India Jammu & Kashmir 
Granting bail to journalist Fahad Shah, J&K HC rules that UAPA arrest must be justified on

ISHFAQ TANTRY/An Awaaz South Asia Exclusive | 21/11/2023

Courtesy: Facebook/ Fahad Shah

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In an important ruling with potentially far reaching implications for the prosecution of cases under the dreaded Unlawful Activities (Prevention) Act, the Jammu&Kashmir High Court has held that the investigating agency must justify the arrests under this law on the basis of “clear and present danger”.


The Court further held that the existence of prima facie evidence against the accused is irrelevant  if investigators cannot establish how the accused poses a “clear and present danger” to society.


The J&K HIgh Court's ruling was made on a bail application by jailed Kashmiri journalist Fahad Shahd along with another  petition by him to quash the cases against him. The court granted him bail on November 17.


Shah, the founding editor of Kashmir Walla, has been in jail since February 4, 2022, arrested and rearrested in four cases, without being able to leave jail even though he had already got bail in three of these cases. He has yet to be released after his latest bail.


Shah has spent 21 months in jail under the draconian Public Safety Act (PSA) and Unlawful Activities (Prevention) Act (UAPA). The High Court has quashed several charges framed against the journalist, including the main charge that he published an article on his web portal with the aim of instigating its readers to become terrorists.


However, he will stand trial for offences under sections of the Foreign Currency Regulation Act, the court said in its order made available on November 20.


“...[An] arrest under the provisions of the UAPA without any legal justification would be an arbitrary exercise of executive discretion and the same would be violative of Article 14 of the Constitution as the arrest was without legal justification, that would be violative of Article 21 of the constitution as well”, a division bench of Justice Atul Sreedharan and Justice Mohan Lal observed in its judgement while deciding both the bail application and quashment petition of  the incarcerated journalist together.


Stating that the investigating agency  has  unbridled authority under UAPA, the High Court held: “However, upon arrest, the investigating agency would have to justify the arrest on the anvil of “clear and present danger” of the accused to the society at large, if enlarged on bail.”


“The existence of prima facie evidence against the accused is to no avail if there is no justification for the arrest based on the doctrine of clear and present danger to the society. If the investigating agency does not satisfy this Court and is unable to justify the arrest... the same would result in the violation of the rights of the accused under part III of the Constitution ...and the accused may be enlarged on bail. In order to assess whether the accused is a clear and present danger, there can be no rule of thumb and it must be seen in the backdrop of the specific facts and circumstances of each case”, the bench held.


Key points 


The charge against Shah in the case, in which he had not been granted bail, was that he had published “incorrect reporting”, and that he had uploaded “anti-national” content on social media allegedly “glorifying” terrorist activities and “causing a dent to the image of law enforcing agencies besides causing ill-will and disaffection against the country”.


Striking down these charges, the court said no offence was made out under the definition of a terrorist act in UAPA "as prima facie there is no material to suggest that the article hosted by the [Shah] has any content that provokes people to take to arms and resort to violence".


Quashing the charge of "waging war against the Government of India", the High Court said the findings of the investigation do not support this charge. The High court also noted in its order that the charge that Shah was creating "disaffection" on the basis of caste or religion was baseless.

.“Any criticism of Central Government cannot be described as a terrorist act”


Discounting the “novel argument” put forward by the prosecution that the acts of journalist Fahad Shah constitute an “act of terrorism”, the Court observed that if this argument by the Senior Additional Advocate General representing the Government of India is accepted , “it would literally turn criminal law on its head.”


“It would mean that any criticism of the central government can be described as a terrorist act because the honour of India is its incorporeal property. Such a proposition would collide headlong with the fundamental right to freedom of speech and expression enshrined in Article 19 of the Constitution”, it observed. The prosecution's argument was that the "honour,dignity and fair name of India was its 'incorporeal' property, and that this had been besmirched by Shah.


The court also said that if it indeed was the government's property, the people of the country must be forewarned.


“Before the concept put forth by the Ld. Sr. AAG can be accepted, the legislature would have to make the act of expressing, in any manner whatsoever,  a disparaging thought of India, a specific offence. The average Indian in the street who must suffer the consequences must be made well aware beforehand that his negative opinion of India, expressed in words or in writing or any other form giving permanence, could visit him with severe sanction,” the bench said in its verdict.

"Separatist mentality" not evidence
While granting Shah bail, the High court also noted that the article under question was published eleven years ago, in 2011.


“From then till date, no evidence has been brought on record that the offending article was responsible for provoking persons to take to militancy. Not a single witness says this. The other cases in which the Appellant was arrested, he has been enlarged on bail in all of them.”


The prosecution had also placed before the Court a compilation of unpublished poems allegedly written by Shah.


“They (poems) reflect his fondness for the valley and freedom, as also his pain and anguish at the turmoil in the State. These poems have been placed before the Court only to show the mental bearing of the Appellant as someone who is of a separatist mentality. In other words, the prosecution wants the Court to hold the Appellant prima facie at fault for his mental state”, the court observed.


The High Court also mentions an opposite finding in the  interrogation report of the jailed journalist which is also  part of the chargesheet.


“Under the sub-head “Views regards Kashmir problem/General view”, the police has recorded that the Appellant is a person with a moderate and liberal mindset and has always written about Kashmir policies and local political parties and was of the opinion that Kashmir needs to be developed rather than becoming a free state”, the court noted.


Foreign Currency charge

 As regards the offence under section 35 and 39 of the Foreign Contribution Regulation Act (FCRA), the High Court in it judgement noted that there is “sufficient material to take the prima facie view that the Appellant had received remittances from overseas without intimating the authorities about it and therefore, there is sufficient evidence for the Appellant to stand trial for the same.”

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