The Jammu and Kashmir High Court has made a significant ruling in the case of Fahad Shah, the founding editor of the former news portal ‘The Kashmir Walla’, granting him bail in a case under the Unlawful Activities (Prevention) Act (UAPA). This decision marks a crucial interpretation of the law, particularly concerning the arrest and bail of individuals under the UAPA.
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Justices Atul Sreedharan and Mohan Lal, presiding over the case, emphasized the importance of justifying an arrest under the UAPA on the grounds of ‘clear and present danger’ to society. The Court stated,
“When the law laid down in Joginder Kumar and KA Najeeb are seen together, then 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, it would be violative of Article 21 of the constitution as well. With two fundamental rights of the accused under Part III of the Constitution being violated, the bar of the proviso to Section 43D (5) of the UAPA would be of no consequence in the light of the judgement of the Supreme Court in KA Najeeb’s case and the accused would be entitled to bail.”
The case against Shah stemmed from an article titled ‘The shackles of slavery will break’, published in his magazine in 2011. The prosecution accused him of creating a narrative to incite the youth of Jammu and Kashmir to adopt violent means for secession. However, the High Court found that the charge of conspiring or preparing to commit a terrorist act under Section 18 of the UAPA was not sustainable. The Court observed,
“Prima facie there is no material to suggest that the article hosted by him has any content that provokes people to take to arms and resort to violence. The act was allegedly done eleven years back. 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.”
While the criminal proceedings under Section 18 of the UAPA were quashed, Shah will still stand trial under Section 13 of the UAPA and Sections 35 and 39 of the Foreign Contribution (Regulation) Act (FCRA). The Court’s decision to grant bail was based on the principle that the legislative intent behind Section 43D (5) of the UAPA was not to incarcerate individuals who do not pose a clear and present danger to society. The Court clarified,
“However, it was not to keep incarcerated the unwary transgressor who found himself at the wrong place at the wrong time.”
This ruling by the Jammu and Kashmir High Court is a significant development in the interpretation of the UAPA, particularly in terms of the rights of the accused and the conditions under which bail can be granted. It underscores the necessity for the investigating agency to justify arrests under the UAPA on the doctrine of ‘clear and present danger’ to society, thereby protecting the fundamental rights of individuals.
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