Lowering India's Reputation Not 'Terrorist Act'; Holding So Would Mean Any Criticism Of Centre Will Be UAPA Offence : J&K&L High Court

While granting bail to Kashmir-based news journalist Peerzada Shah Fahad, the High Court of Jammu and Kashmir and Ladakh rejected an argument raised by the National Investigation Agency (NIA) that any act affecting India's dignity and lowering the country's global image will be a 'terrorist act' as defined under the Unlawful Activities Prevention Act.

The case against Peerzada Shah Fahad(who writes under the name Fahad Shah), the Editor of online portal 'The Kashmir Walla', was primarily based on an article “The shackles of slavery will break”, authored by another person, which was published in Shah's portal in 2011. The prosecution alleged that the article was offensive and maligned the global reputation of the country, which amounts to a terrorist act. It was further alleged that Shah entertained a 'separatist' mentality and had published several articles inciting the local people.

The most serious offence charged against Shah was Section 18 of the UAPA, which relates to conspiracy to commit terrorist act. To justify the invocation of Section 18, the prosecution argued that the publication of the article amounted to a 'terrorist act' as defined under Section 15 of the UAPA.

In this regard, the High Court noted that the Additional Advocate General of the Union Territory of J&K came up with a "novel argument"- that the act of the accused would fall within Section 15(1)(a)(ii) as the said clause makes an act resulting in the loss, damage or destruction of property, a terrorist act. He took the argument further by referring to Section 2(h) of the UAPA where “property” is defined inter alia as corporeal or incorporeal in nature.  The AAG developed the proposition by arguing that the honour, dignity and fair name of India was its “incorporeal” property and besmirching the country's reputation will amount to destruction of property, which is a terrorist act as per Section 15(1)(a)(ii). It was alleged that the accused, with his baseless allegations against the Government of India of indulging in genocide, committing rape of the women of Kashmir by its forces and other outrageous conducts, lowered the image of India in the eyes of the world.

The division bench comprising Justice Atul Sreedharan and Justice Mohan Lal refused to accept this argument. If this argument is accepted, it would mean that any criticism of the Central Government will be a 'terrorist act'.

"With the greatest deference to the learning and experience of the Ld. Sr. AAG, if this argument is accepted, it would literally turn criminal law on its head. It would mean that any criticism of the central government can be described as a terrorist act because the honour of India is its incorporeal property. Such a proposition would collide head long with the fundamental right to freedom of speech and expression enshrined in Article 19 of the Constitution," the bench observed.

The judgment authored by Justice Sreedharan explained that the basic precept of criminal law and criminal statutes is that it must be "unambiguous, unequivocal, and clear as day when it makes an act an offence."

The argument of the AAG cannot be accepted when the legislature has not specifically made the act of expressing a disparaging thought of India an offence.

"The average Indian in the street who must suffer the consequences must be made well aware beforehand that his negative opinion of India, expressed in words or in writing or any other form giving permanence, could visit him with severe sanction."

Even otherwise, the Court added,  the property referred to in 15(1)(a)(ii) must be such that it is susceptible to destruction or loss using such means (explosives, firearms etc.,) as in s. 15(1)(a). "Property that can suffer damage, loss or destruction can only be a material or corporeal property. An incorporeal property would be impervious to damage and destruction by the use of means mentioned in s. 15(1)(a). Therefore, the argument put forth by the Ld. Sr. AAG is rejected."

The Court noted that the article, though called for secession of J&K, did not incite any violence. The Court also observed that the prosecution has not shown how the article, which was published a decade ago, has caused any breach of law and order in the present day.

"Prima facie there is no material to suggest that the article hosted by the Appellant has any content that provokes people to take to arms and resort to violence,” the Court observed.

If an arrest under the UAPA cannot be justified on the anvil of "clear and present danger", then it will be an arbitrary arrest violating the fundamental rights under Article 14 and 21 of the Constitution.

The Court quashed the charges under Section 18 of the UAPA against the accused. At the same time, the Court held that there was sufficient material to prima facie hold that the petitioner can be tried for the offence of unlawful activities under Section 13. Also, the charges under the Foreign Contribution Regulation Act were also sustained by the Court.

The division bench was considering an appeals filed by Shah against the trial court rejecting his bail application and a petition filed by him under Section 482 CrPC challenging the charges framed against him. He was arrested on May 20, 2022 and has been under custody since then.

Senior Advocate PN Raina and Advocate JA Hamal represented the petitioner

Senior Additional Advocates General Monika Kohli and Mohsin Qadri represented the State

Case Title: Peerzada Shah Fahad v. Union Territory of Jammu and Kashmir & Anr.

Citation: 2023 LiveLaw (JKL) 292

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