Gautam Bhatia on Safoora Zargar's bail hearing

Gautam Bhatia, writing in Scroll, finds fault with the Sessions Court's failure to grant bail to Safoora Zargar. Yet, given the nature of the Unlawful Activities Act, what else could it have done? Clearly, there had been terrorist activity. Equally clearly, either Zargar had been involved in organizational work of a type which prima facie might have been part of a terrorist conspiracy or else, prima facie, no charge against her was sustainable.  But a bail court is not the place to go into the merits of the case. Its decision is bound by the relevant law- which was passed by the UPA Government in 2008- a time when there was talk of the great Hindutva terrorist threat to India.

Thus, since bail was opposed by the prosecutor- to my mind a mistake, though this may be corrected under the proviso that no precedent is created- the Court had little choice. But its 'ratio' in doing so was the draconian provisions of the act. Any obiter dicta uttered was irrelevant. Bhatia, however, claims the obiter dicta was actually the ratio and that the Court, not the Act, was responsible for perversely keeping Zargar in Jail.

He writes-

“… 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.”


When a court needs to rely upon metaphor instead of law to justify keeping an individual in prison, it is perhaps time for the justice system to take a long, hard look at itself.

But this is not that time. The Court was relying on the Law which states- ' “if the Court is of the opinion that, there are reasonable grounds for believing that the accusations against such person are prima facie true, he shall not be released on bail.' What happened is that the prosecution convinced the Court that 'prima facie' the accusation was true.
This is the ratio given by the judge-

 Perhaps a trial court- examining the evidence more thoroughly- will come to a different conclusion. In denying bail, this particular Court leaves open that possibility but, as obiter dicta, says 'you have only yourself to blame if you look prima facie guilty. You were playing with fire and lo and behold, there was a conflagration. That is why you will have to cool your heels in jail till your trial.'

Gautam Bhatia does not appear to be disturbed by the draconian Act under which Hindus like Sadhvi Pragya was jailed. But the Sadhvi got bail when the NIA dropped the more serious charges. She is now a Member of Parliament.

Who knows? Perhaps Safoora Zargar will follow a similar path. She may be an M.P or a Cabinet Minister one of these days. If the charges against her are false, as most people believe the charges against the Sadhvi were false, she will be a hero and a role model. Different political parties will compete to offer her election tickets. But, once in power would she campaign to scrap the draconian law under which she herself suffered? What is disturbing about Indian politics is the manner in which poachers turn gamekeepers so quickly and easily. Bhatia, of course, is not in Indian politics. He gets disturbed by metaphors because he is a posh English gentleman.

The order passed on Thursday by a District and Sessions Judge at Patiala House, New Delhi, denying bail to Safoora Zargar, an accused in what has colloquially come to be known as the “Delhi riots case”, is a deeply disturbing one.

A lot of people have felt disturbed by the draconian nature of the relevant law. Perhaps it will be overturned. It may also be that Zargar's Defense can exonerate her. If she is innocent- as many believe- this is the outcome we should expect. If it isn't, then either all cases under the Act should be fast-tracked or else the no bail condition should be dropped.

It is disturbing because it takes the Unlawful Activities (Prevention) Act, a law so stringent that it precludes judges from granting bail if even a “prima facie” case is made out, and then stretches its provisions from one side, and the facts from the other, to ensure that the prima facie case is made out.

Bhatia can offer no evidence that this has happened here. The Judge said there is a prima facie case. Thus no bail can be granted as per the law. That's it. That's the whole story.

In the process, what it effectively does – as we shall see – is criminalise the exercise of one set of constitutional rights (the freedom of speech and expression), and deny the exercise of another (personal liberty).

This is not the case. Bhatia will not be able to sustain this argument.

A close reading of the bail order reveals the following:

But skimming it would have the same effect.

Taking only the prosecution’s case (as this was a bail hearing), there is evidence that there existed a “conspiracy” to block a road, which the accused was involved in (the role of the accused in this “conspiracy” – even prima facie – is not spelt out, only some WhatsApp messages and disclosure statements are referred to).

If Bhatia thinks Zargar wasn't involved in blocking a road, why does he not say so? In making a decision on bail in accordance with the law, it is sufficient to show some 'application of mind'. But that is all that is required.

That “one cannot ignore the case of 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”.

This is quite reasonable. That's exactly what happened.

The order does not clarify what “unprecedented scale” means.

It means 'bigger than ever before'. What's wrong with that?

It does not clarify whether the “unprecedented scale” refers to the same “conspiracy” referred to in (1), or whether it refers to something else;

it refers to the same conspiracy. It has nothing to do with the conspiracy to shrink all my trousers so I can no longer fit into them.

if the latter, the order does not clarify how the participation of the accused was deduced in that separate “conspiracy”; if the former, the order does not clarify the link between the “conspiracy” to block the road and its “unprecedented scale”, in a country where blocking roads happens every second day.

Bhatia is being silly. Yes, roads get blocked everyday but Shaheen Bagh was not an everyday occurrence. It attracted attention because of its 'unprecedented scale'.

That although there was no evidence of the accused committing any act or making any speech that instigated violence,

but such evidence is not required in a 'conspiracy' case.

nonetheless, as there existed a “conspiracy”, nonetheless “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”, and that consequently, the “acts and inflammatory speeches of the co-conspirators are … admissible against the accused.”

What is wrong with that? The Court says there is a prima facie case- otherwise the thing would have been dismissed out of hand- and thus the actions of Zargar's alleged co-conspirators affect her own guilt or innocence.

Now, it is unclear what the “acts” are, as the order never mentions them;

Why should it? The acts are those alleged by the prosecution.

it is also unclear what the “inflammatory speeches” are, as the order does not mention them either.

Again, this is just nitpicking.

The lynchpin of the order, therefore, is a prima facie finding of a “conspiracy”, in specific terms, to “block a road.” This conspiracy rose to an “unprecedented level” – we are not told how.

Nor do we need to be told. We can see the thing for ourselves on You Tube.

But the fact that the accused is also – prima facie – one of the conspirators (regardless of specifics, because this remains a prima facie appraisal), meant that ipso facto the “acts and inflammatory speeches” (we are not told which) were attributable to her.

Yes. That is how the law on conspiracy works.

It should be immediately clear that such an approach casts the net of criminality so wide, that just about anyone can be brought within its ambit.

Nonsense! Bhatia himself can't be brought within its ambit because he wasn't there and, in any case, nobody was listening to him.

At the threshold level, it dispenses with the gravity requirement needed to trigger the Unlawful Activities (Prevention) Act, by failing conspicuously to specify how “blocking a road” reaches that threshold;

 The moment there was loss of life during the Delhi riots, the gravity requirement was met. The connection between Shaheen Bagh and those riots is obvious and was delineated by the prosecution.

at the more substantive level, upon a prima facie finding of a “conspiracy”, it dispenses with the need to show any causal connection between the accused and the events in question.

No. This order simply has to show some basic 'application of mind'. It meets that requirement because the prosecution showed 'reasonable grounds' for a prima facie case to be entertained. This may not be enough for the trial court. But a bail hearing is not a trial.

This would be problematic for acts (which the accused didn’t commit) as well, but when it comes to “inflammatory speeches” (which the accused didn’t give), it becomes even more problematic.

Repeatedly using the word problematic does not make a thing problematic.

This is because, recognising the problematic character of laws such as the Unlawful Activities (Prevention) Act which make the grant of bail effectively impossible, both the Supreme Court (in Arup Bhuyan, while examining the similarly-worded Terrorism and Disruptive Activities [Prevention] Act) and the Bombay High Court (in the Kabir Kala Manch cases) have narrowly interpreted the substantive offence, limiting it to cases involving the incitement of violence.

But there was violence- a lot of it- during the riots. There seems to be a prima facie case of a well-planned conspiracy such that violence broke out at exactly the same time as the American president's visit to India.

This is, indeed, nothing new: going back to the field of metaphors, as the Supreme Court held in S. Rangarajan, the proximity between speech and consequence needs to be like that of a “spark in a powder keg” for criminality to be imposed.

How is the S.Rangarajan case relevant? A Tamil film is one thing. A jihadi conspiracy is something completely different.  It is precisely because the contention is that money was paid to choreograph mob violence for a political, anti-national, end, that Zargar and others are accused of conspiracy. But a trial court may find them innocent.

Now, the image of a “spark in a powder keg” suggests a relationship of immediacy and inevitability. The metaphor chosen by the Sessions Court on the other hand – that of playing with “embers” that the wind then “carries” is the exact opposite of a “spark in a powder keg”.

No. Both may occur accidentally or by design. If the thing was accidental then the charge of conspiracy is defeated though some other penalty may be applicable.

The wind can carry embers as far, and in any direction, that the state or the judge might please; what this effectively does is do away with any causal requirement between speech-act and consequence.

This is not the case. Bhatia has chosen to believe, for no good reason, that 'obiter dicta' to the effect 'you may be innocent but you played with fire and so must cool your heels in jail till your trial', was in fact the ratio decidendi.  This is not true. The Sessions Court was denying bail in accordance with the Law because it thought a prima facie case against the accused had been made. It wasn't saying she was guilty. It wasn't pre-judging the issue.

Such a doctrine, therefore, buries the fundamental right to free speech: if there is no need for a causal requirement between speech-act and consequence, anything can be criminalised, taking us directly into the territory of thought-crimes.

This is sheer nonsense. Either Zargar was part of a conspiracy or she wasn't. That is a matter of fact. It has nothing to do with free speech or thought-crimes.

A reading of the order, therefore, makes it clear that insofar as both the law and the facts stood in favour of bail,

No. The draconian nature of the Law, itself a reflection of the grave danger posed to the country by terrorist conspiracies, meant that either the case against Zargar should have been thrown out as prima facie absurd or else bail had to be denied.

the court got around the first barrier by replacing legal doctrine with a metaphor of its own invention,

Quite false. If the Sessions Court 'replaced legal doctrine' in the manner suggested, then Zargar's lawyers would have appealed it as not sound in law.

and vaulted the second barrier by replacing an accounting of the facts with a set of adjectives (“unprecedented scale” and “inflammatory speeches”) that spared it the necessity of an explanation.

The explanation was 'we believe there is a prima facie case. That is why it wasn't thrown out immediately.'

In this way, the law was stretched from one side, and the facts from the other, and they met in the middle to make out a prima facie UAPA case.

This is utterly mad. Does Bhatia expect us to believe that the Sessions Court concocted the whole thing? Did they bribe the police and the prosecutors to bring this case? No. Either Zargar is guilty of conspiracy or she has been framed. But it isn't the Sessions Court which either uncovered that conspiracy or framed her for it.

This prima facie case was then used to justify keeping a pregnant woman in an overcrowded prison in the middle of a nationwide pandemic.

Bhatia may not want pregnant women to be kept in prison. He may think that such places ought not to be overcrowded. He may deplore the COVID virus. But that is not germane to the argument he is seeking to make which is that a particular Court has refused bail in a particular case contrary to the law.

What that says about the state of the justice system is best left to the readers’ judgment.

What this article says about Bhatia's legal nous is best left to the readers' judgment. There is a lot of Sound and Fury here but no 'application of mind'.