A welcome judgement

The Jammu & Kashmir High Court has underlined the importance of the right to life and liberty and free speech and defined the scope and limits of application of the Unlawful Activities (Prevention) Act in granting bail to journalist Fahad Shah and quashing charges framed against him under the law.

Shah was held under provisions of the UAPA in April 2022, 11 years after publication of an article titled “The shackles of slavery will break” on his portal in 2011, which was considered by the administration as seditious and promoting militancy and terrorism.

The court said that an investigative agency must justify the arrest of an accused person under the UAPA only on the anvil of “clear and present danger of the accused to the society at large, if enlarged on bail”. The court said that there was no incitement to violence of any kind, much less acts of terrorism or of undermining the authority of the State with acts of violence in Shah’s article and so there was no case for arrest and prosecution under the UAPA. 

The court rejected the police claim that the publication of the article was a “terrorist attack” on India. It also rejected the argument that any act affecting India's “honour, dignity and fair name” is a “terrorist act.” The police had claimed that the “honour of India” is its “incorporeal property.” But the court said if this argument was accepted it would turn criminal law on its head and that any criticism of the central government could be described as terrorism. This is again an assertion by the judiciary of the need to respect citizens’ freedom of expression, which should not be suppressed in the name of the interests of the State, often interpreted as the interests of the government. 

According to the charge sheet, the article was 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.” But it was noted that none of the 44 witnesses or documents presented in the court suggested that the article had influenced people to take up arms or resort to violence.

The court pointed out the absurdity of the argument by saying that instances of stone-pelting in 2022 could not be on account of a 2011 article.

The significance of the judgement is that it has again questioned the basis of many cases against critics and dissenters under draconian laws such as UAPA and PMLA.

The judgement makes it clear that all that the government deems unlawful is not unlawful and all that it dubs as terror is not terror, and that the citizen’s fundamental rights are paramount.