UAPA Arrest Without Legal Justification Violates Articles 14 & 21, Accused Entitled To Bail In Such Cases Despite S.43D(5) : J&K&L High Court

In a significant development, the Jammu and Kashmir and Ladakh High Court, while granting bail to journalist Fahad Shah, observed that an arrest under the Unlawful Activities (Prevention) Act, 1967 without ‘legal justification’ would violate equality and liberty rights under the Constitution. The court also underscored that even though the investigating agency possesses discretionary powers in making arrests under the anti-terror law, a compelling rationale must be provided after the arrests, rooted in the concept of a ‘clear and present danger’ posed by the accused to society, especially if released on bail. A bench of Justices Atul Sreedharan and Mohan Lal held – “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.” Shah, the founding editor of former news portal ‘The Kashmir Walla’, has been in custody for almost two years following accusations of terrorism related to the publication of an article titled ‘The shackles of slavery will break’ published in his magazine in 2011. The author of the piece, Aala Fazili, a scholar from the University of Kashmir, was also arrested in connection with the case. In the wake of these allegations, the news outlet’s website has been blocked in the country, at the request of the central government. Its social media accounts, including its pages on ‘X’ (formerly, Twitter) and Facebook have also been taken down. For his role in the alleged creation of a narrative to incite the youth of Jammu and Kashmir to “adopt violent means to protest for their demand to secede from India and accede to Pakistan”, the embattled journalist was slapped with charges under Sections 13 (punishment for unlawful activities) and 18 (punishment for conspiracy) of the UAPA, as well as under various sections of the Indian Penal Code, 1860 and the Foreign Contribution (Regulation) Act, 2010. He was arrested in May last year. Two months later, in July, a special judge declined Shah's request to be released on bail, but he challenged this order in the Jammu and Kashmir High Court. Before the high court, the prosecution accused him of committing a ‘terrorist act’ within the meaning of Section 15(1)(a)(ii) of the UAPA, arguing that ‘property’ defined under Section 2(h) of the act included ‘incorporeal’ property such as India’s international reputation, which allegedly suffered a blow owing to the offending article. However, this argument did not find favour with the bench which refused to term the hosting of the controversial article on the news outlet a ‘terrorist act’. As such, Shah was exonerated of the charge of conspiring or preparing to commit and terrorist act under Section 18. Turning next to Section 13 of the UAPA, the court held that there was sufficient material to prima facie support the charge levelled against Shah of committing unlawful activities and he would have to face a trial to prove his innocence. It also directed his release on bail on producing a ₹50,000 bail bond and one surety of the like amount. Although the court offered mixed relief to the incarcerated journalist, it made important observations about the legal principles surrounding the grant of bail under India’s anti-terror law. The prosecution’s argument against his release was mainly predicated on the restriction on the court’s bail-granting power under the proviso to Sub-section (5) of Section 43D. The State drew support from the Supreme Court’s ruling in Zahoor Ahmed Shah Watali, which not only restricted the ambit of examination of a court at a pre-trial stage to the prosecution’s version of events – unchallenged in cross-examination, but also placed a bar on a detailed analysis of the prosecution’s case itself. In other words, while disposing of a bail plea under the UAPA, a court ought to only examine the broad probabilities of the case, and not enter into a ‘roving inquiry’ of the evidence. At the conclusion of this exercise, if the court arrives at a preliminary conclusion that an offence under Chapters IV or VI of the act is made out, then the bar of the proviso to section 43D (5) would apply and bail cannot be granted to the accused.Lowering India's Reputation Not 'Terrorist Act'; Holding So Would Mean Any Criticism Of Centre Will Be UAPA Offence : J&K&L High Court Relying on the Supreme Court’s judgments in Joginder...

UAPA Arrest Without Legal Justification Violates Articles 14 & 21, Accused Entitled To Bail In Such Cases Despite S.43D(5) : J&K&L High Court

Awstika Das

The High Court held that arrest under UAPA must be justified on the anvil of "clear and present danger".

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