New Delhi: The Supreme Court has said Monday that the judgement of the High Court of Jammu & Kashmir and Ladakh granting bail to Kashmiri journalist Peerzada Shah Fahad, holding that the investigating agency would have to justify his arrest based on the doctrine of “clear and present danger”, should not be treated as a precedent in any other case.
Fahad, founding editor of the erstwhile independent digital publication The Kashmir Walla, was granted bail by the HC on 17 November last year.
A Supreme Court bench of justices Bela Trivedi and Satish Chandra Sharma has now ruled: “Suffice it to say that having regard to the aforestated judgements of the Constitution benches, it is directed that the impugned judgement and order being per incuriam (passed without due consideration) shall not be cited as a precedent in any other case.”
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HC order & how it reached SC
In Union Territory of Jammu & Kashmir vs Peerzada Shah Fahad, a two-judge bench of the top court was dealing with two special leave petitions that arose out of a common 17 November 2023 ruling by the HC, in which the court released Fahad on bail subject to certain conditions.
Special leave petitions or SLPs allow an aggrieved party to be heard in the Supreme Court, in an appeal against an order or judgment of any court or tribunal in India, provided that a substantial question of law is involved or gross injustice is done.
In its order, the HC had partly quashed the charges framed against Fahad under Section 18 of the Unlawful Activities Prevention Act (UAPA), along with sections 121 and 153B of the Indian Penal Code, which relate to the offences of conspiracy; waging or attempting or abetting the waging war against the Government of India; and imputations, assertions prejudicial to national integration, respectively.
However, the court said that certain other charges against Fahad would remain. These related to offences under Section 13 of the UAPA (punishment for unlawful activities), and sections 35 and 39 of the Foreign Contribution Regulation Act (FCRA), which accord punishment for accepting foreign contributions in contravention of the act and deal with offences committed by companies, respectively.
Centre’s challenge to bail order
During the proceedings before the Justice Trivedi-led bench, Solicitor General Tushar Mehta drew attention to the fact that the HC had relied on the 1919 US Supreme Court ruling in Schenck Vs United States.
In its 25-page bail order, the HC had said that the charge against Fahad was associated with his right to freedom of speech and expression.
In Schenck vs United States, the charge against the appellant was under the Espionage Act. Saying that he impeded the US war efforts against the German Empire in World War I by mailing letters to discourage conscripts who were qualified to serve from joining the US Army, the court had applied the Espionage Act against him. However, the appellant argued that the act infringed upon his First Amendment right to free speech.
Justice Oliver Wendell Holmes, Jr, writing for the court, had held: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree”. This also came to be known as the doctrine of clear and present danger.
In the case, the US Supreme Court held that the Espionage Act did not violate the First Amendment.
According to the Legal Information Institute of Cornell Law School, “the clear and present danger test features two independent conditions: first, the speech must impose a threat that a substantive evil might follow, and second, the threat is a real, imminent threat”.
Applying this rationale to Fahad’s present case, the HC held that although the investigating agency “has unbridled authority to arrest or not to arrest under the provisions of the UAPA”, it would have to justify the arrest on the anvil of “clear and present danger” of the accused to society if they are let out on bail.
On Monday, when the matter came up before the two-judge bench of the top court, Mehta argued that two Constitution benches of the top court in Babulal Parate vs State of Maharashtra (1961) and in State of Madras vs V. G. Row (1952) along with a three-judge bench in the 2023 Arup Bhuyan vs State of Assam ruling, had rejected the application of the doctrine of “clear and present danger”, as laid down in Schenck vs United States, and consequently, the observations made in the HC judgement would be per incuriam, or passed without considering all relevant authorities.
Mehta also submitted that although there was sufficient evidence against Fahad for the offence under Section 18 of the UAPA, the high court had wrongly discharged him for the same.
SC says bail order can’t be used as precedent
Although the court acknowledged that there was some substance in Mehta’s arguments, it stopped short of interfering with the HC’s bail order, given that Fahad was already out on bail.
“Though we find some substance in the submissions made by the learned S.G., Mr Mehta, we are not inclined to interfere with the impugned order, having regard to the fact that the respondent is on bail since last about one year and since the trial has already commenced,” the court ruled.
However, the top court directed that the HC’s bail ruling should “not be cited as a precedent in any other case”, on account of being per incuriam, and in contravention of the Constitution bench decisions.
It is also needless to say that any breach of conditions of bail or non-cooperation of the respondent in proceeding with the trial shall entail cancellation of his bail, the court emphasised.
As for the charges against Fahad that had been quashed by the HC, the top court said the trial court was empowered to alter the charges at any stage of the proceedings, with regard to the evidence on record.
Dismissing the SLPs in the case at hand, the top court clarified “that the observations made by the high court in the impugned order shall not come in the way of the trial court in proceeding further with the trial in accordance with law”.
(Edited by Nida Fatima Siddiqui)
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