Supreme Court Affirms Bail Granted To Kashmir Journalist Fahad Shah, But Holds HC Judgment On UAPA Wrong

The Supreme Court on Tuesday (October 15) declared as bad in law the judgment of the Jammu and Kashmir and Ladakh High Court which held that an accused can be granted bail under the Unlawful Activities (Prevention) Act 1967 if he does not present any "clear and present danger" to the society.

The High Court judgment, which granted bail to Kashmir-based news journalist Peerzada Shah Fahad, also held that lowering of India's global reputation cannot be held to be a terrorist act within the meaning of Section 15 of the UAPA.

While declaring the High Court judgment to be per incuriam and directing that it should not be cited as a precedent, the bench comprising Justices Bela Trivedi and Satish Chandra Sharma however did not interfere with the bail granted to Fahad Shah.

The HC had relied on the 1919 US Supreme Court judgment in Schenck v. United States and underscored that an arrest under the UAPA must be justified on the grounds of the accused creating a “clear and present danger” to society.

The US Supreme Court while addressing the limits of freedom of speech recognized that while the prohibition against abridging free speech is significant, it is not absolute and may be subject to circumstances. The Court stated that for a speech to not be protected, the central issue is whether the words create a “clear and present danger” of causing substantive evils that Congress has the authority to prevent.

Supreme Court's view

The bench based its decision on previous Supreme Court decisions in Babulal Parate v. State of Maharashtra, State of Madras v. VG Row, and Arup Bhuyan v. State of Assam, which have rejected the applicability of the doctrine in India.

In the case of Babulal Parate v. State of Maharashtra, the Indian Supreme Court referenced the Schenck case but was against importing the American doctrine into Indian law. It had cited State of Madras v. VG Row and noted that the fundamental rights under Article 19(1) of the Constitution are not absolute but subject to restrictions outlined in clauses (2) to (6) of Article 19.

“Suffice it to say that having regard to the aforestated judgments of the Constitution Benches, it is directed that the impugned judgment and order being per incuriam shall not be cited as a precedent in any other case”, the Court observed.

The Court said this while dismissing two SLPs filed by the Union Territory of Jammu & Kashmir challenging the judgment granting bail to journalist Peerzada Shah Fahad in a UAPA case.

The petitions arose from a common order of the High Court on November 17, 2023, in which Fahad, the editor of 'The Kashmir Walla,' was granted bail and certain charges under the Unlawful Activities (Prevention) Act (UAPA) and the IPC were quashed.

The HC had granted bail to Fahad and quashed the charges framed under Section 18 of the UAPA, (conspiracy to commit a terrorist act), and Sections 121 and 153B of the IPC. The HC had confirmed the charge under Section 13 of the UAPA (punishment for unlawful activities) and Sections 35 and 39 of the Foreign Contribution Regulation Act (FCRA). This order was challenged before the Supreme Court.

Solicitor General Tushar Mehta contended that the HC's reliance on the 1919 US Supreme Court judgment in Schenck v. United States was misplaced. He argued that the judgments by two Constitution Benches of the Supreme Court of India in Babulal Parate v. State of Maharashtra (1961) and State of Madras v. VG Row (1952), three judge decision in Arup Bhuyan v. State of Assam (2023), had rejected the “clear and present danger” doctrine established in Schenck. He also argued that there was sufficient evidence against Fahad to uphold the charge under Section 18 of the UAPA.

The Supreme Court, while acknowledging some merit in Mehta's submissions, decided not to interfere with the HC's order. The Court noted that Fahad had been on bail for about a year and that the trial had already commenced. However, it held that the HC's judgment, being per incuriam, should not be used as a precedent in other cases. The Court also warned that any violation of bail conditions by Fahad or non-cooperation in the trial would result in the cancellation of his bail.

The Court emphasized that while Fahad had been discharged from certain charges, the Trial Court retained the authority to alter charges based on the evidence under Section 216 of the CrPC. The Supreme Court also clarified that the observations made by the HC should not impede the ongoing trial in any way.

The case revolves around Fahad's arrest and prosecution under the UAPA and the IPC for allegedly publishing articles that the prosecution claimed incited violence and promoted a separatist ideology. Fahad had been in custody since May 2022, and got bail from the HC in November 2023.

Case no. – Special Leave Petition (Criminal) Diary Nos. 26689 and 26690 of 2024

Case Title – Union Territory of Jammu and Kashmir v. Peerzada Shah Fahad

Citation : 2024 LiveLaw (SC) 802