The Week That Safoora Zargar Made Bail, Gulfisha Fatima's Petition For Freedom Was Dismissed

NEW DELHI — The Delhi High Court on Monday rejected the Habeas Corpus petition of Gulfisha Fatima, a 28-year-old MBA graduate, who the Delhi Police arrested on 9 April in connection with communal riots that claimed 52 lives in the national capital in February. 

Fatima has been incarcerated for as long as Safoor Zargar, the 27-year-old sociology student, who, after three failed attempts, was granted bail on humanitarian grounds by the Delhi High Court on Tuesday.

Both women, along with 12 others arrested in FIR 59/2020, have been booked under at least 20 sections of the Indian Penal Code, including for murder and sedition, two sections of the Arms Act, and four sections of the Unlawful Activities Prevention Act (UAPA), India’s draconian anti-terror law.

Both women had opposed the Modi government’s Citizenship Amendment Act (CAA) in the weeks and months leading up to the riots. And they were both arrested amidst a nationwide lockdown to stem the transmission of the deadly coronavirus.

Zargar, who is five months pregnant, sought bail for the fourth time in Delhi High Court on 18 June, and Judge Rajiv Shakdher on Tuesday granted it to her on “humanitarian grounds” — not the merits of the case. 

Fatima was arrested on 9 April, one day before Zargar, in the same FIR — FIR 48/2020. She too was subsequently arrested in FIR 59 that invoked the UAPA on 19 April. 

On 12 May, Fatima was granted bail by a district court judge under FIR 48, but she remained incarcerated in Tihar Jail in FIR 59.

Aqil Hussain, Fatima’s brother, filed a Habeas Corpus petition in the Delhi High Court on  15 May, challenging her custody as illegal.

On why a Habeas Corpus petition instead of applying for bail in FIR 59, Fatima’s lawyer Mehmood Pracha said, “Our reasoned strategy was that she is in illegal custody and she has to be released.”

A two-judge bench of Justice Vipin Sanghi and Justice Rajnish Bhatnagar on Monday rejected the petition as “meritless.”

“Red Herring”

Defense lawyer Pracha argued that since UAPA was invoked in FIR 59, matters of bail and judicial remand could only be heard by a special court set up under the National Investigation Agency (NIA) Act. 

Pracha argued that Additional Sessions Judge Dharmender Rana, who on 28 May had extended Fatima’s judicial custody to 25 June, did not have the jurisdiction to do so. 

Appearing for the Delhi Police, Solicitor General Tushar Mehta said the law does not say that all UAPA cases need to be heard by NIA designated courts, and the need only arises “if and only if” the case is entrusted by the central government to the NIA. 

Agreeing with the prosecution, Justice Sanghi in the judgment said that Pracha’s argument was “completely misplaced.” 

“Reliance placed by Mr. Pracha on the NIA Act is completely misleading and is a red herring,” he wrote.

On Tuesday, Pracha told HuffPost India that he now intended to move the Habeas Corpus petition in the Supreme Court. 

Who represents the Delhi Police?

Even before the arguments in the writ petition, there was a dispute over who represents the Delhi Police, which reports to the Union Ministry of Home Affairs, presently run by the Bharatiya Janata Party (BJP) and Home Minister Amit Shah. 

Rahul Mehra, standing counsel for the Delhi government, said that it had to be the Delhi government, presently run by the Aam Aadmi Party. The BJP-run central government sent Solicitor General Tushar Mehta, Additional Solicitor General Maninder Acharya and Aman Lekhi, Standing Counsel Amit Mahajan and Advocate Rajat Nair. 

In 2018, in the wake of a bitter power tussle between the Delhi Chief Minister Arvind Kejriwal and Lieutenant Governor Anil Baijal, the Supreme Court had ruled that the Delhi government has power in all matters except land, police and public order and the LG is bound by the aid and advice of the Delhi government’s Council of Ministers. 

The Delhi government says the LG can only appoint Special Public Prosecutors on the aid and advice of the Delhi government’s Council of Ministers.

The Delhi government and central government continue to be at loggerheads over who is representing the Delhi Police in Delhi Riots case.

Following Fatima’s case, both governments fought over the same issue in Zargar’s bail hearing as well.  

In Fatima’s case, the Delhi government relented, saying that the Delhi Police had sought its permission for the appointment of the central government lawyers to represent them and this was granted. 

As for the Modi government sending five lawyers for this one case, including the Solicitor General Tushar Mehta, defense lawyer Pracha said, “I haven’t seen the Government of India putting up so many senior lawyers in one case. Not even 2G, not even Rafaele.”