ON April 10, 2020, 27-year-old Safoora Zargar was arrested by Delhi Police. A research scholar at Jamia Millia Islamia, Zargar was accused of having a role in the Delhi riots conspiracy case. Zargar, who is pregnant, has been in judicial custody since then. Zargar’s lawyers have argued that she should be released on bail on a humanitarian basis because her pregnancy, along with health complications and the prevalence of Covid-19 in Indian prisons, created a situation where she would be at significant risk.

That, at least, was the hope when a hearing on Zargar’s case was held late last week. Judge Dharmendra Rana did not see things the same way. Unwilling to consider the particular situation Zargar confronts, he refused to evaluate her actions on an individual basis, instead focusing on the extent of the widespread riots. In a tersely worded order, he stated: “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. The acts and inflammatory speeches of the co-conspirators are admissible [under] the Indian Evidence even against the applicant/accused.”

This meant that it was not just the statements that Zargar made in public assemblies that were considered in adjudicating on her bail application, but also the statements of any of the many activists and students that were allegedly involved in the Delhi riots.

Safoora Zargar chose to speak out against the injustices of the Modi administration, and for that she’s in prison.

Pakistanis, particularly Pakistani feminists, need to pay attention to the Safoora Zargar case. Young, female and Muslim, Zargar chose to exercise her democratic rights and speak out against the injustice and statist violence of the new citizenship laws introduced by the Modi administration.

Instead of following traditional models of sitting at home and letting male colleagues protest, she chose to add her voice so that other young students, Muslim and otherwise, would be inspired to do the same. Like the many black and brown people protesting in the world at the moment, she refused to be intimidated by the brutal tactics of the Indian state, which, having abandoned the democratic values that were such a part of its system of governance, is only interested in silencing and intimidation.

The refusal to consider Zargar’s advancing pregnancy in her appeal for bail is just one more iteration of the hate-mongering tactics of the Modi administration. The judge’s statements, inflected as they are with a cruel relish for the defendant’s situation, reeked of wanting to make a statement regarding Muslim womanhood and the state’s control over it. In an India so filled with hatred that all Muslim women’s reproductive capacities are interpreted as some sort of an impending threat to the Hindu nationalist state that the Modi administration wants to build, the refusal of bail reflected an intention to deliberately threaten her pregnancy.

Like all the particular cruelties of the subcontinent’s particular post-colonial present, this control over women’s reproductive abilities dates back from the colonial era. During that time, British administrators, who believed that all Indian women had ‘loose morals’, made statements just like those made by Judge Rana presiding over Zargar’s case. Any means to show that the government could have power and control over the most intimate details of women’s lives was welcome and publicised. Its import, as in the case now with Safoora Zargar, would be to deter all and every Indian Muslim woman from ever challenging the draconian laws imposed by the Modi administration.

Then there is the issue of ‘special circumstances’. Woman-hating and minority-baiting judges like Dharmendra Rana love to suggest that women’s equality automatically means that they should be saddled not just with social prejudice that they already face but also be denied the ‘privileges’ that are not available to men (such as release during pregnancy). Indian (and Pakistani) men need to understand that this is a flawed and self-serving (and somewhat stupid) idea of what gender equality means. The word ‘equal’, after all, is not the same as the word ‘identical’. Equality means that the particular circumstances and realities of each gender should be the basis on which they are meted out punishment, held responsible, etc.

In this case, a woman exercised her right to make political statements critical of the current Modi government while she was in the very early months of her pregnancy. Since then, the advancing pregnancy, along with a burgeoning and unrelenting global pandemic, mean that continuing to imprison Zargar imposed hardships and dangers far greater than would be faced by a man in her situation. There is nothing in any interpretation of gender equality that says that women must suffer more than men in trying to do the same thing.

The Modi administration has spent the past several years of their successive terms padding the judiciary with judges who do their bidding. It appears that the judge hearing Zargar’s case is one of these men, uninterested in the principles of fairness and freedom of political expression, and wanting only to kowtow to their dear leader. If these were his priorities, then, indeed, he has done a tremendous job in showing how the persecution of Indian Muslims is not simply something carried out by Hindu nationalist mobs but also by the judiciary, the very arm that was once dedicated to disseminating justice.

Pakistani feminists need to add their voices to the international outcry against the Zargar case. Pakistani government officials should record their concern and consternation at the judge’s decision with the representative of the Indian government. Pakistanis committed to religious and political freedom should create petitions and social media campaigns in Safoora Zargar’s name. They may not be able to improve her current situation (of being held hostage by the Indian judiciary) but they can make sure that she knows that she is a heroine not just in India but also in Pakistan and all over the world.

The writer is an attorney teaching constitutional law and political philosophy.

rafia.zakaria@gmail.com

Published in Dawn, June 10th, 2020