Two journalists in Kashmir, arrested and jailed under terrorism charges in separate cases for nearly two years, got a long-awaited reprieve from the Jammu & Kashmir and Ladakh High Court over Friday and Saturday.

Fahad Shah, founding editor of The Kashmir Walla online portal, was granted bail on Friday, November 17, after 21 months in jail under the draconian Public Safety Act (PSA) and Unlawful Activities (Prevention) Act (UAPA).

The court has also quashed the detention of Kashmiri journalist Sajad Ahmad Dad -- better known as Sajad Gul -- who was detained by the J&K government under the Public Safety Act on January 14, 2022. He was first arrested on January 6, 2022.

In its order, which was made available on Saturday, the court described Gul's detention as an “abuse of the preventive law”, and ordered his immediate release.

The detailed bail order in Shah's case awaited.

Arrest, Bail, Repeat

The bail to Shah was granted by a two-judge bench but he has not yet been released. It is hoped that the journalist, one of the earliest in the country to strike out on his own with online journalism, and is currently lodged in Kot Bhalwal jail in Jammu, will be released after his bail order is received by the authorities.

He has been in jail since February 4, 2022, arrested and rearrested in four cases, without being able to leave jail even though he got bail in three cases.

On August 19, the Union Ministry of Electronics and Information Technology took down The Kashmir Walla website under controversial provisions of the Information and Technology Act, 2000.

Shah was first arrested on February 4, 2022 by the Pulwama district police, four days after the portal published a report of an encounter Pulwama in south Kashmir. The report also included an account of the family of a teenaged boy who was killed along with three alleged militants, questioning the police allegation that he was a “hybrid” militant.

The charge against Shah in that case 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”.

He was arrested under the UAPA, IPC section 124-A for sedition, and IPC section 505 for conducing to public mischief.

When an NIA court, which tries UAPA cases, gave him bail on February 26, Shah was not released, but transferred to the custody of the Shopian Police for a case going back to January 2021, in which the Army was the complainant. He was accused, in this case, of publishing “fake news” that the Army had forced a seminary to hold a Republic Day function.

When he was given bail on March 5, 2022 by the Shopian court, he was arrested for a third time, by the Srinagar police. This time, for a case filed against him in May 2020 for his coverage of an encounter in Srinagar, in which local residents were quoted alleging that security forces took away their valuables, a charge denied by the security forces.

He got bail in this case too, but during this time, Shah was slapped with the Public Safety Act and accused of being a threat to public order. His PSA “dossier”, which AwaazSouthAsia has seen, accused him of promoting separatism, “inciting violence”, and “providing logistical support for anti-national acitivities”.

In April this year, the High Court quashed the PSA charges against him, giving the J&K Administration a dressing down for “snatching” Shah's constitutional rights by levelling “vague” charges against him.

But instead of releasing him, this time J&K’s State Investigation Agency (SIA) arrested him in the case for which he has now been granted bail. This case, filed in April 2022 by the SIA in Jammu, pertains to an article alleged to have been published by Shah in Kashmir Walla eleven years earlier, in 2011.

Titled ‘The shackles of slavery will break’, it is alleged to have been written by Aala Fazili, a research scholar at the University of Kashmir, who is the first accused in the case and is also under arrest.

The chargesheet, seen by AwaazSouthAsia, is dated October 13, 2022.  It alleges that Fazli and Shah, “under a well-directed conspiracy and Pakistan's effort have resurrected a platform for reviving the narrative in support of terrorist and separatist ecosystem.”

It describes the two as “contaminated and compromised media persons,” who were “covertly and knowingly working to construct a false and distorted account of events in Kashmir in pursuit of the overall aim to ... persuade their audience…that nothing good can happen and should happen as long as Kashmir is part of India, that Indian State by default is brutal, anti-Kashmiri and anti-Muslim. That merger with Pakistan is not only desirable but feasible as well.”

It alleges that Fazili's write-up was “highly provocative, seditious and intended to create unrest in Jammu and Kashmir. It also alleged that the article had “led to increase in terrorism and unlawful activities across Jammu and Kashmir”. However, statistics cited in the chargesheet for the period during which the article was published show waning militancy until 2013, the numbers picking up only in 2014.

It alleges that Shah “intentionally conspired” with the author to have it published in Kashmir Walla.

The SIA investigation included in the chargesheet cites a Reporters Sans Frontieres (RSF) grant of Rs 10.59 lakhs in his bank account, describing RSF as an “entity” which “in reality...is involved in subverting the democratic freedoms all over the world”. RSF is an international organisation that monitors press freedom and helps journalists in places where they work in difficult conditions.

The SIA said there were two more bank accounts with “suspicious” deposits.

The investigation also alleges that Fazli was in touch with “two persons who joined terrorist ranks” and were subsequently killed in operations.

Sajad Gul's Case

Hailing from Shahgund village of Bandipora district in north Kashmir , Gul was booked under the Public Safety Act on January 14, 2022. He is currently lodged in Agra jail in UP.

At the time, he was already under arrest for over a week in three other cases. The PSA was slapped on him a day before he got bail in one of those three cases.

In its order quashing his detention under PSA, the court said there was no specific allegation against Gul to show how his activities could be attributed to be prejudicial to the security of the State.

“The detaining authority, itself, has admitted that the detenue, having done Masters in Journalism, was working as a Journalist (Media Reporter) and it was his professional/ occupational duty to report the happenings in his area, even including the operations of the security forces”, a division bench comprising Chief Justice J&K High Court Justice N. Kotiswar Singh and Justice M.A.Chowdhary said in its judgement.

“Such a tendency on the part of the detaining authority to detain the critics of the policies or commissions/ omissions of the Government machinery, as in the case of the present detenue --a professional media person, in our considered opinion is an abuse of the preventive law,” the bench held.

Gul in his petition before the High Court had contended that he has been arrested by the police authorities “without any justification and was illegally detained for several days” after he was falsely implicated in three cases filed in Hajin, in Bandipora.

“The grounds of detention nowhere suggest/ reveal that the detenue had, at any point of time, filed/ uploaded any false story/ reporting based not on true facts. It is nowhere stated as to how the detenue had disrupted the public order creating any alleged enmity, inasmuch as, there is no specific instance in any of the allegations levelled against him to show that he had been working against the national interests, so as to be prejudicial to the security of the State”, it held.

The court also observed it “cannot be said to be a ground to be relied upon that a true and factual media report can provoke people against the working of the Government, that too without any specific instance as to how his tweets had caused any problem, much less public order problem with the Government”, the Division Bench of the High Court held.

The court said the investigators had shown no “specific instance” of any of his articles creating acrimony against the government.

“The detention order based on such vague grounds is not sustainable...the detaining authority... has not applied its mind ... to order preventive detention of the detenu by curtailing his liberty which is a valuable and cherishable right guaranteed under Article 21 of the Constitution of India”, the High Court said while setting aside the orders of an earlier Bench, which had dismissed Gul's petition, and quashed the PSA detention order passed against him.

ENDS