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

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 Kumar (1994) and KA Najeeb (2021), the high court clarified that the aforesaid proviso did not bar constitutional courts from granting bail when fundamental rights were violated. It also stressed that the legislative section behind Section 43D (5) was preventing the mid-trial release of those posing a ‘clear and present danger’ to society and whose relationship with the offence was proximate and direct. “However, it was not to keep incarcerated the unwary transgressor who found himself at the wrong place at the wrong time,” the high court cautioned.

Therefore, the bench held that an arrest made without a justifiable cause, in an arbitrary exercise of executive discretion against a person who does not pose a clear and present danger to society, would violate Articles 14 and 21 of the Constitution. Having fallen foul of KA Najeeb’s ratio, a constitutional court would then be entitled to grant an accused bail, notwithstanding the bar arising out of the proviso to Section 43D (5). Emphasising the ‘clear and present danger’ test, the court observed –

“The investigating agency, investigating a case under the UAPA, has the unbridled authority to arrest or not to arrest under the provisions of the UAPA. However, upon arrest, the investigating agency would have to justify the arrest on the anvil of ‘clear and present danger’ of the accused to the society at large, if enlarged on bail. The existence of prima facie evidence against the accused is to no avail if there is no justification for the arrest based on the doctrine of clear and present danger to society. If the investigating agency does not satisfy this court and is unable to justify the arrest (as warranted in Joginder Kumar) the same would result in the violation of the rights of the accused under Part III of the Constitution as adumbrated in KA Najeeb’s case, and the accused may be enlarged on bail. In order to assess whether the accused is a clear and present danger, there can be no rule of thumb and it must be seen in the backdrop of the specific facts and circumstances of each case.”

Applying these legal principles to the facts of the case, the court concluded that the charge under Section 18 of conspiring or preparing to commit a terrorist act was not sustainable –

“There is prima facie 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 against Shah under Section 18 of the Unlawful Activities (Prevention) Act have been quashed by the high court, he will still stand trial for not only Section 13 of the UAPA but also Sections 35 and 39 of the FCRA.

Case Details

Peerzada Shah Fahad v. Union Territory of Jammu and Kashmir & Anr. | CrlA(D) No. 42 of 2022 c/w CRM (M) No. 472 of 2023

Citation: 2023 LiveLaw (JKL) 292

Click here to read the judgment