anti-CAA protests in Delhi.
She was arrested at her residence in New Delhi on 10 April 2020 for inciting violence during the anti-CAA protests at the national capital. She was allegedly removed from her house by 10 to 12 men and 1 woman, none of them in uniform.
On 13 April 2020, the Metropolitan Magistrate's Court in Karkardooma allowed her bail plea with the observation that given her pregnancy, she needed proper medical care and that most of the offences levelled against her were bailable in nature.
However, on her release that day, she was immediately rearrested under another FIR for conspiracy behind Delhi riots.
She was finally released on bail on June 23, 2020 by the Delhi High Court on humanitarian grounds.
"The deprivation of liberty of Safoora Zargar, being in contravention of articles 2, 3, 7, 8, 9, 10, 11, 19, 20 and 21 (1) of the Universal Declaration of Human Rights and articles 2 (1) and (3), 9, 14, 19, 25 (a) and 26 of the Covenant, was arbitrary," the Working Group opined in the document
The Working Group analysed the violations submitted by the source and classified them into Categories 1,2 and 5, stating that Safoora's deprivation of liberty as arbitrary.
Detention lacked legal base
Under Category 1, the government failed to establish a legal basis for Safoora's detention, says the Working Group. It observed that Safoora was detained for an offence in which she was not named. The FIR mentions 'secret informers' had testified against her. The Working Group understood that the complainants were the police themselves, and they misused the law to target Safoora.
"The authorities must invoke that legal basis and apply it through an arrest warrant. In the present case, the arresting officers did not present a warrant at the time of arrest, in violation of articles 3 and 9 of the Universal Declaration of Human Rights and Article 9 (1) of the Covenant," The Working Group said.
Her medical conditions were not taken under consideration, and the necessity of the immediate arrest remains shady. "As soon as she was granted bail under First Investigation Report No. 48/2020, she was rearrested under First Investigation Report No. 59/2020. This clearly shows the mala fide intentions of the authorities and Delhi Police to keep her in custody for longer," the Working Group said. Serious charges, including UAPA, were added after the arrest. Patiala House Duty Metropolitan Magistrate expressed doubts on the police versions of new charges against her.
Regarding the detention conditions, Safoora was pregnant and had been denied medical care and a special diet. She wasn't allowed to meet her family or lawyers. She had been kept in solitary confinement since her arrest in April 2020. The Working Group found this as a violation of Article 9 (4) of the Covenant. It also noted that her pretrial detention, "having not been reviewed for appropriateness, lacked legal justification."
Penalised for exercising fundamental rights
Under Category 2, the working group observed, "The current deprivation of liberty of Ms Zargar results from the exercise of universally recognised human rights, in particular the right to freedoms of opinion, expression and peaceful assembly."
The Working Group further said that she was put under detention to curb her dissent through intimidation since she was engaged in the public protest against the Citizenship (Amendment) Act and the media liaison officer for the Jamia Coordination Committee.
"Freedoms of opinion and expression and peaceful assembly are fundamental human rights enshrined in Articles 19 and 20 of the Universal Declaration of Human Rights, Articles 19 and 21 of the Covenant and Article 19 of the Constitution of India," the Working Group observed.
Discrimination due to political views
According to the Working Group, her detention violated articles 2 and 7 of the Universal Declaration of Human Rights, and articles 2 (1) and 26 of the Covenant. Thus her detention was arbitrary.
It added that the government must respect, protect and fulfil the right to hold and express opinions, including those not following its official policy.
"In its jurisprudence that even when the detention of a person is carried out in conformity with national legislation, such law must also be consistent with the relevant provisions of international law," the Working Group observed.
Working Group's 'Follow-up procedure'
The Working Group requested that the Government of India take the steps necessary to remedy the situation of Safoora without delay and bring it into conformity with the relevant international norms. It also requested the government to release her, conduct an in-depth investigation on violation of her rights, and bring legislation to harmonise the Indian laws with international laws. Also, it requested the government to provide information on the above follow up requests made by the Working Group in six months.
The Working Group passed the case to the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Special Rapporteur on the situation of human rights defenders and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, for appropriate action.
Government did not care to respond
The Working Group says that on July 22nd 2020, it had already sent the source's allegation to the Indian government, requesting to provide detailed information by September 21st 2020, regarding Safoora's situation. It expressed its regret for the government's reluctance in responding or requesting an extension for the time limit for its reply. It further says that since the Indian government hasn't challenged the source's allegations, the Working Group has to render its current opinion based on all the information submitted to it.
The UNWGAD, which is under the UN Human Rights Council, comprises a panel of experts from Australia, Latvia, South Korea, Zambia and Ecuador.