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    reproductive justice or an escape from the laws? - the curious case of safoora zargar’s bail

    Nov 06, 2020.


    Siddharth Nayak (Managing Partner, Atharva Legal)

    Shubhendu Anand (Partner, Atharva Legal)

    Yash Raj Singh (Research Associate, Atharva Legal)


    The Safoora Zargar episode raises a few sensitive but pertinent questions.

    • Is pregnancy a valid ground for bail?
    • Is the denial of bail to an expecting mother disproportionate and discriminatory?
    • How can we align justice with biological parameters?

    These simple but beguiling questions and the rage around them are critical for societal introspection and legal jurisprudence because the hype around Safoora Zargar's arrest over her involvement in inciting anti-CAA riots in Delhi and her pregnancy borders on voyeurism.

    Before we begin, we must acclimatise ourselves to the truth that Safoora is not the first or last pregnant woman to be arrested. Nalini Sriharan, one of the core group members of the team that assassinated Rajiv Gandhi on 21st May 1991, was two months pregnant when she was arrested. She gave birth to a baby girl in prison who is now a doctor in UK. Sriharan’s death sentence was reduced to a life term only after Sonia Gandhi pleaded for clemency on the account of her daughter who was born in jail. It is pertinent and warranted that the strictures of criminal jurisprudence through precedents are duly evaluated in limine before we consider the grounds on which the bail was granted to the concerned accused.


    Fear against CAA:  


    To understand Safoora’s case or rather the narrative built being around it, we must start from the beginning. The anti-CAA protestors were protesting against an amendment that aimed to shelter refugees fleeing religious persecution in neighbouring Theocratic Islamic countries of Pakistan, Afghanistan & Bangladesh. The Ministry of Home Affairs had earlier brought The Passport (Entry into India) Amendment Rules, 2015 and 2016 and The Foreigners (Amendment) Orders, 2015 and 2016 beforehand to de-criminalising entry & stay in India of certain classes if they had entered India on or before 31 December, 2014. However, it was noticed that nationals of six communities belonging to Afghanistan, Bangladesh and Pakistan were still being termed as 'illegal migrants' under The Citizenship Act, 1955, thus being denied the opportunity to make requisite applications for citizenship in India. The amendment in Citizenship Act tackled this specific issue. The proposition that CAA “disenfranchises Muslims in India” is not reflected in either the letter or the spirit of the Act read with/without any other proposed and yet to be drafted amendments/acts. One must clearly turn a blind eye to the existing legal framework and the subsequent Citizenship Rules to be made in furtherance of CAA to further the aforementioned proposition to begin with.


    The culture of fear and paranoia created around the Citizenship Amendment Act, 2019 aggrandized questionable concerns to an extent that legitimate concerns got trivialized. Those who were dragged to the streets organically/inorganically were incensed over an amendment that had nothing to do with any existing citizen because the act was touted as disenfranchisement; It was made out to be a law that would make Muslims vulnerable to dispossession of citizenship. The spectre of CAA was described to look similar to the spectre of partition of 1947. In the hindsight, the comparison is so absurd that it masks not only a rudimentary understanding of law but showcases a deliberate attempt to instigate and propagate the fear.

    Why did this happen?

    Barry Glassner, an American sociologist, spoke how the deaths of River Phoenix (1993), Kurt Cobain (1994) and Smashing Pumpkins keyboardist Jonathan Melvoin (1996) helped American politicians look tough on drugs. Press announced ‘smack is back’ and “heroin has become the pot of the ‘90s … as common as beer.” Truth is the USA’s usage pattern did not change, nor did the drug win any new popularity among high school students.

    Glassner wrote in his book on the culture of fear in the USA, “With less than 1% of high school students trying heroin in a given year and the bulk of heroin use concentrated among inner-city adults, heroin is one of the least common causes of death among teens.” Media influences opinions, environments, and history more than we know, and meticulously devised campaigns have a much greater impact.  Mahatma Gandhi was revered or reviled when his first non-cooperation campaign struck the first mortal blow to the myth of the benevolent white British Raj. Gandhi’s iconic Dandi March in 1930 was the second. It trained the western media spotlight on India because it was designed to do so.

    Gandhi had been in touch with the Director of Indian Independence League in New York, directing him to publicise the protest. And so the New York Times published Gandhi’s appeal under the headline - Gandhi Asks Backing Here: Urges Expression of Public Opinion for India’s Right to Freedom. The following year, in 1931, Gandhi became Time Magazine’s Man of the Year. Media made Gandhi, in the West, who he is today. We must also not forget that the same magazine, eight years later in 1939, chose Adolf as the Man of the Year.

    Glassner writes, “It’s hard to expect the proper perspective from a watchdog whose dictum is ‘if it bleeds, it leads’.” Like all human emotions, fear doesn’t live in vacuum. Fear creates fear like aggression creates aggression. Fear is sold because victimhood is free. Fear is fashionable because it is cheap and primal. There is nothing inspirational about it. Fear drives politics, news, lobbies, education, health, courts and corporations. Glassner writes, “Between 1990 and 1998, the murder rate in the United States decreased by 20%. During that same period, the number of stories about murder on network newscasts increased by 600%.” Vested interests-built CAA protests using a culture of fear that was devoid of authentic information, law, logic and facts . The outrage around Safoora Zargar’s arrest is merely an extension of the culture of fear created around CAA to sustain the protests it. Unfortunately, as a nation we failed to adhere to the right form of dissent.


    Safoora Zargar’s Case: Cutting the Clutter


    Safoora Zargar was arrested by Delhi Police Special Cell on 10th April earlier this year under the Unlawful Activities (Prevention) Act in course of their investigation of Delhi riots that occurred during anti-CAA protests in February, 2020. Another Jamia Coordination Committee (JCC) member named Meeran Haider was arrested a week before Safoora. JCC, however, claims and submits on record that it has no role in the riots.


    The ongoing investigation is the legal process of accepting or refuting JCC’s claim and specifically establishing the validity of specific cause of action against Safoora’s alleged conduct . Some quarters are asking to view Safoora’s arrest within the arc of persecution of minorities, sexual humiliation and demographic profiling. The government is being painted as perpetrator of sexual and reproductive harm. It is being accused of incarcerating and inflicting reproductive harms on Safoora under custody conditions. The serious conspiracy charges against Safoora is lost in the din.  Safoora supporters display complete lack of trust accusing esteemed and established state functionaries like Tihar jail of vengeful misogyny, surveillance and anti-minorityism. Interestingly, Tihar jail owes its transformation to a female cop.


    Safoora Zargar is accused of provoking and inciting Muslims by propagating that Citizenship (Amendment) Act, 2019 is anti-muslim. She is accused of setting up secret offices in protest sites for mobilisation, preparation, and strategising, scheming, stocking, sloganeering and inflammatory speech, of being a key link of this 'conspiracy'. Delhi Police alleges that protests against CAA were planned to collide with US President Donald Trump's visit to India to attract international media attention to propagate a defamatory narrative that Government of the day was anti-muslim. There been plethora of academic / non-academic pieces already written over the “Hindu Supremacist” nature of the current government. Safoora is alleged to be acting in cohort with members of the JCC like Amanullah, Shifa ur Rehman, Meeran Haider, Asif Iqbal Tanha and others.


    Zargar was arrested in FIR 59/2020 soon after she was granted bail in another FIR 48/2020 registered at Jafarabad Police Station in connection with the riots. Her bail plea was rejected by the Patiala House Sessions Court which found prima facie evidence that there was a conspiracy to blockade roads as suggested by Sharjeel Imam. Though, JCC claims it has nothing to do with Imam. Safoora moved the Delhi High Court for relief which was granted through bail on humanitarian grounds in view of her 23 weeks pregnancy. Her pregnancy softened the learned court's view despite Delhi Police opposing Zargar's plea in its status report ordered on 18th June by the same court.


    In bail order dated 23rd June 2020, learned Justice Rajiv Shakdher of Hon'ble Delhi High Court granted bail to Safoora conditional on - i) The petitioner shall not indulge in any activity qua which she is being investigated which may infract the law. ii) She will also refrain from influencing, hampering or interfering with the ongoing investigation against her. iii) The petitioner will establish telephonic contact with the Investigating Officer, at least, once in fifteen (15) days. iv.) In case she is required to leave the National Capital Territory of Delhi, she will seek permission from the concerned Court. The court hearings were convened via video-conferencing on account of the Chinese virus outspread.


    The Foreign Judicial Precedents:

    Many are calling this a good time to ring in what they call ‘Reproductive Justice’. Reproductive justice is an American concept that evolved in USA courts by decisions on privacy and access to contraception (Griswold. v. Connecticut,1965), abortion (Roe v. Wade, 1973) and scope of state mandate to limit access to abortion (Casey v. Planned Parenthood 1982).

    Some activists say Zargar's case is not of rights of unborn but one of Zargar’s fundamental right to privacy, reproductive justice and protection against wilful exposure to prenatal harms. More often than not these assumptions are based on and colored by private opinions and assumptions about the state and its staff being malevolent. Modern activism is drawing inspiration from questionable movements of the past while completely ignoring (or worse, turn a blind eye) the truths that made such movements questionable.

    Both English and American laws do not support the view that the right to terminate one's pregnancy is "fundamental” as judged in Planned Parenthood of Southeastern Pa. v. Casey (505 U.S. 833) because gifting fundamentality would have pave way for selectiveness and empower Eugenics destructively.

    In USA of the 1870s the Comstock Laws helped state control women’s access to birth control methods. The late 19th century notion of voluntary motherhood emphasized the right to choose if and when to reproduce. First-wave feminists like Victoria Woodhull and Margaret Sanger promoted women’s reproductive rights, female suffrage and equality by endorsing eugenic ideas that discouraged reproduction among working class and immigrant women. The early 20th century eugenics movement led by scientists, physicians, reformers and lawmakers aimed to manage reproduction in order to improve the population and solve perceived social problems. This led to Nazis’ racial theory. Did people learn the lessons? No.

    US Supreme Court Justice Oliver Wendell Holmes said, “Three generations of imbeciles are enough” while summing up the Eugenics movement in Buck vs Bell. Holmes explained, “It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”

    Buck v. Bell was cited approvingly in Roe v. Wade for claiming that one does not “an unlimited right to do with one’s body as one pleases.” Reproductive justice believes reproductive autonomy is a critical aspect of dignity. Reproductive Justice is an American concept of self-claimed right to have children, not to have children, and to parent children in healthy and safe environments. It is a 1960s movement and alternative to reproductive rights advocacy focusing on limited debates around abortion and pro-life/pro-choice issues.

    Reproductive justice is claimed to be inclusive of bodily autonomy while excluding personhood of foetus vs right of choice debate. Reproductive justice is touted to be the form justice that focuses less on foetal rights and more on right of protection against reproductive, sexual and prenatal harm. It is individualist unlike Natalism which is collective. Formulated by American women of color with an inclusive social vision, reproductive justice claims to incorporate frameworks of human rights and intersectionality of women’s identities and struggles against sexism, racism, homophobia, and economic marginalization.

    The concept looks perfect until we realise it is too good to be true, that it is merely a shiny new name for the hackneyed bunch of self-claimed internationalist, modernist, intersectional, vast and vague ideas that swallow huge human philosophies to produce tiny and uneconomical profits. Prejudiced concerns gang up to trivialize legitimate concerns to create a culture of gag, to promote a culture of confusion, misinformation and fear. Too many cooks spoil the broth and too many intersections create too many unreal boundaries to tread, straddle or simply squat on.

    People of color in the USA are rallying and rioting behind one slogan alone – Black Lives Matter. Is it not wiser to let them focus on racism rather then dilute their movement by incoherent and asymmetrical aspirations and alliances? Some progressives today are like progressives of the old. They forget how eugenics inspired individuals to abort certain foetuses and do so with a discriminatory tilt in name of misplaced political correctness.

    Reproductive justice cannot be tied with gender rights. It must necessarily remain female-centric because humans are yet to evolve Sequential Hermaphroditism, uterus transplants are uncharted territory and sex-change operations lead to sorrow and suicides. Unlike manmade spectrums, reproduction is a rigid. Reproductive justice cannot be stretched to cover gender justice beyond a biological point.



    The Domestic Legal Framework, Judicial Precedents and International Obligations:


    The learned Delhi High Court which granted bail to Safoora Zargar was led by the dictum of 'personhood of foetus' as laid down in the American case of Roe vs Wade. Safoora's case is being force fit within the vast and vocal Roe vs Wade debate when the simple bail application need not go beyond the Law Commission's 135th report on 'Women in Custody'. The following acts are legally prohibited in context of pregnant women in India: Indefinite solitary confinement, prolonged solitary confinement, placement of a prisoner in a dark or constantly lit  cell, corporal punishment or the reduction of a prisoner’s diet or drinking water, collective punishment, indefinite prohibition on family contact, and instruments of restraint as a sanction for disciplinary action.


    As far back as in 1989, the Law Commission had recommended granting bail to women in section 437 CrPC after conceding that the Code of Criminal Procedure, l973 does take into account the fact that women deserve special consideration when dealing with the question of bail, "the absence of a more specific provision emphasising the duty of the court to take into account the fact that the accused is a woman, can be regarded as a lacuna in the present law". The concern of the CrPC for women is incorporated in a proviso to Section 416 whereby when a woman sentenced to death is found to be pregnant, the High Court can postpone the execution of the sentence.


    The Law Commission stated, "In brief, our proposal is that at the time of passing a sentence of imprisonment for life imprisonment or a specified term, the court should have the power to direct suspension of execution of sentence, having regard to certain considerations if the woman sentenced is pregnant. The suspension would be operative till the pregnancy comes to an end and such period the woman sentenced will be required under a bond to keep peace and be of good behaviour and (if the court so directs) to observe such other conditions as may be specified. The period of suspension of the sentence will not result in the reduction of the sentence of imprisonment as imposed by the Court."


    The Law Commision’s 135th report cited courts taking due note that women are not ordinarily denied bail even in serious offences. High Court, on the administrative side, was recommended to be vested with powers to supervise Sessions Judges over protection and proper look after of female prisoners. As regards the specific safeguards, female prisoners, on admission to jail, should be medically screened and examined by a lady medical officer. She should be kept separately in a female enclosure for such period as opined by medical officer. If the officer in charge of the medical officer suspects that a female prisoner is pregnant, the female prisoner shall be sent to the district hospital for detailed examination and report. The lady medical officer of the district government hospital to whom the female prisoner is referred shall certify the state of her health, pregnancy, duration of pregnancy and the probable date of delivery and the special diet if needed to be adopted keeping in view the guidelines enunciated by the Hon’ble Supreme Court in R.D. Upadhyay vs State of A.P. & Ors. (1998) 5 SCC 696.


    The report underlined the need for a gynaecological examination by a lady medical officer and proper prenatal and antenatal care shall be provided to the female prisoner. In cases of an advanced stage of pregnancy, the female prisoner shall be shifted to a female ward of the Government Hospitals and such a pregnant female prisoner shall be left in the woman's ward of the Government Hospital for not less than fifteen days after the birth of a child or for such long as may be advised by the Gynaecologist. Certain safeguards are desirable as regards the transit of Female prisoners between one jail to another, or for being taken to the court, or for investigations.


    The female prisoner shall not be handcuffed and shall not be required to wear any fetters or crossbars during such transit. The female prisoner shall be escorted by the Matron or Female warden. A female relative of the female prisoner shall be allowed to accompany the female prisoner during transit. It will be convenient if the inspection of jails includes provisions relating to female prisoners. Where there are no suitable arrangements in the locality for the detention of a woman, the woman shall be sent to an institution maintained under the Woman and Children's Institutions (Licensing) Act, 1956 or an institution recognised for the purpose by the State Government.


    The Ministry of Women and Child Development's 2018 report titled 'Women in Prisons' recommends that in case of pregnant prisoners, the provisions of the National Model Prison Manual must be followed strictly to make arrangements for temporary release for delivery of children in a hospital outside the prison. Suspension of a sentence may be considered in the case of casual offenders. Information about a woman’s pregnant status should also be made to the Court that has ordered the detention to enable the Court to grant bail (where appropriate) or modify the detention order as deemed necessary. The birth certificate of the child born to a woman in prison should never mention the prison as a place of birth to protect them against social stigma. Pregnant and lactating women should be provided with special diet as per the National Prison Manual. Mothers in the postnatal stage should also be allowed separate accommodation to maintain hygiene and protect their infant from contagion, for at least a year after childbirth.


    Further, instruments of restraint, punishment by close confinement or disciplinary segregation should never be used on pregnant or lactating women. Pregnant and lactating women should receive advice on their health and diet under a programme to be drawn up by a qualified health practitioner. Inmates should not be discouraged from breastfeeding their children. Medical and nutritional needs of women prisoners who have recently given birth whose babies are not with them in prison, women who have undergone an abortion or have had a miscarriage should also be included in treatment and nutrition programmes. Women prisoners must have access to urine pregnancy test kits within a prison, as per their requirement, free of cost. Pregnant women must also be provided information and access to abortion during incarceration, to the extent permitted by law. Pregnant women must be given the option to take up work during their pregnancies and in the post-natal phase if they so choose. Work provided to them must be suited to their health conditions. These recommendations are a node to Rule 48 UN Bangkok Rules which says pregnant/lactating women should receive advice on their health and diet under a programme to be drawn up by a qualified health practitioner.


    India has committed itself to comply with various international obligations under different human rights treaties to protect sexual and reproductive health and rights. India is party to International Covenant on Economic, Social and Cultural Rights (ICESCR, Articles 2, 3, 10, 12), Convention on the Rights of the Child (CRC), Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW, Articles 10, 12, 14, 16), and the International Covenant on Civil and Political Rights (ICCPR,  Articles 2, 3, 6, 7, 10, 23).

    Medical Termination of Pregnancy Act 1971 (MTP Act) applies to all women including women prisoners. In Hallo Bi v. State of Madhya Pradesh, an undertrial woman prisoner prayed for permission to terminate her pregnancy which was a result of forced prostitution. The High Court in permitting the woman to terminate her pregnancy relied on the Supreme Court’s judgment in Suchita Srivastava v. Chandigarh Administration which had held that a woman’s right to make reproductive choices is a dimension of personal liberty guaranteed under Article 21 of the Indian Constitution. The Court held that “forced prostitution” amounted to rape, and hence was covered within one of the conditions stipulated by Section 3 of the MTP Act for termination of pregnancy.

    The Bombay High Court felt it was unnecessary to seek permission from an external board to adhere to the request of an incarcerated woman to terminate her pregnancy. In High Court on Its Own Motion v. State of Maharashtra, the learned Court held that all pregnant women have fundamental right to reproductive choice under Article 21 of the Indian Constitution including the right to terminate pregnancy. The Court directed that every woman prisoner of reproductive age should be tested on admission to the prison and if found to be pregnant, the medical officer should inform the woman of her option to terminate her pregnancy under the MTP Act. Relying on international human rights law, the Court noted that human rights are vested in a person only on birth, and an unborn foetus does not have human rights.

    The Gujarat High Court in State of Gujarat v. Jatin Bhagvanbhai Prajapati & Ors., implemented one of the guidelines in R.D. Upadhyay vs State of Andhra Pradesh in relation to granting bail to pregnant women to deliver their children outside the prison. After convicting the woman accused, on being informed that she was pregnant, the Court suspended her sentence and granted her bail for eleven months. The Court also directed the jail authorities to permit the woman to keep her children with her in the prison as per Jail Manual.


    We can safely say India has requisite and largely uniform structure in place for pregnant prisoners. Reproductive laws can not be made uniform at microlevels. In Pannalal Bansilal and Ors. v. State of A.P. and Anr. (1996) 1 SCR 603, the Hon’ble Supreme Court observed, “In a pluralist society like India, a uniform law, though it might be desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation. In a democracy governed by rule of law, gradual progressive change and order should be brought about. Making law or amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute.”

    It is an historic fact that Muslims and Hindus in India have their personal laws which embody their own distinctive evolution and which are coloured by their own distinctive backgrounds. The Hindu Bigamous Marriages Act was introduced as social reform for Hindus despite them having own personal laws. The apex court upheld the act while the same court refused to meddle in Muslim polygamy in Ahmedabad Women Action Group (AWAG) and Ors. vs. Union of India (1997) 3 SCC 573.

    The institution of marriage is differently looked upon by the Hindus and the Muslims as the current triple talaq case shows. Whereas to the former, it is a sacrament, to the latter it is a matter of contract. Ideas like reproductive justice require enabling environment to grow and function. It is unfair to deny religious personal laws a chance to help build reproductive freedoms. In Sarla Mudgal and Ors. v. Union of India and Ors. 1995 Cri LJ 2926, the apex court noted: “Article 33 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Article 25 26 and 27. The personal law of the Hindus, such as relating to marriage, succession and the like have all a sacramental origin, in the same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a "common civil code" for the whole of India.”

    Reproductive freedoms are unique because they touch all mankind while touching one half gentler than the other. Right to reproductive justice being claimed in Safoora Zargar's case need not be put within the framework of the fundamental rights as outlined in Justice K.S.Puttaswamy (Retd) vs Union Of India because India has frameworks in place (including Article 21) to deal with reproductive and prenatal harms. Any crime has three characteristics: (i) it is a harm, brought about by human conduct which the sovereign power in the State desires to prevent (ii) among the measures of prevention selected is the threat of punishment and (iii) legal proceedings of a special kind are employed to decide whether the person accused did in fact cause the harm, and is, according to law, to be held legally punishable for doing so.

    The defamatory allegations of prenatal harms to Safoora by alleged persecution during incarceration are based on prejudiced beliefs, built on thin air. The Madras High Court in U. Ishwarya Vs. Director of Medical Education and the Allahabad High Court in Anshu Rani vs State Of UP have clearly defined motherhood and the rights accrued to mothers. To become a mother is the most natural phenomena in the life of a woman. Motherhood then has become a contentious issue in the modern society, particularly, in economic frontier, as the competing market interests override notions of culture and social justice like gender equity. Person-hood of a woman as mother is her acclaim of individuality essentially valued as liberty of her life. This was so designed by culture, tradition and civilisation. The strain of reproductive justice that seeks to disturb the harmony between rights of mothers and foetuses must be resisted because mothers and children are born together.