Legal Experts Question New UAPA FIR Against Kashmiri Journalist Fahad Shah
The latest FIR does not expressly name Shah, but mentions the “editor of monthly digital magazine The Kashmir Wala”.
On an evening of early February, while the winter still hugged the valley like a blanket, 37-year-old Aqib Shah had just returned to their home in Soura, Srinagar from his work as a contractor and builder, when his mother received a phone call.
It was his younger brother Kashmiri journalist Fahad Shah (34), calling from Pulwama police station, where he had been summoned earlier in the day.
“Fahad just told my parents — do not worry about anything, it might happen that I might have to spend a night here at the police station,” Aqib Shah told The Quint.
Later, however, the news broke that Fahad Shah had been arrested. It has been 79 days since he has been languishing behind bars.
Arrested first on 4 February, Shah, an independent journalist, recipient of the 25th Human Rights Press Award and the editor of The Kashmir Walla, has four ongoing cases against him, three of which are under the draconian Unlawful Activities (Prevention) Act (UAPA).
On 14 March, Shah, who had received bail in two of the (then) three cases against him — the arrests for which had been consecutive — and was awaiting his bail hearing in the third case, was slapped with the Public Security Act (a preventive detention law which allows the authorities to detain a person without conviction for up to two years).
Most recently, on 5 April, Shah was booked under the UAPA for the third time, in the latest of the four cases against him. The new FIR relates to an article by PhD scholar Aala Fazili which was published in The Kashmir Walla back in 2011.
While the FIR does not expressly name Shah, it mentions the “editor of monthly digital magazine The Kashmir Walla”, which Shah’s lawyer Umair Ronga has confirmed to The Quint is in reference to him.
What Does the New FIR Say?
The FIR has been filed at CID CI (counter intelligence) Jammu, against Fazili and Shah as well as “other associates of the monthly digital magazine” in connection with an article titled ‘The Shackles of Slavery Will Break.’
The FIR, citing a "discreetly obtained input", said: “A sinister development is underway as regards media in Kashmir is concerned.”
It alleges that “Aala Fazili's write up is highly provocative, seditious and intended to create unrest in Jammu and Kashmir to abet the gullible youth to take the path of violence and create communal unrest”,
The CID CI go on to argue that the article:
“has brazenly glorified terrorism and intended to abet the commission of unlawful and terrorist activities. The input further stated that consequence of publication of this article has led to increase in terrorism and unlawful activities across Jammu and Kashmir.“
With regard to Fahad Shah, the FIR said:
“The editor of monthly digital magazine "The Kashmir Wala" has intentionally conspired with the author and published it in the monthly digital magazine thus endorsing the contents of the article.”
Shah's brother Aqib, meanwhile, in conversation with The Quint, pointed out that “the article had a disclaimer that the views expressed were the author’s own.”
A 'Legal Mismatch'?
While Fazili has been booked under Section 13 and 18 of the UAPA, as well as several sections of the Indian Penal Code (IPC); Shah has been booked under the same sections of the UAPA, along with Section 120B of the IPC, ie criminal conspiracy.
Section 13 of the UAPA deals with the punishment for 'unlawful activities'. This is a specific offence in the UAPA separate from the terror offences which are also punished in the draconian law.
The definition of 'unlawful activity' in the UAPA covers any action taken by such individual or association which
supports or is intended to support any claims about secession of a part of India
disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India;
causes or is intended to cause disaffection against India.
However, Section 18 of the UAPA deals with punishment for conspiracy to commit a terrorist act. Thus, dubbing the invocation of sections 13 and 18 a “legal mismatch” in this case, senior advocate Rebecca John told The Quint:
“Section 18 is punishment for conspiracy for a terrorist act , but it has to be read with Section 15 (terrorist act), so there is actually a legal mismatch when you invoke Sections 13 with 18.”
This inclusion of Section 18 without the corresponding Section 15 reference indicates it was included just so that the strict bail conditions under the UAPA could be invoked against Shah and Fazili, senior advocate and reputed human rights law expert Mihir Desai told The Quint.
“One needs to be conscious of the fact that the harsh bail conditions under UAPA only apply to terrorist related crimes," Desai explained, "and not to what are classified as unlawful activities which include propagation of cessation, etc.”
Thus, Desai said: “In this case, Section 18 seems to be added only to ensure that Aala Fazili and Fahad Shah are not let out on bail.”
“There are no instances cited of any terrorist related activities in the FIR nor any acts of terrorism incited or conspired by them have been listed. If terror related crime is removed (which ought to be) then, Fazili and Shah will have to be granted bail sooner rather than later.”Mihir Desai
When an Offence Can Be Taken Care of by Ordinary Law...
“Essentially, my limited legal comment is this: UAPA is a draconian law but even so, it was never intended to punish free speech,” John on her part told The Quint.
Commentators on UAPA, as noted by John, have often questioned Section 13, because there is a huge overlap between this section and other similar sections of the IPC.
“If there is an overlap, ordinary law must apply and not the special statute,” she said.
“Ordinarily, the mere publication of an article, however offensive, should not result in the invocation of the UAPA and it is about time that courts come down heavily on this. You can’t make UAPA commonplace. Even assuming that an offence has been committed, that offence can be taken care of by the ordinary law.”Rebecca John
The recently created J&K State Investigation Agency (SIA), in a statement, according to The Indian Express, had dubbed Fazili's article “seditious” and claimed:
“(the article) on the one hand is highly provocative, seditious and intended to create unrest in Jammu and Kashmir, written with the purpose of abetting the youth to take the path of violence by glorifying terrorism, and on the other, the write-up prompted and propagated the false narrative, which is essential to sustain secessionist cum terrorist campaign aimed at breaking the territorial integrity of India."
John, however, pointed out that in India, as far back as in the 1960s (Kedarnath Singh vs State of Bihar), when the constitutional validity of sedition was challenged, the apex court had said that the test was whether any violence had accrued.
“Whether your spoken or written words had propensity to violence, or whether they actually caused violence, and if that had happened, only then Section 124A (sedition) was to be invoked,” she explained further.
"When even for the ordinary law, the threshold is very high, for an extraordinary statute, it must be much higher,“ Rebecca John added. "You cannot criminalise peoples thoughts, people’s minds."
'Will You Book Everyone Who Protests, Questions & Critique?'
At this point it may be pertinent to remember that the history of Kashmir has been dotted with protests, and that these protests are often a frequent occurrence in the valley.
But not every person who takes to the streets to exercise their right to protest, or who writes or publishes scathing articles critical of the local or national government (past or present) actually aids, abets or participates in any kind of violent campaign.
“Since the first time this article was published (seemingly in 2011), I don’t know how many hundreds or thousands of Kashmiri youth may have participated in sloganeering on the streets. Is government of India now saying that each one of them, who has sloganeered, is going to be booked?" advocate Tanveer Ahmed Mir asked.
"If you are not booking five hundred–thousand people for sedition (or UAPA), how are you booking Shah?” he added.
“This (the case against Fahad Shah) is basically a manifestation of an absolute police state, to threaten people and to stop them from disseminating information."Advocate Tanveer Ahmed Mir
According to Desai, as well, “what has happened to Fazili and Shah is, of course, only an instance of what is happening across the country to dissenters of this regime, and of course Muslims.”
“We are rapidly becoming a democracy only in name and the constitutional values are being daily destroyed. Fazili and Shah are but one instance of this."
Even from the perspective of the state, there are risks to slapping UAPA charges, especially terror charges which are meant to be for the most serious case, in cases where they don't fit.
Granting bail to UAPA accused Asif Iqbal Tanha in a Delhi Riots case, the Delhi High Court had, in June 2021, made this point, saying:
“Foisting extremely grave and serious penal provisions engrafted in sections 15, 17 and 18 UAPA frivolously upon people, would undermine the intent and purpose of the Parliament in enacting a law that is meant to address threats to the very existence of our Nation. Wanton use of serious penal provisions would only trivialise them.”
'How Could We Have Expected This?' Fahad Shah's Brother Asks
Meanwhile, Fahad Shah is presently incarcerated in Kupwara jail. Since his first arrest on 4 February, his brother Aqib has only met him a handful of times. The last time they met was on 22 April, but the meeting was hardly intimate, as the two brothers sat across a glass pane communicating through a phone-line.
On being asked how Fahad Shah is doing, his brother told The Quint:
“With the month of Ramzan presently underway, Fahad tells me he spends most of his time fasting and immersed in prayers.”
As the reporter’s conversation with the brother traversed some distance and details, he also, however, shared:
“But jail is jail. And you are cut off from everybody you love, and you can imagine the impact of it on his mental state. He is worried about us, his family, back at home.”
Shah’s father is a retired Jammu and Kashmir Police officer and his mother was formerly a teacher. On being asked how they are doing, Aqib said:
“Our parents are really upset from the beginning, but when the PSA was slapped on him it got really bad. The PSA was a harsh one for me and my family.”
According to a statement on The Kashmir Walla’s website, on 17 April, SIA sleuths along with Kashmir police teams, jointly raided their office, as well as Shah’s residence where his family still lives.
Commenting on all the disconcerting developments that have unfolded in their lives since February this year, Aqib Shah said: “Each and every charge against him are related to the work he has done as part of his profession, and to his magazine."
“We were never ever expecting this to happen. Fahad was not expecting this to happen. Fahad was just doing his work as a journalist and we know that there is press freedom in the country. How could we have expected it?Aqib Shah
But the family is hopeful because, Aqib tells The Quint, “we know Fahad has not done anything bad.”
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