CASE ANALYSIS – SAFOORA ZARGAR V. STATE OF NCT DELHI

Citation	2020 SCC OnLine Del 729
Date	23 June, 2020
Court Name	High Court of Delhi
Plaintiff/Appellant/Petitioner	Safoora Zargar
Defendant/Respondent	State
Bench	Justice Rajiv Shakdher

FACTS OF THE CASE

The case revolves around the arrest and subsequent bail application of Safoora Zargar, a research scholar from Jamia Millia Islamia University, in the backdrop of the widespread protests against the Citizenship (Amendment) Act, 2019 (CAA) and the ensuing communal violence in North-East Delhi in February 2020.

The legally relevant facts that culminated in the present legal dispute are as follows:

• Background of protests and riots: In late 2019 and early 2020, various parts of India, including Delhi, witnessed significant protests against the CAA. Ms. Zargar, as the media coordinator of the Jamia Coordination Committee (JCC), was an active participant and organizer of these protests. The prosecution alleges that these protests were part of a larger conspiracy to instigate communal violence. This culminated in riots that engulfed North-East Delhi between February 23 and 26, 2020, resulting in over 53 deaths and extensive property damage. The prosecution’s narrative painted the anti-CAA protests not as an exercise of democratic dissent but as a premeditated effort to create widespread public disorder, timed to coincide with the state visit of the U.S. President to tarnish India’s international image.
• Arrest and invocation of UAPA: Ms. Zargar was enchanted by the Delhi Police on April 10, 2020. The arrest was made in connection with FIR No. 59/2020, registered by the Delhi Police Special Cell, which was probing the contended conspiracy behind the riots. While she was firstly granted guarantee in a related case concerning a kick at Jaffrabad, she was incontinentlyre- enchanted under this more austere FIR. The charges against her were extensive and grave, involving sections of the Indian Penal Code, 1860, related to conspiracy( Sec 120B), sedition( Sec 124A), murder( Sec 302), and promoting enmity between nonidentical groups( Sec 153A). Critically, she was also charged under Sections 13, 16, 17, and 18 of the wrongful exertion( Prevention) Act, 1967( UAPA), an strictanti- demon law. The conjuration of UAPA constitutionally remodeled the legit terrain for her guarantee prayer, as it brought around into play the restrictive conditions of Section 43D( 5).
• Allegations by the state: The prosecution’s central claim was that Ms. Zargar was a key conspirator in the Delhi riots. The State alleged that she, along with other co-accused, orchestrated a “sinister plot” with the objective of destabilizing the democratically elected government. The police accused her of delivering inflammatory speeches and being instrumental in organizing protest sites, such as the one at Jaffrabad metro station, which allegedly escalated into violence. The State’s status report filed in the High Court described her actions as not being “licit or legitimate” and accused her of weaving a “web of actions animated by unlawful object of creating terror and disaffection.” The prosecution further alleged that she managed WhatsApp groups where conspiratorial messages were exchanged and was involved in procuring materials for the protests that turned violent.
• Rejection of bail by Trial Court: Prior to approaching the High Court, Applications of Ms. Zargar were rejected by the trial court. The trial court, in its detailed order dated June 4, 2020, found that there were “reasonable grounds” for believing that the accusations against her were prima facie true. It relied on the prosecution’s evidence, including witness statements and WhatsApp chats, to conclude that there was a conspiracy to at least block roads (chakka jam). The trial judge famously used the metaphor, “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,” to justify denying bail. The court invoked the stringent conditions for bail under Section 43D(5) of the UAPA, which acts as a statutory bar on granting bail if a prima facie case is made out. It held that even if she did not directly participate in violence, the charge of conspiracy meant that the acts of co-conspirators were admissible against her.
• Humanitarian grounds and health condition: A overcritical and fairly applicable fact was Ms. Zargar’s particular portions. At the time of the High Court hail, she was roughly 23 weeks expectant. Her counsel submitted that she passed from Polycystic Ovarian complaint( PCOS) and had a history of urinary land infections, making her liable to health complications, especially within the congested terrain of a captivity. This susceptibility was added by the ongoing COVID- 19 epidemic, which posed a significant threat to her and her future child. These procurators formed the primary base of her prayer for guarantee on philanthropic premises , arguing that her lasted internment posed a grave threat to her abecedarian birthright to life under Article 21 of the Constitution.

ISSUES OF THE CASE

The key legal questions that were placed before the High Court of Delhi for its consideration were:

1. Whether Ms. Safoora Zargar was entitled to regular bail on humanitarian grounds, particularly given her advanced pregnancy (23 weeks), reported PCOS complications, and the elevated risk of COVID-19 infection in overcrowded Tihar Jail?

2. Whether the statutory embargo under Section 43D(5) of the UAPA, which mandates denial of bail if accusations are prima facie true, could be set aside or deferred when faced with compelling humanitarian circumstances and the fundamental right to life and dignity under Article 21?

3. Whether the court could grant bail absent adjudication on merits, essentially bypassing the stringent prima facie threshold established under Section 43D(5) and reaffirmed by the Supreme Court in NIA v. Zahoor Ahmad Shah Watali (2019)?

4. Whether the court’s decision—based solely on the State’s humanitarian concession—should carry precedential value, potentially undermining the rigor of UAPA bail jurisprudence in future cases?

JUDGMENT

Issue 1: Humanitarian Grounds

Justice Rajiv Shakdher granted regular bail, emphasising Ms. Zargar’s advanced pregnancy (approximately 23 weeks), her reported polycystic ovarian syndrome, and the grave risk posed by COVID-19 within Tihar Jail. This move was enabled by a significant turning point: Solicitor General Tushar Mehta’s statement in court, representing the State’s position that bail could be granted “purely on humanitarian grounds”. He expressly requested that the order not be treated as precedent. Justice Shakdher accepted this shift, making humanitarian concerns the sole basis for bail.

Issue 2: Statutory bail embargo vs fundamental rights

Rather than directly confronting Section 43D(5)’s strict bail embargo, the court elected to treat the State’s non-opposition as equivalent to a waiver of the statutory bar. This effectively avoided a legal conflict between UAPA’s rigid bail provisions and Article 21 rights life, health, and dignity. In doing so, the judgment steered clear of formal judicial interpretation of the bail bar, module deferred on account of compelling humanitarian grounds.

Issue 3: Bail Without merit adjudication

Justice Shakdher deliberately refused to examine the merits of the allegations—including conspiracy, inflammatory speech, or whether accusations were prima facie true—because “neither party addressed the court on merits”. This allowed the Court to sidestep the mandatory prima facie test under UAPA and the precedent in Watali, thereby anchoring its decision to procedural and humanitarian considerations only.

Issue 4: Precedential value

Crucially, the judgment explicitly stated that the order shall not be treated as precedent. This clause was insisted upon by the Solicitor General and accepted by the court to ensure that this was a case-specific, exceptional relief. The decision was precisely circumscribed to avoid signaling any softening of UAPA’s bail norms in unborn cases.

The bail was granted subject to the following conditions:

1. The petitioner was to furnish a personal bond of ₹10,000 with a surety of a like amount.
2. She was directed not to indulge in any activity for which she was being investigated.
3. She was to refrain from influencing, hampering, or interfering with the ongoing investigation.
4. She was required to establish telephonic contact with the Investigating Officer at least once every fifteen days.
5. She could not leave the territory of the National Capital Territory of Delhi without seeking prior permission from the concerned court.

REASONING

The Delhi High Court’s approach in Ms. Zargar’s bail application is noteworthy for its careful balancing of individual rights and national security imperatives, achieved without resolving the fundamental legal questions posed by the UAPA. Rather than wading into a potentially polarizing debate over the Act’s strict bail provisions or the underlying facts of the case, the Court crafted a path that addressed the petitioner’s immediate humanitarian needs while preserving the integrity of anti-terror legislation.

1. Primacy of the state’s concession

At the heart of this bail order lies the Solicitor General’s in-court announcement on June 23, 2020, that the State would no longer oppose Ms. Zargar’s release “purely on humanitarian grounds.” This represented a dramatic shift from the earlier position contained in the police status report that argued against bail on the basis that the jail’s medical facilities were sufficient and that pregnancy did not constitute a valid defence. By expressly withdrawing that opposition and stipulating that the order carry no precedential weight, the State effectively surrendered its primary argument for detention. The Court, in turn, treated this concession as dispositive: it enabled bail without subjecting the record to further factual or evidentiary scrutiny, thereby bypassing what would otherwise have been a lengthy and contentious contest over the adequacy of medical care and the seriousness of the offences alleged.

2. Strategic avoidance of merits and the UAPA hurdle

Section 43D(5) of the UAPA sets an exceptionally high bar for bail: courts must deny release if, upon reviewing the prosecution’s materials, the accusations seem prima facie true. The Supreme Court’s decision in Watali reinforced this by requiring judges to accept the prosecution’s version without conducting a mini-trial. In Ms. Zargar’s case, however, neither prosecution nor defence advanced arguments on the merits—no witness testimony was examined, and no evidence was argued in open court. Recognizing this vacuum, Justice Shakdher deliberately chose not to embark on a prima facie review. In effect, he sidestepped the statutory bail bar entirely, allowing the bail decision to rest on procedural grounds rather than on a determination of whether the UAPA charges would withstand initial scrutiny.

3. Implicit acknowledgment of humanitarian grounds

Although the Court stopped short of framing its decision as an explicit humanitarian exception to the UAPA, its acceptance of the State’s stance serves as a tacit recognition of the gravity of Ms. Zargar’s circumstances. Her advancing pregnancy compounded by pre-existing medical conditions such as PCOS and the elevated risk of contracting COVID-19 in a congested prison setting were argued as posing a real and immediate threat to her life and that of her unborn child. International norms, like the UN Bangkok Rules, caution against incarcerating pregnant women save in the most exceptional cases. By affording bail on the basis of these concerns, the Court implicitly affirmed that, under dire health and humanitarian considerations, the scales of justice may tilt in favour of personal liberty yet it did so without prescribing a general legal exception.

4. The Non-Precedential nature of the order

A defining feature of this order is its express non-precedential character. The Solicitor General insisted and the Court concurred that this decision apply solely to Ms. Zargar’s unique facts and not to future UAPA bail applications. This caveat ensured that the State’s concession remained a single-case act of clemency rather than the seed of a broader shift in counter-terror litigation. By bedding this condition, the Court secured immediate relief for the supplicant but left the strict bail frame of the UAPA complete for other indicted emphasizing judicial restraint indeed in the face of pressing philanthropic imperatives.

In sum, the Court’s logic ingeniously navigated philanthropic enterprises, procedural formality, and statutory rigor securing liberty for Ms. Zargar without unsettling the wider armature of public security law.

REFERENCES

1. Safoora Zargar v. State, 2020 SCC OnLine Del 729.
2. https://indiankanoon.org/doc/166287010/ 
3. https://www.scconline.com/blog/post/2020/06/23/breaking-delhi-hc-grants-bail-to-activist-safoora-zargar/ 

Written by Anushka Singh student of Aligarh Muslim University, AMU, Aligarh an Intern under Legal Vidhiya.

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