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'Would Literally Turn Criminal Law on its Head': What J&K HC Said While Granting Fahad Shah Bail

'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.'
Fahad Shah. Photo: Twitter/@pzfahad

Punching holes in the police chargesheet, the Jammu and Kashmir high court has struck down the terror funding charge against Kashmiri journalist Fahad Shah while linking the ‘seditious’ article in his media outlet to the fundamental right to freedom of speech.

The court granted bail to Shah on November 17, nearly two years after he was first arrested by J&K Police on terrorism charges.

Hearing his bail application, a division bench of the high court observed that invoking charges of terrorism against Shah for an 11-year-old article “collide(s) head long with the fundamental right to freedom of speech and expression enshrined in Article 19 of the Constitution.”

‘The shackles of slavery will break’, the controversial article authored by Aala Fazili, a University of Kashmir scholar, appeared in The Kashmir Walla outlet, which was founded by Shah, in 2011.

Both Aala and Shah were arrested last year in the anti-terror case which was filed in Jammu CIJ police station by J&K Police’s State Investigation Agency (SIA). Shah’s bail application was earlier rejected by a lower court.

The SIA has accused the two of glorifying terrorism, terror conspiracy and waging war against the country besides a slew of other charges under the Unlawful Activities (Prevention) Act, 1967 (UAPA) and Foreign Contributions Regulation Act (FCRA).

The prosecution had invoked Section 43-D (5) of the UAPA to oppose Shah’s bail application. Under this section, a court cannot grant bail to a UAPA suspect without hearing the prosecution.

Opposing the bail application, the prosecution pleaded that the controversial article in The Kashmir Walla was a ‘terrorist attack’ defined in section 15 (1) (a) (ii) of the UAPA. The prosecution claimed that the article had attacked the “honour, dignity and fair name” of India which was her “incorporeal” property under section 2 (h) of the UAPA.

Argument ‘would literally turn criminal law on its head’

Rejecting the prosecution’s argument that the anti-terror case was beyond the high court’s purview at this stage as charges have been framed by the trial court, the HC bench of Justice Mohan Lal and Justice Atul Sreedharan observed that a “superficial analysis of … evidence was necessary” to decide Shah’s bail application “more so in a case where the bar of section 43-D (5) is raised.”

Dismissing the prosecution’s argument that the publication of the article was a terrorist attack on India, the division bench observed:

“If this argument 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.”

The bench continued:

“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.”

Delving into the definition of terrorism and terrorist activities under the UAPA, the court pointed out that the prosecution has not provided any evidence of violence or attack on security forces due to the publication of the controversial article.

‘Prima facie at fault for his mental state’

Referring to a news report in The Kashmir Walla which had mentioned the last phone conversation of a militant before his killing in Shopian district on April 11, 2021 and which, the prosecution alleged, glorified violence, the court held that the report is based on facts which “neither endorses the sentiments of the militant and neither (sic) does it glorify the militant.”

During the arguments, the prosecution also told the court that some unpublished poems recovered during searches at Shah’s home and office showed his “separatist mentality” but the court observed that these “reflect his fondness for the valley and freedom, as also his pain and anguish at the turmoil” in J&K.

“The prosecution wants the court to hold the appellant prima facie at fault for his mental state,” the court pointed out dryly.

In its chargesheet filed last year, the SIA, J&K’s elite counterterrorism agency which was formed in the aftermath of the reading down of Article 370, had also sought to link the recent protests and militancy-related incidents in Kashmir to the article which, the agency said, also led to the radicalisation of Kashmiri youngsters.

The court had framed charges against Shah in March this year.

According to the charge sheet, the article was allegedly part of a “secessionist-cum terrorist campaign” to incite the youth of Jammu and Kashmir into adopting “violent means of protest to secede from India and accede to Pakistan.”

Earlier, senior advocate and Shah’s counsel, P.N. Raina, informed the bench that none of the 44 witnesses listed in the charge sheet or documents collected as evidence during the course of investigation by the SIA suggest that the article had influenced people to take up arms or resort to violence.

‘Stretching causation to absurd limits’

The court ruled that there was no reference to the accession of J&K with Pakistan in the article nor any call to arms, “There is no incitement to violence of any kind much less acts of terrorism or of undermining the authority of the State with acts of violence,” the bench pointed out.

It added: “It cannot be presumed reasonably that the instances of stone pelting that may have taken place in 2022 were on account of the instigation of the offending article that was uploaded in the year 2011.”

Invoking the Latin maxim ‘causa proxima non remota jura spectatoror’, the court observed that the “proximate cause” of the article was important to fix liability. “Affixing liability for the offences between 2020 to 2022 based on the article written and published in 2011 would be stretching causation to absurd limits,” the bench noted.

According to the SIA chargesheet, Shah has received funding of Rs 95 lakh for ‘The Kashmir Walla’ since its inception which, the agency said, could have been allegedly used for terror activities. However, the HC observed that the trial court has framed charges of FCRA violation against Shah and not section 17 of the UAPA which deals with punishment for terror funding.

“The apprehension sounded by the State that the funds received by the Appellant which includes overseas remittances could have been used for terror funding is summarily rejected,” the bench ruled.

Two questions

At the outset of the bail order, the division bench pointed out that it was mulling over two questions; one, whether section 43-D (5) of the UAP Act where, despite the existence of a prima facie case, the absence of a ‘Need to Arrest’ would violate the right to life under Article 21 of the Constitution” and, the court continued, “if it does, whether the Court can still grant bail on account of the violation of Article 21?”

The court added on the second question: “And whether, the concept of ‘Clear and Present Danger’ ought to be taken into account by the Courts while deciding a bail application where the bar under section 43-D (5) is applicable?” In this instance, the court ruled that the prosecution has not been able to prove the charge of ‘clear and present danger’ against Shah while granting him bail.

The court has quashed the charges under Sections 18 (terror conspiracy) and 121 (waging war against the country) of the UAP Act and 153-B (imputations, assertions prejudicial to national-integration) of the Indian Penal Code against Shah, setting the stage for his release from jail where he has been held for nearly two years.

“He (Shah) will face trial under Section 13 (abetting unlawful activities) of the UAPA and Sections 35 (receiving foreign funds illegally) and 39 (offences by companies) under the Foreign Contribution (Regulation) Act, 2010,” Raina, his counsel, told The Wire.

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