It is perhaps not a great look for a democracy, if a constitutional court has to iterate (and reiterate) that a criticism of the government is not a terrorist act. But in the case of Kashmiri journalist Fahad Shah, Jammu and Kashmir High Court seems to have had little choice.
In an order granting bail to Shah, the court rejected the state’s submission that such criticism equalled destruction of property as defined in India’s anti-terror law (Unlawful Activities Prevention Act or UAPA), and noted that “such a proposition would collide head long with the fundamental right to freedom of speech and expression enshrined in Article 19 of the Constitution.”
But this order came over 600 days after Shah’s saga of arrests began. The journalist, who was first arrested under a different pretext and then slapped with a slew of FIRs and a preventive detention order (under J&K Public Safety Act/PSA) has been behind bars since 4 February 2022.
A Journalist in Jail, A Charge Not Made Out
During the course of these 21 months, Fahad Shah appeared to have been rendered a 'jail-trotter' — passed around many different jails like parcel. This is because just as he would arrive at the brink of relief in one case, he would be arrested in another. And then right before this latest UAPA arrest, came the mighty PSA. But ripping into the PSA order against him, the Jammu and Kashmir High Court had noted in April 2023 that “the case at hand is a clear example of non-application of mind to material circumstances…”
This UAPA case — the last apparent bar in Shah’s fortified cell of incarceration — pertains to an article edited by Shah in 2011. Analysing the police complaint, which was filed in April 2023, Senior Advocate Rebecca John had noted that Shah had been booked under Sections 13 (punishment for unlawful activity) and 18 of the UAPA (along with other IPC and FCRA sections). This, she said was a “legal mismatch.”
“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.”Senior Advocate Rebecca John
Speaking to The Quint, at the same time, Human Rights lawyer Mihir Desai had said that the inclusion of Section 18 without the corresponding Section 15 reference indicates it was included just so that strict bail conditions under the UAPA could be invoked against Shah and Aala Fazili (the author of the article from 2011).
But how?
Simply, Section 43D(5) of the UAPA prevents grant of bail merely if — based on the material provided by the police — there are reasonable grounds to believe that the case against the accused is prima facie true.
It becomes applicable as soon as a terror-related offence (technically: an offence punishable under Chapters IV and VI of the UAPA) is invoked. Section 18 is a terror-related offence, while Section 13 (falling under Chapter III) is not.
However, in March 2023, a special judge in Jammu confirmed these charges against Shah, including Section 18.
Now the Jammu and Kashmir High Court has finally observed that “prima facie, offence u/s. 18 of the UAPA is not made out as the act of the Appellant does not come within the definition of a terrorist act." It has also quashed charges which were filed under Section 121 (waging or attempting or abetting the waging of war against the government) and 153B (Imputations, assertions prejudicial to national integration) of the IPC. Thus, the scribe will only stand trial for 13 UAPA and 35 and 39 of the FCRA.
But when Fahad Shah finally gets out of jail (and until he does, it is an if), he will find his world a changed place — Kashmirwala, a news portal that he once ran with a small team was blocked on government orders earlier this year. The team members were also served an eviction notice by the landlord of their office in Srinagar.
And Fazili, the author of that contentious piece from 2011, who was also booked under Sections 13 and 18 of the UAPA, is yet to even be allowed this slight sliver of relief. He is still behind bars.
Although, there may be relief for him in sight, his case for bail made stronger by this judgment.
"In light of the findings arrived in paragraphs 33 & 34 of the judgment in Fahad Shah's case, in my opinion the author of the article too deserves to be enlarged on bail," former Allahabad High Court Chief Justice Govind Mathur told The Quint. These paragraphs pertain to Section 18, and the court's finding that no evidence presented actually shows that the article had provoked people to take up militancy.
Thus, Fazili should be sent home on the same grounds as Fahad, and Section 18 for him similarly set aside.
But Shah and Fazili are not the only two ‘critics’ who have had to suffer the state's wrath in connection with their work. As per the Rights and Risks Analysis Group (RRAG), 103 journalists were "targeted by State actors" in 2022, in India.
'An Abuse of Preventive Law'
Quashing a PSA detention order against Kashmiri journalist Sajad Gul, the J&K High Court noted that “such a tendency on the part of the detaining authority to detain the critics of the policies or commissions/omission of the government machinery…is an abuse of the preventive law.”
According to Senior Advocate Sanjay Hegde, “preventive detention such as under the PSA is unheard of in most countries." It should ideally be done away with, he told The Quint.
“The safeguard that such detention has to be approved by judicial oversight, is not something that has actually worked. Very rarely has a preventive detention board set aside such detentions. And by the time the procedure has gone through in a court of law, the period of detention has nearly expired.”Senior Advocate Sanjay Hegde
Meanwhile, Justice Mathur added that the review committees in preventive detention cases are headed by people acquainted by law, “but these committees appear to be completing mere formalities.”
“When the legislature has prescribed that a High Court judge has to head the committee, he has to apply his mind like a High Court judge would in a court of law,” Justice Mathur said.
But if preventive detention cannot be done away with, can it at least be watered down to prevent such prolonged and baseless deprivation of liberty?
As per Senior Advocate Hegde:
“To make preventive detention laws more human, any executive authority who signs the detention should be made liable if it is found by the court that those laws were incorrectly applied. But for this, the legislature will have to step in.”
Meanwhile, Justice Mathur said:
“Whenever such detention or arrest is held to be completely invalid, and it is found that the material is not adequate for the detention/arrest, some penal action should be taken against the authority who has supplied the material to the government and the officer who has authorised the detention/arrest.”
Justice Mathur also emphasised that in all detention matters, all courts must hear the petitions in a lightning-fast manner.
"A court cannot afford to keep all these matters pending for a long time."
Detention under the PSA can be for a maximum of two years. When the order was pronounced in Sajad Gul’s case (9 November), he had already spent 662 days in detention.
Far too Many Days, No Liberty in Sight
Extended deprivation of liberty can also, however, be a consequence of other factors. Especially in the case of stringent legislations such as the UAPA and the PSA.
Recounting his personal experiences as a criminal-defence lawyer, Advocate Ahmad Ibrahim told The Quint that lower courts might display hesitance, owing to a general feeling that the power to grant bail on the ground of infringement of liberty (Article 21) vests singularly with the constitutional courts.
In State vs Jamshed Zahoor Paul, an Additional Sessions court in Delhi had said:
“Evidently, Hon’ble Apex Court has merely observed that despite the statutory restrictions u/s 43D(5) of UAPA (those pertaining to terror-related offences), the Constitutional Courts may grant bail on violation of Part III (which pertains to Fundamental Rights such as liberty, equality, etc) of the Constitution.”
Thus, the court declared itself ineligible to prioritise fundamental rights over statutory restrictions in the UAPA bail plea, saying that the power for that only rests with the Supreme Court and the High Courts.
However, according to Advocate Ibrahim, that should not be the case. "There is no bar, no provision and no judgment which says that lower courts have no power to grant bail on such grounds."
It is also true that the apex court has repeatedly urged all courts to grant liberty its due import.
In 2020, Justice DY Chandrachud (present chief justice of India) had said in his order granting bail to Television personality Arnab Goswami that “our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens."
Advocate Ibrahim added that sometimes a special NIA court may also be hesitant in UAPA cases as it might feel it has displayed its opinion at the stage of framing of charges. "So unless the charge is challenged before the High Court, they might not reconsider."
And to make everything harder still, an apex court judgment from 2019, National Investigation Agency vs Zahoor Ahmad Shah Watali, says that while adjudicating UAPA bail pleas the courts should not go into the details and the admissibility of the evidence. They should, instead, look at the "totality of the material" produced by the investigating agency.
What this, coupled with the existing restrictions, means is that a court (in case of a terror-related charge) has to satisfy itself that the case against the accused is prima facie not true, while also steering clear of the details and admissibility of evidence provided by the prosecution.
But by granting bail to UAPA accused Vernon Gonsalves and Arun Ferreira in August this year, the apex court applied a fresh and long-awaited perspective. It said:
"What this ratio (of the Watali judgment) contemplates is that on the face of it, the accusation against the accused ought to prevail. In our opinion...it would not satisfy the prima facie “test” unless there is at least surface-analysis of the probative value of the evidence..."
And so, the court carried out its analysis and concluded that there was no credible evidence of the accused committing a terror act or entering into a terror-related conspiracy. The duo was thereby allowed to return home.
But relief for Gonsalves and Ferreira came after five years in custody. One of their co-accused Father Stan Swamy, 84 years old, afflicted by Parkinson’s disease, died awaiting bail. Many of their co-accused still languish in incarceration. As do other UAPA accused in other cases – JNU student Sharjeel Imam recently completed 1300 days in jail. Maybe, one day a constitutional court will find that all of them were not terrorists. Maybe the court will decide they were mere critics. Maybe it will let them out. Or maybe it won't.
But in CJI Chandrachud's words: "Deprivation of liberty even for a single day is one day too many."
Imagine multiplying that with 600 days, 700 days, five years, and counting...
(Mekhala Saran is studying Global Media and Digital Communications at SOAS, University of London. She was formerly The Quint's Principal Correspondent - Legal. Find her on X @mekhala_saran. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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