New Delhi: Inciting people for secession from the Union of India falls under the ambit of “unlawful activity” in the Unlawful Activities (Prevention) Act, 1967, or the UAPA, the Jammu and Kashmir (J&K) High Court has said.
The accusation, it said, that two Kashmiris raised anti-national slogans inciting a struggle for secession of J&K from the Union of India, coupled with statements made by the witnesses “prima facie”, fell under the ambit of “unlawful activity” as defined in Section 2(1)(o) of the 1967 Act.
The term “unlawful activity” is defined under the above-mentioned section to mean any action taken by an individual or association, either by committing an act or through words, whether they are spoken or written, or through signs or visible representation or even otherwise.
Such “unlawful activity” can be intended, or may support any claim, to bring about, on any ground whatsoever, the cession of a part of Indian territory or the secession of a part of Indian territory, from the Union. It could also be inciting any individual or group of individuals to bring about such cession or secession, the provision further adds.
The duo, according to the chargesheet lodged against them, were found inciting the general public gathered after the Friday prayers on 20th March 2015 at Kashmir’s Bandipora market.
By way of the present ruling, the bench of Justices Sanjay Parihar and Sanjeev Kumar also proceeded to add that such an activity of inciting separatism among the people of Kashmir is punishable under Section 13(1) of the UAPA, which punishes individuals that take part in, commit, advocate for, abet, or incite the commission of any unlawful activity, with up to seven years imprisonment, or a fine, or both.
The observations came while the high court overturned a trial court’s discharge order of the two Kashmiris.
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The case
Ameer Hamza Shah and Rayees Ahmad Mir, the two accused, faced prosecution for offences under Section 13 of the UAPA.
In September 2021, the trial court had discharged the duo from Bandipora, holding that except raising anti-national slogans, they did not act in any manner which was prejudicial to the country’s integrity.
Citing the absence of any proof which would indicate that a “law and order problem” had arisen as a result of these men raising the slogans, the court said that there was no material to warrant their involvement in any unlawful activity.
It had cited the 1995 ruling of the Supreme Court in the Balwant Singh vs. State of Punjab case to note that raising anti-national slogans, without any activity of inciting violence or causing harm to the public at large, did not amount to committing an “unlawful activity”.
Subsequently, the Union Territory administration moved the HC, seeking to set aside the trial court order. The release, it submitted, had led to a “grave miscarriage of justice”. The J&K administration also contended that the trial court’s order was an “erroneous” one, and required evaluation of the material placed before it.
What HC said
In its order, the division bench noted that Shah and Mir had chosen not to appear and argue their case. “Today again, when the matter was called, none appeared on behalf of the Respondents,” it said.
Their intention in the 2015 episode, the high court said, was to “instigate the general public against sovereignty of India”, and call for the separation of J&K from the rest of the country.
“They were propagating that Jammu & Kashmir is an occupied territory and exhorting the persons present there to initiate a struggle to achieve the objective of its separation from the Indian dominion,” the court said in its order.
“The trial court was of the view that since the respondents were merely raising slogans with no activity of inciting violence, Section 13 was not applicable,” it said. “This view was palpably wrong, because what Section 13(1), read with Section 2(1)(o) of the UAPA, relates to the commission of an unlawful activity, and the allegations raised against the respondents were squarely covered within the definition of ‘unlawful activity’.”
The HC found that the trial court had failed to apply its mind to the evidence, and had travelled beyond its mandate. “The prosecution ought to have been given liberty to adduce evidence because there was sufficient material on record to warrant the view that respondents had indulged in commission of an unlawful activity,” it said.
Interestingly, the J&K High Court added that although the accused weren’t related to any unlawful association or banned organisation, they were acting in individual capacity and had raised anti-national slogans.
In doing so, it noted that raising such anti-national slogans that incite secession would constitute an “unlawful activity” since its definition includes any claim to bring out, on any ground whatsoever, the cession of any part of Indian territory from the Union.
Such unlawful activity also includes any claim “which incites any individual or group of individuals to bring about such cession, or secession,” it said.
(Edited by Tony Rai)
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