Safoora Zargar's Detention Against International Law: American Bar Association Report

"It is unclear why alternatives to pre-trial detention were not considered adequate by the court in this case," the bar association said.

New Delhi: The Center for Human Rights at the American Bar Association (ABA) has said in a report that Safoora Zargar’s detention is not in compliance with the international treaties to which India is a state party.

The ABA is one of the oldest and largest associations of lawyers and law students in the United States.

The Center specifically stated that denial of bail to Zargar is not in consonance with the provisions of International Covenant for Civil and Political Rights (ICCPR), which permit pre-trial detention only for narrow purposes such as to “prevent flight, interference with evidence, or the recurrence of the crime”.

It further added 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”.

The Center also said that the lack of evidence in the case should have made the Court consider alternatives other than detaining Zargar. “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,” it noted.

The report by the Center also expressed concern regarding Zargar’s vulnerability as a pregnant woman and a high blood pressure patient.

Also read: Safoora Zargar Case Lays Bare How Superficial India’s Respect for Motherhood Is

“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”.

The Center highlighted that Zargar was at risk of exposure to COVID-19 in Tihar jail, which is overcrowded, and assistant superintendent of the jail has tested positive for COVID-19.

Urging the immediate release of Zargar, the Center 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.”

Zargar, a 27-year-old PhD student of Jamia Milia University had led the protests against the Citizenship (Amendment) Act, 2019.

On April 10, she was arrested for allegedly blocking a road way during the protests and was granted bail owing to “her pregnancy, health condition, and the directives issued by the Indian Supreme Court on decongestion of prisons during COVID-19.” However, she was immediately re-arrested under the Unlawful Activities Prevention Act 1967 (UAPA), for allegedly conspiring the Delhi riots.