Srinagar: A court in Jammu has granted bail to a Kashmiri scholar nearly three years after he was arrested by J&K Police for allegedly writing a ‘seditious’ article in a Srinagar-based digital news outlet in 2011.
The court of additional sessions judge in Jammu on February 8 ordered the release of Aala Fazili, a postdoctoral scholar at the University of Kashmir, who was arrested by J&K Police’s State Investigation Agency (SIA) on April 17, 2022 for the article titled “The Shackles of Slavery will Break”.
“There is very weak evidence which connects the applicant with the authorship of the article and if the applicant due to weak evidence is acquitted at the end of the trial, his period of incarceration would not be compensable by any means,” the court said.
Following the court order, Fazili was released from Kot Bhalwal jail in Jammu and reached home on Tuesday evening, his brother Sami Fazili, told The Wire.
Fahad Shah
Fazili’s release comes more than 15 months after Fahad Shah, the editor of The Kashmir Walla, the Srinagar-based digital magazine which published the controversial article, was set free on bail by J&K high court after being arrested by the SIA in the case.
In its chargesheet, the SIA had alleged that the “highly provocative and seditious” write-up was “intended to create unrest” and push “gullible youth to take path of violence and create communal unrest” by “brazenly glorifying terrorism and intended to abet the commission of unlawful activities across Jammu and Kashmir”.
The prosecution had invoked Section 43-D (5) of the UAPA to oppose Fazili’s bail application. Under this section, a court cannot grant bail to a UAPA suspect without hearing the prosecution.
However, citing three Supreme Court judgements, the court ruled that denying bail to Fazili, who was pursuing a PhD in pharmaceutical science at the time of his arrest, will be a “violation of the rights guaranteed under Article 21 of our constitution”.
The court observed that out of 44 witnesses in the case, 10 have been examined so far and none of them have testified that the article was authored by Fazili. The court said that the government “neither took notice nor any action” when the article appeared in The Kashmir Walla on November 6, 2011 till April 4, 2022, when the SIA filed the case.
Referring to a judgement of J&K high court which had granted bail to The Kashmir Walla editor Fahad Shah in the case dubbed as ‘narrative terrorism’ by J&K police, the court observed that the controversial article has “neither affected the law and order nor aggravated the militancy related incidents” in Jammu and Kashmir.
“There was no call to arms or incitement to an armed insurrection against the state in the controversial article. There is no incitement to violence of any kind much less the acts of terrorism or of undermining the authority of the state with the acts of violence,” the court said, referring to the high court judgement.
The court added: “His co-accused (Fahad Shah) has already been admitted to bail who has allegedly published the said article and his role is not less than the role of the applicant because had the article not been published it was of no effect if it remained in the diary of the applicant,” the court ruled.
The case was filed at JIC/NIA police station at Jammu by the SIA under Section 13 (advocating, abetting, advising or inciting unlawful activity) and Section 18 (sets out the quantum of punishment for involvement in such activity) of Unlawful Activities (Prevention) Act.
The agency has also invoked Section 121 (waging war against the Government of India), Section 124 (spreading disaffection against the government), Section 153-B (imputations, assertions prejudicial to national integration) and Section 120-B (criminal conspiracy) in the FIR, in which Fahad has been named as an accused.
However, the high court has quashed charges under Sections 18 of UAPA and Sections 121 and 153-B of the IPC against Shah, observing that there was “no call to arms by the author (and) .. no incitement to an armed insurrection against the State.”
“There is no evidence on record. The entire charge sheet (filed by the SIA in the case) is silent with respect to this fact that somebody has chosen the path of violence, merely because the ‘Article’ was provocative in nature. The charges levelled …. are based on assumptions (and) without any legal foundation,” the high court had observed.
