New Delhi: While granting bail to journalist Peerzada Shah Fahad alias Fahad Shah, the Jammu and Kashmir High Court asserted that an arrest under the Unlawful Activities (Prevention) Act (UAPA), 1967, without “legal justification” would violate equality and liberty rights under the Constitution.
The order, which was passed on 17 November, by a bench comprising Justices Atul Sreedharan and Mohan Lal observed that the investigating agency probing a case under the UAPA has the unbridled authority to arrest or not 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 court added.
It asserted that the existence of prima facie evidence against the accused would not help the agency if there was no justification for the arrest based on the doctrine of “clear and present danger” to the society.
The court unequivocally said that, if the investigating agency does not satisfy the court and is unable to justify the arrest, it would result in the violation of the fundamental rights of the accused under the Constitution.
While it acknowledged that there is no rule of thumb to assess whether the accused is a clear and present danger, it would have to be assessed in the backdrop of the specific facts and circumstances of each case.
The court was hearing an appeal filed by Shah in a case involving publication of an article in his now defunct digital magazine, The Kashmir Walla. The court granted him bail subject to him furnishing a personal bond and a surety of Rs 50,000 each.
Shah was held in this case in May last year, following the registration of a case in Jammu on 4 April, 2022 — nearly 11 years after the publication of an article titled ‘The shackles of slavery will break’ in his magazine in 2011.
The article was written by a Kashmir University scholar, Abdul Aala Fazili, who, too, has been arrested.
Charges were framed against Shah in March this year.
The high court, however, felt that prima facie, no offence under Section 18 (conspiracy to commit a terrorist act) of the UAPA was made out against him, as his act does not come within the definition of a terrorist act under Section 15 of the Act.
“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, quashing the charges framed against him under Section 18 of UAPA.
It also quashed the charges under Sections 121 (waging war against the government) and 153B (imputations, assertions prejudicial to national-integration) of the Indian Penal Code (IPC).
Shah would now have to face trial only for offences under Section 13 (unlawful activities) of the UAPA and provisions of the Foreign Contribution (Regulation) Act (FCRA) 2010.
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‘Honour, dignity and fair name of India’
During the hearing, the state government had asserted that Shah’s act would fall within the definition of a terrorist act under UAPA, because this provision makes an act resulting in the loss, damage or destruction of property, a terrorist act.
The state government asserted that “property” under UAPA can be corporeal or incorporeal in nature, and includes the “honour, dignity and fair name of India”.
It then asserted that the article on Shah’s website levelled baseless allegations against the Indian government, and had the propensity of lowering the image of India in the eyes of the world.
However, the court rejected this argument asserting that if it 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 headlong with the fundamental right to freedom of speech and expression enshrined in Article 19 of the Constitution.”
The definition of a ‘terrorist act’ has been contentious, and was even read down by the Delhi High Court in its order granting bail to Pinjra Tod activists Devangana Kalita and Natasha Narwal, and Jamia Millia Islamia student Asif Iqbal Tanha in June 2021.
However, the Delhi Police was quick to challenge this order in the Supreme Court, especially taking objection to the HC’s observations on the Section 15 of the Act.
Within three days, on 18 June 2021, the top court put the HC order on hold to the extent that the latter’s opinion on UAPA was made inoperative.
However, in May this year, the apex court dismissed the Delhi Police’s petition, while observing that the high court’s interpretations cannot be utilised by any other court.
Arrest without legal justification
In regular criminal cases, bail is supposed to be the norm and pre-trial jail an exception.
However, Section 43D(5) of the UAPA says that a person accused of an offence under Chapters IV and VI of the UAPA (terrorism and belonging to a terrorist organisation) shall not be released on bail if the court, after perusing the case diary and police report, “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”
However, in 2021, the Supreme Court ruled that UAPA does not stop constitutional courts from granting bail on the grounds of violation of fundamental rights under the Constitution.
Relying on this judgment, among others, the J&K HC now ruled that “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, that would be violative of Article 21 of the Constitution as well.”
The high court said that, since the power to arrest is a discretionary one vested with the police, its arbitrary use can violate Article 14 of the Constitution.
“With two fundamental rights of the accused (Shah) under part III of the Constitution being violated, the bar of the proviso to s. 43D(5) of the UAPA would be of no consequence in the light of the judgment of the Supreme Court in K.A Najeeb’s case and the accused would be entitled to bail,” the high court added.
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Intent behind 43D(5) of UAPA
The court felt that the legislative intent behind Section 43D(5) “was to ensure that those who were a ‘clear and present danger’ to the society, whose relationship with the offence is proximate and direct, do not get bail during the pendency of the trial lest they take to their nefarious ways again, once released.”
It said that the provision was not to keep in jail “the unwary transgressor who found himself at the wrong place at the wrong time.”
It further explained, “Hypothetically, the proviso to 43D (5) was to ensure that a terrorist captured after a fire fight with the security forces and charged u/s. 16 of the UAPA, remains incarcerated as an under trial during the pendency of the trial as his release on bail would pose a clear and present danger to the society at large.”
The court also highlighted a second instance where a shepherd in a remote village is compelled to give refuge to insurgents at gunpoint.
The shepherd “who, for the sake of his family which includes the womenfolk, makes peace with his circumstances out of sheer helplessness and is charged for an offence u/s. 19 of the UAPA, is certainly not a clear and present danger to the society and was someone who ought not to have been arrested in the first place if the police had exercised its discretion properly,” it added.
The court then asserted that the bar under Section 43D(5) would apply in both cases, but while the arrest was justifiable in the first case, it would be arbitrary in the second one and would violate Articles 14 and 21 of the Constitution.
(Edited by Richa Mishra)