New Delhi: Two recent orders of the Jammu and Kashmir (J&K) High Court foregrounding the protection of life and liberty and the right to freedom of speech and expression while granting bail to one Kashmiri journalist and quashing the preventive detention order of another offered some reprieve for beleaguered journalists in the union territory, but there is little sign the State will embrace the letter and spirit of the pronouncements.
Indeed, on the same day as the second of the two orders was reported,
J&K’s director general of police, R R Swain warned “people who write” not to “hide” behind the right to freedom of speech.
Kashmiri journalist Sajad Gul was 26 years old when he was slapped with a preventive detention order by the J&K police on 14 January 2022. This was nine days after he had already been arrested for sharing on social media a video of a slain militant’s family shouting slogans against India and, crucially, one day before he received bail in the matter.
His lawyer would argue the State detained him under the Jammu and Kashmir Public Safety Act (PSA), 1978 to keep him from getting out of jail, a common refrain of journalists and activists slapped with multiple cases since the Bharatiya Janata Party came to power almost ten years ago, and India’s global press freedom ranking has plummeted to 161 out of 180 countries.
On 9 November 2023, just two months short of the two years that the draconian PSA allows for a person to be jailed without a trial, the chief justice of the High Court of Jammu & Kashmir and Ladakh, N Kotiswar Singh, and Justice M A Chowdhary said a detention order based on “such vague grounds” could not be sustained. They found the detaining authority had not applied its mind, there was no specific instance of his write-ups or posts being prejudicial to the State's security, and detaining critics was an abuse of the preventive law.
The news of the quashing broke on 18 November, the day after the high court granted bail to Fahad Shah, another Kashmiri journalist who was arrested on 4 February 2022, a month after Gul, and subsequently arrested in four cases—three of them under India’s anti-terror law, the Unlawful Activities Prevention Act, 1967, and slapped with a PSA order as well.
In the two years since his arrest, Shah, the editor of the independent news outlet The Kashmir Walla, received bail in three cases. The PSA order against him was quashed in March this year by Justice Wasim Sadiq Nargal for reasons that would be echoed in the quashing of Gul’s order—non-application of mind and “vague and bald assertions” by the State.
The case in which Shah received bail this month was registered by the National Intelligence Agency (NIA) in April 2022 in connection with an article that was published more than ten years earlier in November 2011 in The Kashmir Walla, a fledgling magazine that Shah, then 21 years old, was trying to build.
The State alleged this “seditious” and “highly provocative” article, ‘The shackles of slavery will break’, written by Abdul Ala Fazili, a research fellow at Kashmir University at the time, “intended to create unrest” incite young men to be violent and “led to an increase in terrorism and unlawful activities”.
Article 14’s examination of the police case in June after sessions judge Ashwani Kumar Sharma of the NIA court in Jammu rejected bail and framed charges under the UAPA against Shah showed the police case to be an exercise in assumptions with no evidence that the article in question had led to an increase in terrorism of unlawful activities in the region, where a violent Pakistan-backed insurgency had been raging since the early nineties.
‘The Foregrounding Of A Systemic Problem’
While granting bail to Shah, the division bench of Justice Mohan Lal and Justice Atul Sreedharan found no incitement of any kind in the article or in the articles published in The Kashmir Walla or the poems that Shah wrote in his personal capacity. There was nothing specific connecting the article with a breach of peace and tranquillity, and it “summarily rejected” the State’s apprehension that funds, including overseas remittances, were used for terror funding.
Not only did the High Court grant bail, the judges removed the charges of conspiracy to commit a terrorist act (section 18 of the UAPA), the offence of waging war against the Government of India (section 121 of the Indian Penal Code, 1860), and assertions prejudicial to national integration (153-B IPC).
In addition to finding that section 18 was not made out because nothing the prosecution described constituted a terrorist attack under section 15 of the Act, the judges said that the UAPA provisions that restrict the scope of granting bail have to be weighed against the fundamental rights of the accused person by checking if the arrest was legally justified and if there was clear and present danger if they were released.
This kind of “doctrinaire jurisprudence” was necessary after the judiciary’s response to the State arresting journalists mainly had been piecemeal, with “a bail here and a quash there”, Supreme Court advocate Shahrukh Alam said.
“I think it is beautiful where he has put constitutional rights before the provisions of the UAPA. To my mind, that has not been done so explicitly before,” said Alam, referring to Sreedharan’s order.
Referring to the proviso in the anti-terror law that makes it difficult for judges to grant bail by making it incumbent on them to accept the prime facie case of the State, Alam said, “So, yes, he is saying 43(d)(5) is there, UAPA is there, but you have to show why there was a need to arrest and that emanates from Article 21 rights and that hasn't really been articulated so explicitly before.”
On Gul’s PSA order, Alam said it was significant that the chief justice had foregrounded the right to free expression, but there had been orders like it before.
“It wasn't extraordinary, but I really liked Sreedharan’s (order) because he brought forth 21 rights and said he would assess and judge this based on 21 rights,” said Alam. “The foregrounding of a systemic problem is what I really liked about it.”
‘Process Becomes The Punishment’
While the order quashing the PSA order against Gul was passed on 9 November, he had not yet been released when this story was published. A trainee reporter at The Kashmir Walla when he was arrested, Gul was first jailed in Kot Bhalwal in Jammu, 300 km away from his native Bandipora district, and then transferred to a jail in Bareilly, Uttar Pradesh, 1000 km away from his home.
The High Court order said that of the three cases pending against him, Gul had received bail in one but made no mention of the status of the others.
Speaking with Article 14 in December 2021, days before he was arrested, Gul had said, “I sleep with all my clothes on, I keep shoes beside my bed. I do not know when they will raid our house again and take me away.”
Shah, who was held at Kot Bhalwal jail, 250 km from his home in Srinagar, was released five days after the court granted him bail.
Anuradha Bhasin, the editor of The Kashmir Times, one of the few remaining critical voices from the region, said the orders favoured the two journalists, but it took close to two years to get them.
“I find it very significant in the context of free speech that the court is making a distinction between reporting, having an opinion and acts of violence and inciting terrorism,” said Bhasin. “But it took almost two years to get these orders, so the process became the punishment.”
Impact Of The Verdict
The government of Narendra Modi rammed the abrogation of Article 370 of the Indian Constitution through Parliament in August 2019, rescinding the semi-autonomous status of India’s only Muslim-majority State and intensifying the crackdown on the media in one of the most heavily militarised zones in the world.
Critical coverage from the region that has long been mired in bloodshed, separatism and human rights violations came to an end as journalists were summoned to police stations, interrogated, and arrested. Homes were raided. Some were accused of grave crimes against the State and jailed under draconian laws. Others were stopped from flying out of the country. A new media policy was seen as a veiled threat against critical coverage. Long-running dailies dependent on government advertisements were also defanged.
In the climate of fear that built up after the abrogation of Article 370, The Kashmir Walla, which was running on an international grant while making urgent appeals for people to subscribe, was one of the last few independent publications providing critical reportage from the region.
Shah was one of the journalists accused of being part of the MeToo movement that exploded in India near the end of 2018. He denied the allegations. Over the next few years, as many journalists censored themselves and he grew more and more vocal, the police began interrogating him and registering cases against the stories being published in The Kashmir Walla. With his arrest in February 2022, the media landscape was more or less silenced.
While he was languishing in the Kot Balwal prison, a few reporters remaining at The Kashmir Walla said their website was blocked by the ministry of electronics and information technology and its social media accounts were shut down in August 2023.
Close to two years after they were arrested, the orders in favour of Gul and Shah this month were received in silence, as it was widely felt they were unlikely to make any difference to ground realities.
If there was some muted optimism, it dissipated after J&K’s director general of police, R R Swain, seemingly in defiance of the orders, said that journalists could not hide behind the right to free speech and expression.
“There will be sustained action against people who motivate and recruit. Even people who write very differently are also liable for encouraging recruitment…likhne wale bhi jo hain, hum unke khliaaf bhi karwai karenge (people who write, we will investigate them),” said Swain. “Yeh jo chupte hain iske piche, freedom of expression ke naam par aap logon ko bhadkate hain, ye hum hone nahin denge (People who hide behind the freedom of expression and incite people, we will not let this happen).
Bhasin, the editor of The Kashmir Times, said the court and State were saying two very different things.
“If you see the DGP’s very brazen Statement right after these orders, there is a gap between the essence of the verdict and what is actually happening on the ground,” she said.
Bhasin, who filed a writ petition against the internet showdown that went on for months after the abrogation of Article 370 and whose office in Srinagar was sealed the following year, said, “The judgement is good, but how it pans out in real life remains to be seen. If the State respected court orders and the rule of law, we would not be where we are,” said Bhasin.
“People are not even talking about their electricity and water problems,” said Bhasin. “The other things were already red lines. The fear is deepening. Kashmir is at a different level.”
Retaining Section 13 UAPA
Before bail in this case, Shah received bail in the three other cases in which he was booked, including default bail in two cases because the J&K police did not file a chargesheet even after booking him under the UAPA.
While granting bail, the court dropped the charges of section 18 UAPA, section 121 IPC, section 153-B IPC, retaining section 13 of the UAPA—punishment for unlawful activities—and section 35 and section 39 of the Foreign Contribution (Regulation) Act, 2010 taking a prima facie view that the appellant had received remittances from overseas without intimating the authorities about it.
However, the court did not explain why it retained section 13 of the UAPA.
Referring to Justice Sreedharan, Alam said, “He talks about how criminal law must be very specific but then allows for section 13 charges which are as overbroad and vague, which can include anything at all. So, if he has found nothing wrong in his writing, then why has he allowed for section 13?”
Furthermore, Alam pointed out the court did not rebuke the State for the “absurd” allegations they had levelled against Shah with no evidence to back them up.
“He has spent nearly two years in jail, so where is the accountability?” said Alam. “There has been no comment on how bad this practice is or how systemic it has become. There is no harsh word against the absurd argument that the prosecution is making.”
Court Find No Problem With The Reporting
Referring to the article written by Fazili and published in The Kashmir Walla on 6 November 2011, the court said there was no reference for accession with Pakistan, no calls to arms, no incitement to an armed insurrection against the State, no incitement to violence of any kind, much less acts of terrorism or of undermining the authority of the State with acts of violence.
The prosecution submitted a “large compilation of other articles” to show that Shah repeatedly produced inciteful material.
The judges said the article, Ansar Ghazwat-ul-Hind: Kashmir’s loneliest militant group’s perpetual fights, parts of which the prosecution read out in court was written by Yashraj Sharma (a reporter at The Kashmir Walla), who happened to be a witness for the prosecution. It was a reported piece about an incident in the valley. They said the offending words quoted were that of the militant to his family, and there was no glorification of the militant or incitement to any kind of violence.
“None of the articles either espouse violence against the State or the government agencies, but they report instances of violence and the opinion of others which is in the quotations,” the order said.
Shah’s unpublished poems, the judges said, “reflect his fondness for the Valley and freedom, as also his pain and anguish at the turmoil in the State”.
“These poems have been placed before the court only to show the mental bearing of the Appellant as someone who is of a separatist mentality. In other words, the prosecution wants the court to hold the Appellant prima facie at fault for his mental State,” they wrote.
Later in the order, the court noted under the subhead of “views regards Kashmir problem/General view”, the police had in the chargesheet recorded that Shah was “a person with a moderate and liberal mindset and has always written about Kashmir policies and local political parties and was of the opinion that Kashmir needs to be developed rather than becoming a free State”.
While noting the State had not charged Shah under section 17 of the UAPA—punishment for raising funds for a terrorist act—but charged him under the FCRA instead, the court “summarily rejected” the State’s “apprehension” that funds, including overseas remittances, could have been used for terror funding.
Regarding linking the 2011 article with the breach of peace and tranquillity, the court noted the defence argument, but no specifics were provided. The FIRs registered were for 2020 and 2022, and “it cannot be presumed reasonably that instances of stone pelting that may have taken place in the year 2022 were on account of instigation of the offending article uploaded in 2011”.
Fixing liability for offences between 2020 and 2022 for an article published in 2011, the court said, “would be stretching causation to absurd limits”.
As for the prosecution's allegation that the article ignited a “feeling of jihad” in the “gullible youth” and the data of incidents of violence and missing persons who joined terrorist ranks since the story was published in 2011, the defence said it was speculative.
None of the prosecution’s 44 witnesses or so-called missing persons said the article radicalised them, the defence said.
‘Turning Criminal Law On Its Head’
The court noted the argument of the defence that the State made no case out for section 18 of the UAPA—conspiracy for committing a terrorist act—and so the proviso to 43D(5), restricting the scope for grant of bail for offences under chapter four and six of the Act, did not apply.
For section 18 to be made out, the accused had to commit a terrorist act defined under section 15 of the Act and no such allegation was made by the police.
For section 15 to be applicable in this case, the court said, the State had come up with a “novel argument” by saying that “property” under section 2(h) of the Act is the corporeal and incorporeal property. The latter included the honour, dignity and fair name of India, which the article had besmirched.
The court said, "...if this argument is accepted, it would literally turn criminal law on its head”.
The court said, “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.”
Foregrounding Article 21
The J&K High Court said the Supreme Court in Zahoor Shah Watali (National Investigation Agency vs Zahoor Ahmad Shah Watali 2019) had interpreted the proviso to section 43D(5) to restrict the granting of bail but widened the scope in KA Najeeb (Union of India vs KA Najeeb 2021) when fundamental rights were violated.
Citing the Supreme Court’s observations in Joginder Kumar (Joginder Kumar vs State of UP 1994) and KA Najeeb, the High Court said that arrest without legal justification would be an arbitrary exercise of executive discretion and violate Article 14 and Article 21 of the Constitution and an accused would be granted bail.
The second question the court considered on the point of bail and the intention behind the proviso to 43 D(5) was whether an accused posed a “clear and present danger” to society if they were released.
However, the court did not apply the above discussion to the present case because it concluded that section 18 was not made because none of the allegations came within the definition of a terrorist act under section 15 because “prime 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”.
Abuse Of Preventive Law
While considering Gul’s petition against preventive detention, the High Court found he was not given the whole records and documents to make an effective representation against his detention, and there was no specific allegation that showed how his activities could be prejudicial to the security of the State.
Noting that he was a journalist and it was his duty to report on happenings in his area, including operations of the security forces, the court said, “Such a tendency on the part of the detaining authority to detain critics of the policies of commissions/omissions of the government machinery, as in the case of the present detenu, a professional media person, in ones considered opinion is an abuse of the preventive law.”
“The grounds of detention nowhere suggest/reveal that the detenu had, at any point of time, filed/uploaded any false story/reporting based not on true facts. It is nowhere Stated as to how the detenu had disrupted the public order, creating any alleged enmity, in as much as there is no specific instance in any of the allegations levelled against him to show that he had been working against the national interests, so as to be prejudicial to the security of the State,” the court said.
“While going through the records, the court finds an observation of the detaining authority that the detenu had been a negative critic towards the policies of the government of the union territory of Jammu & Kashmir and that his tweets used to provoke the people against the government. This cannot be said to be a ground relied upon that a true and factual media report can provoke people against the working of the government that too without any specific instance as to how his tweets had caused any problem, much less a public order problem with the government. In the ground for detention, it has also been referred that the uploading the news items by the detenu, as a journalist, had created enmity and acrimony against government machinery, however, there is no specific instance as to which of the posts/write-ups are there as being so and on what date.”
(Betwa Sharma is managing editor of Article 14.)
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