Srinagar/Delhi: Today marks 500 days—one year and four months—since the Jammu and Kashmir (J&K) police arrested journalist Fahad Shah on 4 February 2022, sending a signal to other reporters in Kashmir and hastening the demise of critical coverage from the conflict-ridden valley.
Despite judges granting him bail in three cases and squashing a preventive detention order, the 32-year-old journalist remains incarcerated in an FIR (first information report) registered in April 2022 about a “seditious” and “highly provocative” article published in November 2011, ‘The shackles of slavery will break’, “intended to create unrest in Jammu and Kashmir, to abet the gullible youth to take the path of violence and create communal unrest” and “led to an increase in terrorism and unlawful activities” across J&K.
The chargesheet does not explain why the authorities filed a case a decade after the article was published. The allegation linking the article to an “increase in terrorism and unlawful activities'' appears to be an assumption without evidence. There is no mention of the geopolitical factors that have driven the violent insurgency since the early nineties. There seems to be no proof to claim that the article was “surreptitiously deleted” by Shah and his co-workers.
The article was not authored by Shah but was published on 6 November 2011 in The Kashmir Walla, a little-known digital news magazine he founded earlier that year as a 21-year-old entrepreneur at the start of his journalism career.
The allegation about 40 “seditious” and “anti-India” articles published in The Kashmir Walla over the years suffers from the same defect; there appears to be no evidence linking this “narrative terrorism” to “gullible youth” taking up arms against the state, killing innocent civilians and carrying out terrorist acts.
The chargesheet said the author of the article, Abdul Ala Fazili, a research fellow at Kashmir University at the time, who is currently a PhD scholar in the department of pharmaceutical sciences at Kashmir University, supported by the now rescinded Maulana Azad National Fellowship till 2021, and the publisher, Shah, “under a well directed and Pakistan’s efforts have resurrected a platform for reviving the narrative in support of the terrorist and separatist ecosystem”.
But little is said about how, when or where the two of them plotted to create “a sense of hatred and disaffection towards that government of India” on the instructions of their “handlers” based in Pakistan.
The investigators do not have the email from Fazili to Shah containing the draft of the article, which could bring into question the very premise of the case.
Shah is incarcerated in Kot Bhalwal jail in Jammu, over 250 km from his home in the restive locality of Soura in downtown Srinagar. So is Fazili.
Charged with conspiracy for a terrorist act, unlawful activities, attempting to wage war against the government of India, causing disappearance of evidence, assertions prejudicial to national integration and accepting foreign currency in contravention of the law in this case registered under India’s anti-terror law, the Unlawful Activities Prevention Act, 1967 (UAPA), the Indian Penal Code, 1860, and the Foreign Contribution Regulation Act, 2010, Shah faces between five years to life imprisonment or the death penalty.
During arguments, Shah’s lawyer, senior advocate P N Raina, argued that section 18 of the UAPA (conspiracy for a terrorist act) could be invoked if section 15 (terrorist act) was made out, not section 13 (unlawful activity).
Shah was charge-sheeted for criminal conspiracy under section 120B of the IPC but was not charged.
Shah’s arrests have mirrored a pattern of multiple cases against dissenters and critics of Prime Minister Narendra Modi’s government and the ruling Bharatiya Janata Party to keep them behind bars if the courts grant them bail (here, here, here and here), as Article 14 has reported.
After Shah was granted interim bail on 26 February in the UAPA case he was first arrested in on 4 February, the J&K police arrested him in three more cases— another UAPA case from May 2020 and an IPC case from January 2021, neither of which had seen any police action till that point, and then the one in April 2022. They also slapped him with a preventive detention order under the Jammu and Kashmir Public Safety Act (PSA), 1978, on 11 March 2022.
More than a year later, Shah received bail in all the cases except the one registered in April in Jammu and being investigated by the J&K State Investigation Agency (SIA), created in November 2021 to investigate and prosecute terror-related cases expeditiously, coordinating with the National Investigation Agency (NIA) and other central agencies.
While rejecting bail in this case on 15 July 2022, the designated NIA court Jammu, presided by Ashwani Kumar Sharma, said, “Blue pencilling of news articles by anyone other than the editor is not welcome in the polity. Editors have to take responsibility for everything they publish and to maintain the integrity of the published record. It can cause far-reaching consequences in an individual and country’s life. Because news item has the potentiality of bringing doomsday for an individual.”
Sharma said that “jail is the rule and bail is an exception” under the UAPA.
The chargesheet submitted on 12 October 2022 said, “As regarding the role of the editor, it is submitted that an editorial/article has the potentiality of bringing doomsday for a state/country.”
Charges were framed on 16 March 2023 by Sharma of an NIA court in Jammu, who found a prima facie case was made out against the co-accused Shah and Fazili.
The PSA order was quashed by Justice Wasim Sadiq Nargal of the High Court of Jammu & Kashmir on 11 April 2023 due to procedural lapses and the “vague and bald assertions” made on the grounds of detention.
An Exercise In Assumptions
The FIR registered on 4 April 2022 said that “anti-India elements within the media” have held “secret meetings” with Pakistan’s intelligence service (ISI) to “form digital media platforms that are inexpensive but have a wide reach, and can conceal their association and funding from hostile foreign agencies and terrorist and secessionist entities”.
“These contaminated and compromised” media persons were working to construct a “false and distorted account of events in Kashmir” to persuade people that “nothing good could or should happen as long as Kashmir is part of India, Indian state by default is brutal, anti-Kashmiri, anti-Muslim” and Pakistan is not only “desirable” but “feasible” as well, as per the FIR.
No details of the alleged “secret meetings” appear to have been provided.
The allegation that Shah received foreign funding to the tune of Rs 30 lakh in a bank account not maintained under the Foreign Contribution (Regulation) Act, 2010 (FCRA) is used by investigators for a general indictment of independent news organisations asking for subscriptions, linking them with hostile foreign agencies, terrorist and secessionist entities and on being on the payroll of the ISI.
The “subscription model of circulation has enabled funding by like-minded separatists who have camouflaged the funding under the guise of readership programs”, as per the chargesheet. And “the unscrupulous elements can utilise this route to fund an entity to foment trouble in a region and carry out propaganda in its own interest”.
Allegations such as the article of 6 November 2011 “led to an increase in terrorism and unlawful activities”, that it was “surreptitiously deleted”, or that the subscription model of funding independent media organisations is used to “foment trouble”, have one thing in common: they appear to be based on assumption rather than evidence.
The same could be said for allegations such as the VPN network that Shah was using “was most probably to be in touch with Pak handlers and conspirators”, a file called ‘story tips for narration” was “in all probability received as a toolkit to propagate the separatist agenda”, and “contaminated and compromised journalists” were conspiring and on “the payroll of the ISI”.
This article, which allegedly radicalised Kashmiri men, which was very likely among the data lost when the Kashmir Walla website came under a distributed denial of service (DDOS) cyber attack in 2020 and had to be redesigned, was retrieved by the SIA for the investigation and is currently available online for anyone to read.
Journalists Under Siege
Shah is among at least 35 Kashmiri Muslim journalists to have been summoned to police stations, raided and arrested after the Modi government rescinded J&K’s semi-autonomous status in August 2019 and demoted India’s only Muslim-majority state to a union territory.
One year before the abrogation of J&K’s special status, India witnessed the MeToo movement, where Shah was accused of sexual harassment, reportedly by three women, including an intern he worked with.
Shah said the allegations were a “concerted vilification campaign”.
After the union government took control of the police and law and order in the new union territory and media outlets gave up critical coverage to survive, independent journalists took over reporting on the state excesses, with The Kashmir Walla and its editor Shah becoming very prominent.
In 2020, Shah was nominated for the Press Freedom Prize For Courage, administered by the Paris-based Reporters sans Frontières (RSF), for playing “an important part in defending press freedom, using innovative methods to keep 8 million Kashmiris informed” after August 2019.
That same year, the J&K Department of Information & Public Relations (DIPR) issued a “revised media policy” allowing the DIPR to “examine” content of print, electronic and other forms of media for “fake news, plagiarism and unethical or anti-national activities”, “de-empanel” and prosecute any individual or group found guilty of the above, and not release advertisements to such media, in effect giving the government control of the press.
“Where are the critical articles is what I would ask,” Omar Abdullah, a former chief minister of J&K and the vice president of the Jammu Kashmir National Conference, told Article 14. “It is difficult to distinguish between a newspaper and a government gazette. So, are the journalists freely doing it? Let me ask you.”
Kashmiri journalists arrested since 2018 include Asif Sultan, Qazi Shibli, Mohammed Manan Dar, Sajad Gul, Fahad Shah, and Irfan Mehraj. Sultan, Gul, Shah and Mehraj remain behind bars.
After Gul was granted bail in a criminal conspiracy case, shortly after being arrested in January 2022, he was booked under the PSA and shifted to Kot Bhalwal jail.
While granting bail to Kashmiri photojournalist Manan Dar in a UAPA case in January 2023—one year and three months after the NIA arrested him in October 2021—additional sessions judge Shailender Malik said the evidence showed the allegation that Dar was conspiring to undertake violent terrorist acts “does not appear to be cogent and true”.
“The way multiple cases have been slapped on Fahad Shah, this is being done to deny him any relief,” Anuradha Bhasin, executive editor of the Kashmir Times, a vocal critic of the Modi government, who, in January 2020, moved the Supreme Court against the internet shutdown in Kashmir after the abrogation in August 2019, and whose offices in Srinagar were sealed in October 2020.
“First, you imprison a person, and then you look at what can be made against him. The law shouldn’t have been allowed to operate like this,” said Bhasin, the author of A Dismantled State: The Untold Story of Kashmir After Article 370. “The arrest of Fahad and other journalists has created a fear psychosis, and nobody is ready to risk reporting a story critical of the government. Journalists are operating under overwhelming fear.”
India’s ranking on the 2023 Press Freedom Index, compiled by RSF, slipped to 161 out of 180 countries, down 11 places from 2022 because “the situation had gone from ‘problematic’ to ‘very bad’.”
“Anyone from the govt saying that there is absolute freedom of the press in Kashmir is not stating the truth,” said @shafqatwatali Shafqat Watali, a retired J&K police officer who served as the inspector general of police (IGP) for traffic, who joined the National Conference in 2019, referring to J&K Lieutenant Governor Manoj Sinha’s remarks about the media enjoying “absolute freedom” in Kashmir.
Sinha said that “seven journalists in Kashmir were arrested on terror charges and for disrupting social harmony, not for their reporting”.
Watali said that since the abrogation of J&K autonomy in August 2019, journalists in Kashmir have been “working under very difficult circumstances”, and “no one is allowed to cross the Lakshman Rekha set by the govt”.
"Many journalists like Fahad Shah have been booked under laws in which getting bail is almost impossible. Although courts are doing their best to dispense justice, the painfully long process to secure justice from the courts has become the punishment," he said.
Muslim journalists in other parts of the country, critical of Modi and the BJP, including Mohammad Zubair and Siddique Kappan, were also arrested and released only after the Supreme Court granted them bail.
It took Kappan more than two years to fight his way out of incarceration in the BJP-run Uttar Pradesh even though the Supreme Court ultimately found that he was exercising his right to freedom and expression as a journalist, granting him bail in a UAPA case and the Allahabad High Court found that no prima evidence of money laundering for terrorist activities.
Echoing The Government
The Modi government has repudiated surveys and studies on targeting journalists and religious minorities since the BJP came to power in May 2014, dismissing them as questionable, non-transparent, flawed, biased and motivated.
The chargesheet in Shah’s case said the “objectivity” of the RSF and the word press freedom index had been questioned. It was an entity “involved in subverting democratic freedoms all over the world”, and it was “unfairly critical of South Asian countries, especially India and Latin American countries. As such, the funding from the entity was highly suspicious”.
The RSF transferred Rs 10,59,163 to an HDFC bank account in the name of TKW (The Kashmir Walla) Media Pvt Ltd in 2020-21.
Daniel Bastard, head of the Asia Pacific Desk for the RSF, told Article 14 that a media assistance grant was sent to The Kashmir Walla, not Shah, the individual.
“It is strange, to say the least, for an agency with special police powers with little regard for human rights to accuse a non-governmental organisation like RSF for ‘subverting democratic freedoms’. Our mandate is precisely to defend press freedom as a guarantee for democracy,” said Bastard. “The methodology used for the World Press Freedom Index is perfectly transparent and available on our website.”
The chargesheet said the RSF’s funding was under investigation.
Judge Frames Charges
The FIR registered on 5 April 2022 only named Fazili, not Shah. The complainant’s name was not revealed. The date of birth of the complainant has been shown as “01/01/2000”.
It said a “discreet but reliable source” on 4 April provided a printout of the article. It said, “It was part of the ongoing operation to build and propagate the false narrative that is essential to sustain the secessionist-terrorist campaign and take it to its logical conclusion: break the territorial integrity of union of India, by making Jammu and Kashmir secede and annexing it with Pakistan”.
Shah, the chargesheet said, “has a history of misreporting and publishing articles that are seditious in nature and cause disharmony among the masses,” which has led to three more FIRs registered against him.
Forty articles published in The Kashmir Walla show him to be a “habitual offender” who “regularly uploads articles that are prejudicial to the integrity, sovereignty and the maintenance of peace and tranquillity”. The digital magazine "propagates secessionist and terror-related ideology” by making false accusations and distorting facts.
A set of unpublished poems, where Shah supposedly said that the freedom of Kashmir was his “birthright” and he was “mentally and emotionally part of anti-India resistance”, images of a protest with placards saying “stop genocide, stop the bloodshed”, and other “toolkit/tips” for writing propaganda, found on his laptop, the chargesheet said, have “motivated many youths to become terrorists and separatists” and “abetted the commission of unlawful and terrorist activities.”
Similar to the lack of supporting evidence linking the 2011 to “increase in terrorism and unlawful activities'', the chargesheet does not show how Shah’s unpublished poetry book "motivated many youths to become terrorists and separatists”.
Framing charges against Shah in March, Sharma said that if the allegations levelled by the police, witness statements, the article and other materials “were taken into consideration in their entirety prima facie, there is sufficient material against the accused persons for the commission of the offence”.
Sharma said that the bank statement showed he had received foreign funding to the tune of Rs 10.5 lakh from RSF in 2020-21, Rs 30 lakh by way of subscriptions from abroad into a bank account not registered under the FCRA and a cash deposit of Rs 15 lakh that was suspicious.
The judge said, “It is a settled position of law that at the stage of framing of charges, the court is not required to see the admissibility/non-admissibility of the evidence or documents, but required to evaluate the material and documents on record with a view to find out if the facts emerging there from taken at their face value discloses the existence of all the ingredients constituting the offence.
And at the time of framing the charges, the probative value of the material on record cannot be gone into, but before framing a charge, the court must apply its judicial mind to the material placed on record and must be satisfied that the commission of offence by the accused was possible and if from the material on record the court could form an opinion that the accused might have committed offence it can frame the charge.”
The Article & The Assumption
The case is primarily based on an article, The shackles of slavery will break, published on 6 November 2011, which “brazenly glorified terrorism”, “led to an increase in terrorism and unlawful activities”, and “it has and will motivate many youth to become terrorists and separatists”.
The chargesheet does not explain how investigators have linked the “increased terrorism” with this article, solely or in part, published on the website of an independent digital magazine, which, as we said, had just been launched and not widely known.
Do the investigators have data on how many people read the article? Are there witnesses who say they were radicalised and took up arms against the Indian state after reading this article? Article 14 could not find information in the legal documents we could access.
Official figures from the CID headquarters and the inspector general of police (IGP) in Kashmir, for the “missing youth who joined terrorist ranks in Kashmir”, “unlawful/terrorist violence incidents”, and people—civilians, police personnel security forces and terrorists—killed for the years from 2012 to 2018, were included in the chargesheet. But these showed the fewest recruits, incidents and fatalities in the years after the article was published, increasing manifold till 2018.
The number of "missing youth who joined terrorist ranks in Kashmir", being the lowest in the years after the article was published, would suggest the article had a minimum impact.
But the chargesheet said, “it is amply clear that the number of youth who took up arms against the state has increased manifolds since 2011” and “the unlawful/terrorist activities have shown an unprecedented upward trend consistently post-2011 (after the publication of this article)".
Given that the chargesheet does not mention the historical and political background of the militancy in Kashmir, is the state claiming there was no “terrorism” in Kashmir before the article was published in November 2011? Or did the geopolitical reasons that triggered the violent militancy in the early nineties cease to exist after the article was published?
The allegation of an “increase in terrorism” is also flawed unless investigators were to say what this increase was relative to; assuming it was before November 2011, they would have to show that 2012 was the worst year for “terrorism” since the early nineties.
A compilation of the incidents of killing—civilians, security forces, terrorists/insurgents/extremists—by the South Asia Terrorism Portal from 2000 to the present data shows the decade preceding 2011—2000 to 2010—to have been a far deadlier one than the years following the publication of the article.
There are other inconsistencies.
In the order rejecting bail on 15 July 2022, Sharma said that it was contended that “even funds have been raised for the commission of terrorist activities”, but no mention was made of the same in the chargesheet.
More Assumptions
The FIR said that the owner and managers of The Kashmir Walla “surreptitiously removed the write-up a few days ago as part of destroying evidence even though with technical tools and further corroborated by human witnesses, it can easily be established that the write was very much there in The Kashmir Walla portal”.
The chargesheet reiterated that Shah “surreptitiously removed the write-up as part of destroying the evidence”, and the investigators made a “preservation request to the domain provider” Godaddy.com on 11 April 2022, following which the article reappeared on the website.
The “technical evaluation” of the article—a comparison of the online and the print version they had—is made to sound like a complex operation by the “technical section” of the CID headquarters, involving a “URL extractor tool” to get the IP address, “downloading the article” from the website by the “technical expert”, taking printouts, and deputing an “English expert” to compare it to the print version provided by the “reliable source”.
This begs the question of where the “reliable source” got a printout of the article on 4 April 2022, more than ten years after it was published on 7 November 2011, following which the FIR was registered the next day.
The FIR said the article was removed by Shah “a few days ago”—when Shah was incarcerated in the slew of FIRs he was hit with before this one and a preventive detention order.
Given that GoDadday.com recovered the link for the SIA, it is worth asking if investigators asked them to provide the date it was deleted and why that information was not included in the chargesheet.
Otherwise, the allegation that Shah “surreptitiously removed the write-up” appears to be another assumption.
An employee of The Kashmir Walla, in a police witness statement, said that after the website came under a DDOS cyber attack in 2020 and was redesigned in October 2021, some data, including emails and templates before 2021, was deleted.
The article may have been lost at the time.
Investigators acknowledged the data loss after the 2020 attack when they were forced to explain why they could not produce the email from Fazili to Shah containing the draft of the article.
The chargesheet said investigators could not retrieve the article from the email of The Kashmir Walla because data, including emails and templates of the website, were deleted after the cyber attack and its subsequent redesigning.
The chargesheet said the investigators accessed three of Fazili’s email accounts, but “nothing incriminating, including the email sent to the editor-in-chief of the Kashmir Walla, was recovered from the said exhibits '.
Investigators were unable to access a fourth deleted email account.
The chargesheet said that Fazili “may have used” this account to send the email with the draft, which is yet another assumption.
They rely on the witness statement of The Kashmir Walla employee, who said the digital magazine published articles after verifying the author's identity, to show that Fazili authored the article and sent it to Shah for publication.
What Was The Conspiracy?
The chargesheet said, “…select anti-India elements within the media, guided from across, have held several secret meetings in which the adversary instructed select to form media platforms, especially digital platforms that are inexpensive but has wider reach, form and float associations that can conceal and camouflage such persons and screen their connections with and funding hostile foreign agencies and terrorist/secessionist agencies”.
Article 14 did not find details of the “secret meetings” in the legal documents we could access. It is also worth asking if any of them were held before 9 July 2010 when, according to the chargesheet, the domain name “thekashmirwalla.com” was registered with GoDaddy.com.
The chargesheet does not explain how the “well-directed conspiracy” to radicalise the youth of Kashmir at the behest of forces based in Pakistan was hatched between the two accused: where they met, how they communicated and whether it occurred before the publishing of the article on 7 November 2011 or during the past ten years.
In a statement dated 1 June 2022, one police witness, a head constable, said during questioning by the chief investigating officer, Shah said he knew Fazili “very well”.
In his bail application, rejected on 15 August 2022, Shah said he was subjected to physical and mental torture, and the police personnel tried hard to extract a confession from him.
This alleging of a conspiracy between two seemingly unrelated people is in line with a pattern of clubbing people against whom the government wants to act in one case, using the criminal provision of conspiracy—section 120B of the IPC or section 18 UAPA—that makes it difficult to get bail—leading to months and years behind bars without trial.
For instance, in the Delhi riots conspiracy case, protesters who opposed the Citizenship Amendment Act, 2019, and student activists, some with little or no connection with each other, have been charged under section 120 B and the UAPA. Three Delhi High Court judges—Justices Suresh Kumar Kait, Siddharth Mridul and Anup Jairam Bhambhani, have given bail to four alleged conspirators finding no prima case is made out by the Delhi police.
Chargesheets Yet To Be Filed
The chargesheet said three FIRs have been registered against Shah for “publishing of such articles and giving the writers of such seditious writings a much-needed platform” and “were under investigation at various police stations” in Kashmir.
It is worth noting that Shah received default bail in two of these cases in December 2022 because the J&K police did not complete the investigation and file a chargesheet within the stipulated time of 180 days even though they were registered under India’s anti-terror law, the UAPA, one in February 2022 in Pulwama and the other in May 2020 in Safakadal.
The chargesheets are yet to be filed in the two UAPA cases in Safakadal and Pulwama.
Keeping Him Behind Bars
Shah was arrested under the UAPA on 4 February 2022 in FIR 19/2022 of 31 January 2022 registered at the Pulwama police station.
The J&K police said, “some Facebook users and news portals are uploading photographs/videos that can provoke the public to disturb law and order” and were “tantamount to glorifying the militant activities and dent the image of law enforcing agencies besides causing disaffection against the country”.
The Kashmir Walla’s stories on 30 January about a gunfight in Naira village in Pulwama district, where security forces killed four alleged militants, including a 17-year-old, carried the version of the family in which they claimed the teenager was innocent, as well as the police version that he was a “hybrid militant” who refused to surrender before the security forces.
On 5 February, the police said that Shah is “wanted in three cases of glorifying terrorism, spreading fake news & inciting the general public for creating L&O situations”.
After he was granted interim bail on 26 February 2022 until 12 March 2022 by additional sessions judge Manjeet Singh Manhas, the special judge of an NIA court in Srinagar, Shah was arrested the same day in FIR 06/2021 registered a year earlier on 31 January 2021 at the police station Imam Sahib in Shopian after two news outlets, The Kashmir Walla and the Kashmiriyat, reported that a school in Shopian was “pressurised” by the Indian army to hold a Republic Day function.
The army called it “fake news”.
On 5 March 2022, Shopian munsif Mir Sayeem Qayoom granted Shah bail in the case registered under sections 153 (provocation with intent to riot) and 505 (statements conducing to public mischief) of the IPC. Noting that the FIR was registered on 30 January 2021 and Shah was arrested on 2 March 2022, Qayoom said the investigating agency had availed sufficient time for the custodial investigation of the accused.
“In a barbaric society, you can hardly ask for bail, in a civilised society, you can hardly refuse it. In other words, “bail is a rule, and its refusal is an exception”, he said.
That same day, 5 March, Shah was arrested under the UAPA in FIR 70/2020 registered two years earlier at the Safakadal police in Srinagar following The Kashmir Walla’s reporting on an operation carried out by security forces in Srinagar’s Nawakadal area in which two militants were killed, and more than a dozen houses were damaged.
Shah, who was moved from the Imam Sahib police station to the Safakadal police station, was placed under preventive detention order issued on 11 March 2022 under the PSA.
Three days later, on 14 March, Shah was moved from Safakadal to the Soura police station in Srinagar. He was booked under the PSA on 16 March and moved to the Kupwara district jail.
Shah was arrested under the UAPA in a fourth case about the November 2011 article on 20 May and moved to the Kot Bhalwal jail in Jammu.
On 15 July, Sharma rejected bail in the case because “prima facie there are reasonable grounds to believe that the accusations against the accused/applicants herein are reasonably true”.
Sharma said that “there are chances of tampering with the witnesses of the prosecution and fleeing of the applicants from the course of justice”, and “bail cannot be granted when the national interest are involved as the national interest will prevail over the individual interest”.
On 7 December 2022, Shah got default bail from Manhas in the UAPA cases of the Pulwama and Safakadal police stations because no chargesheets were filed within the statutory prescribed period of 180 days.
On 16 March 2023, Sharma framed charges against Shah in the SIA case.
On 13 April 2023, the Jammu and Kashmir High Court quashed the PSA order of 11 March 2022 against Shah, finding “no compelling reasons have been given or shown” and “the order of detention cannot sustain the test of law”.
“Vague And Bald Assertions”
While fighting the preventive detention order issued against him under the PSA on 11 March 2022—on the grounds that he had indulged in inciting violence leading to disturbance in public order and as the head of The Kashmir Walla, he was continuously propagating stories against the interest and security of the nation—Shah told the J&K High Court that the allegations against him were baseless and he was already in custody in the Safakadal case.
Furthermore, the detaining authorities did not give him the police dossier, FIRs and other recordings to frame the ground of detention, depriving him of his constitutional and legal rights to make an effective representation against the government.
While making a case for preventive detention, the government advocate Sajjad Ashraf quoted the Greek writer Sophocles: “Law can never be enforced unless fear supports them”. He said that when “individual liberty comes into conflict with an interest of that security of the state or public order, then the liberty of that individual must give way to the larger interest of the nation”.
Quashing the detention order, Justice Wasim Sadiq Nargal said that the authorities did not provide the dossier and the other relevant material to the detenu to defend himself, the use of public order and security of the state—two different concepts—interchangeably in the detention order, revealed a non-application of mind, and the grounds themselves were “vague and bald assertions without any specific details” against which an effective representation cannot be mounted.
(Mubashir Naik is an independent journalist based in Kashmir. Betwa Sharma is managing editor of Article 14.)
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