New Delhi: The United Nations Working Group on Arbitrary Detention (UNWGAD) has termed the arrest and custody of Jamia Millia Islamia student Safoora Zargar a violation of the Universal declaration of human rights and International Covenant on Civil and Political Rights, to which India is a party.

Zargar was first arrested by the Special Cell on April 10, in connection with FIR 48/2020 filed in the Jaffarabad road-block case. She was granted bail in the case on April 13 but on the same day, her name was added to FIR 59/2020 issued on February 24, and she was arrested again.

The Delhi Police claimed that she was “allegedly one of the main conspirators and main instigators in the riots” that swept through north-east Delhi last year in February. She finally got bail on June 2020 from the Delhi high court on humanitarian grounds. She was 23 weeks pregnant at that time.

The UNWGAD, which has a mandate from the UN Human Rights Council, comprises a panel of experts from Australia, Latvia, South Korea, Zambia and Ecuador.

The Working Group claimed that the allegations regarding Safoora Zargar’s detention to the Indian government on July 22 and requested for response by September 21, 2020. “The Working Group regrets that it did not receive a response from the Government, and neither did the Government request an extension of the time limit for its reply, as is provided for in the Working Group’s methods of work”.

In an opinion adopted at its 89th session last November but publicly released on Thursday, the Working Group stated:

“The deprivation of liberty of Safoora Zargar, being in contravention of articles 2, 3, 7, 8, 9, 10, 11, 19, 20 and 21 (1) of the Universal Declaration of Human Rights and articles 2 (1) and (3), 9, 14, 19, 25 (a) and 26 of the Covenant, was arbitrary and fell within categories I, II and V.” 

This is the second opinion related to India adopted at the 89th session. The UN body had also criticised India for the arrest and detention of British businessman and AgustaWestland scam accused Christian Michel. India had rejected the opinion claiming that it was based on “limited information” and “biased allegations”.

The three categories are classifications drawn up by UNWGAD of arbitrary deprivation of liberty.Under Category I, Working Group finds it “clearly impossible to invoke any legal basis justifying the deprivation of liberty”. It observed Zargar’s arrest had been irregular and she was detained “for an alleged offence for which she is not named, and the complainant in that case is the police”. Further, the UN body noted that the basis of information on which the police filed the FIR is “mentioned as being secret informers”.

“She was later arrested under another First Investigation Report lodged at a different police station, which allegedly demonstrates misuse of the law by the police to target her,” it stated.Further, the Working Group observed that given her medical condition, there “was no necessity for an urgent arrest of the student activist, however serious the charges”.

The Working Group opined that Zargar’s detention also fell under Category II, as her arrest was due to her expressed opinions and right to peaceful assembly as mentioned under international treaties.

“The current deprivation of liberty of Ms. Zargar results from the exercise of universally recognized human rights, in particular the right to freedoms of opinion, expression and peaceful assembly. Given the fact that Ms. Zargar was critical of the passing of the Citizenship (Amendment) Act, as a woman human rights defender engaged in public protests against the Citizenship (Amendment) Act, and a media liaison officer for the Jamia Coordination Committee, her current detention can clearly be interpreted as another move to curb her dissent by intimidating her and others associated with the Jamia Coordination Committee,” said the UNWGAD.

The Indian government was urged to “respect, protect and fulfil the right to hold and express opinions, including those that are not in accordance with its official policy, and to think and manifest personal convictions at odds with its official ideology, under the peremptory jus cogens norms of customary international law”.

Jus Cogens, which means “compelling law” in Latin, are rules in international law that are peremptory or authoritative and from which states cannot deviate.

The Working group also commented that Zargar’s political views were behind her treatment by Indian authorities. “In particular, Ms. Zargar is being discriminated against on the basis of her status as a human rights defender and in violation of her right to equality before the law and  equal protection of the law under article 26 of the Covenant. Ms. Zargar’s political views and convictions regarding the Government’s policies and actions are at the centre of the present Case,” it said.

The UN body request that the Indian government should take “steps necessary” to “remedy” the situation for Zargar “without delay and bring it into conformity with the relevant international norms”.It suggested that the “appropriate remedy” would be to provide Zargar with “an enforceable right to compensation and other reparations, in accordance with international law”. 

India was also asked to ensure a “full and independent investigation” into the circumstances surrounding the detention of Zargar and to “take appropriate measures against those responsible for the violation of her rights”.

The case file was also passed to the UN human right body’s the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Special Rapporteur on the situation of human rights defenders and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, for appropriate action.

The Working Group also asked for follow-up information from the two stakeholders – the Indian government and the ‘source’ that submitted Zargar’s case – to inform them whether the research scholar had been unconditionally released, compensated, ordered a full investigation and whether any legislative amendments had been made to harmonize the laws and practices with international obligations.

While asking for this information within six months from the date of transmission of the opinion, the Working Group also “take its own action in follow-up to the opinion if new concerns in relation to the case are brought to its attention”.