Why Bail Order Freeing Kashmiri Editor Goes Far But Not Far Enough

29 Nov 2023 11 min read  Share

The J&K High Court this month delivered a blow to the State’s case against Kashmiri journalist Fahad Shah, which said an article published in November 2011 on his portal, The Kashmir Walla, led to an increase in terrorism and unlawful activities. Supreme Court advocate Shahrukh Alam said it was of utmost importance that Justice Atul Sreedharan gave precedence to the right to life and liberty in granting bail even for terror charges but did not rebuke the state for bringing a seemingly made-up case in the first place and no one was held accountable for the two years Shah lost behind bars. In this interview, Alam discussed the things the court said and where it fell short, given how frequently the state was equating speech with violence and terror.

Kashmiri journalist Fahad Shah/ FAHAD SHAH, FACEBOOK

New Delhi: While granting bail to Kashmiri journalist Fahad Shah on 17 November, setting him free after close to two years in prison, Justice Atul Sreedharan of the High Court of Jammu & Kashmir and Ladakh foregrounded the right to life and liberty, even while considering a grave crime like the conspiracy to commit a terrorist act—section 18 of the Unlawful Activities Prevention Act, 1967 (UAPA), India’s anti-terror law.

In Shah’s case, the court found that section 18 was not applicable because nothing the State described qualified as terrorism under section 15 of the Act. In fact, the court said that if it were to accept the prosecution’s “novel” argument that damage to incorporeal property under the Act included “the honour, dignity and fair name of India”, then it “would literally turn criminal law on its head”. Furthermore, any criticism of the government could then be described as a terrorist act, and there would be a headlong collision with the fundamental right to freedom of speech and expression. 

Even while removing the section 18 charge in the case against Shah, Justice Sreedharan expounded on giving bail when fundamental rights are violated, even if the alleged crime is under the UAPA. In National Investigation Agency vs Zahoor Ahmad Shah Watali in 2019, the Supreme Court said the judge must accept the state’s case without examining its merits. Two years later, in Union of India vs KA Najeeb (2021), the Supreme Court gave some relief from its unyielding interpretation by allowing for bail when fundamental rights were violated. 

In Peerzada Shah Fahad vs UT of J&K Anr (2023), Justice Sreedharan laid down two tests: was the arrest justified and if the accused pose a clear and present danger if they were released? An 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.

Underlining the importance of  Justice Sreedharan’s order, Supreme Court advocate Shahrukh Alam said that instead of “bail here and a quash there”, this order laid down “doctrinaire jurisprudence” that judges could use at a time when the state was likening writing and having an opinion to a terrorist act and arresting journalists. 

Alam said whether it was the police chief in Jammu & Kashmir (who warned writers not to hide behind the right to freedom of speech a day after the order) or the solicitor general of India casually making the connection between a student activist protesting a citizenship law and a woman convicted in Rajiv Gandhi’s assassination case, the state was pushing the same argument of equating speech with violence. 

Alam said the court did not address this recent drift to curb dissent or demand accountability for bringing a seemingly made-up case that cost Shah close to two years of his life. 

Two days after Shah was granted bail, seven Kashmiri students were arrested and booked under the UAPA after they allegedly raised pro-Pakistan slogans following the cricket World Cup final on 19 December, leading to a face-off between Kashmiri and students from other states. 

“You see speech being appropriated as a terror offence across cases. To me, it is a continuum. It is discursive,” said Alam. “And that is why I’m not surprised by what the DGP is saying.”

What struck you about the bail order for Fahad Shah? 

The absurdity of the prosecution's case, which argues that India's name is an incorporeal property and any criticism is, therefore, an attack on this incorporeal property and, hence, a terrorist offence under section 15 UAPA. Justice Sreedharan, of course, rejects this argument and explains that the reference to attacks/damage to property is not just damage to any property.

The prosecution’s argument is not an argument. It is discursive. You can see the same argument across cases. You can see the same kind of absurdity in trying to push the meaning of what constitutes a terror offence. I see a connection between this argument and when the solicitor general (Tushar Mehta) says in Devangana (Kalita) and Asif Iqbal Tanha’s case when they (the state) were appealing the bail before the Supreme Court—he makes a loose statement—we have seen how such protests, speech may result in the assassination of prime ministers, equating Devangana with Nalini (of the Rajiv Gandhi assassination case), but also drawing a discursive connection between speech and violence. And you see that happening repeatedly. You see speech being appropriated as a terror offence across cases. To me, it is a continuum. It is discursive. And that is why I’m not surprised by what the DGP is saying. This is the state’s discourse. And no matter what the court says, they keep repeating it. Ad hominem, they keep repeating it. 

How do you see the DGP’s statement coming right after the two orders? 

I see that as a broader discourse. I see that happening across the board, in the Supreme Court and High Courts. I also saw that happening during the 370 hearing when the state came back and asked how can you hear this petitioner (Mohammad Akbar Lone) because he is a separatist. The Supreme Court asked him to submit an affidavit saying he is not a separatist as if that has any bearing on his right to access justice before the Supreme Court. But suddenly, speech or having certain views is equated with terror elements at a discursive level. 

Coming back to Justice Sreedharan’s argument 

I think Justice Sreedharan for the first time— because Najeeb (Union of India vs KA Najeeb 2021) doesn’t spell it out, but he has picked this from Najeeb and articulated it. I think it is beautiful that he has put constitutional rights before the provisions of the UAPA. To my mind, that has not been done so explicitly before. 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, which emanates from Article 21 rights and hasn't been articulated so explicitly before. The right to investigate, interrogate, and arrest is subservient to Article 21 rights. There has to be a real reason, which the constitutional court must review. 

Thus far, our entire bail jurisprudence hinges on whether there was an actual need to investigate, and if there was, then courts allow detention. Justice Sreedharan hasn’t gone that far. He hasn’t said that custodial interrogation is actually not a legal concept. It is basically an exercise in power that we have normalised and accepted, but at least he has brought in Article 21 and has said that it (bail) also has to be assessed in Article 21 terms. 

Could you explain this more? 

Our bail jurisprudence hinges on the justifiable need for custodial interrogation. I’m saying there is no such thing in legal jurisprudence because it is an exercise of power by the state—you detain someone. In custody, you force them into giving you information, which is not recognised as a legal practice in most jurisprudence. Detention can’t be the basis for your investigation. It has been derided very explicitly in many jurisdictions. But we don’t recognise that. We think it is okay to interrogate someone in custodial detention. Justice Sreedharan hasn’t gone that far, but at least he has brought in 21 and tried to balance it with 21, which has been done for the first time. 

Any more thoughts on the bail order? 

He reads section 15 and refuses to include the state's absurd suggestions. He asks what the terror act is and concludes that writing something is not a terror act. He talks about how criminal law must be particular, but then he allows for section 13 (punishment for unlawful activities under the UAPA) charges, which are as overboard and as vague—unlawful acts that can include anything at all. So, if he has found nothing wrong in his writing, why has he allowed for section 13? He hasn’t discussed section 13 at all. And for allowing charges to be framed under section 13, he has gone against his own logic, which talks about the need for specificity in criminal law. 

What about the order quashing the PSA against Sajad Gul (given by the chief justice of the High Court of Jammu & Kashmir and Ladakh, Justice N Kotiswar Singh, and Justice M A Chowdhary.)

He (the chief justice) has foregrounded freedom of speech, which is very good and well taken, and the procedural part that he was never served (with all the documents to make an effective representation). Justice Koteshwar Singh’s is a good judgement, but we’ve had judgments like that before. It wasn’t extraordinary, but I really liked Justice Sreedharan’s (order) because he brought forth 21 rights and said that we would assess this and judge this based on 21 rights. The foregrounding of a systemic problem is what I liked about it. 

Justice Sreedharan also finds nothing wrong with the article: he says there was no incitement, no calls to arms, no call to accession with Pakistan. But what if there was a call to accession with Pakistan? Does that make it a terror act? In many ways, isn't this an easy case to make a sound judgement? The bar is so low. 

I don’t know if this is an easy case. I don’t know if any case is easy because these cases shouldn’t be coming to court in the first place. And there should be some degree of pinning liability of officers and prosecutions that actually make up these cases. He (Shah) has spent two years in jail, so where is the accountability? 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. This is not a one-off thing. It is part of a systemic attack on the rule of law; in that sense, it is not easy to push back against. 

The DGP’s statement on the heels of the orders seems to take the wind out of them. 

If you look across arguments made by the prosecution, then what the DGP said is unsurprising. It seems now that we don’t go by judgments and laws laid down by the Constitutional courts. The prosecution’s discourse seems independent of that. There is settled law on, for example, clear and present danger. But none of these cases take that into account. There seem to be now parallel discourses—settled law by the constitutional courts and prosecutorial logic or state discourse. 

There is also very little said about the state demonising alternative media in the chargesheet, alleging that the subscription model is used to raise funds to work against the nation's interests. 

It is systemic. We have many easy cases, but that has not prevented both the prosecutorial logic and discourse from moving forward, leaping forward, nor has it allowed constitutional courts to give us doctrinaire jurisprudence. A bail here, a quash there, but nothing has come out that is doctrinaire. That is why I liked Justice Sreedharan’s order because there is some promise there for other judges to pick Article 21 to bypass 43 (d) (5). 

Still, there was a low threshold. 

Absolutely. It goes against settled law. The settled law in Balwant Singh (Balwant Singh and Anr versus State of Punjab), where the slogan was raj karega, Khalsa, Hinduon ko nikalo Punjab se (Khalistan will rule, remove Hindus from Punjab). And the court said that is what they are saying that is fine. That threshold has been laid out very carefully. Even if they were inciting and there was no immediate violence, the court said no one responded to it, so you can’t say there was a clear and present danger because no one responded to such foolish slogans. 

The law has been laid down, and we are ourselves diluting it for no rhyme or reason without any explanation. In Nalini’s case (Rajiv Gandhi assassination case), the Supreme Court has said it is not a terror act. She killed a prime minister. It is a personally and politically motivated act. It is not a terror act. To describe something as a terror act, even if it is very violent, you must cross a certain threshold. Now, the jurisprudence is inverted. There is no threshold to be crossed. In fact, the burden of proof shifts on the accused. You can call anything a terror act without showing cause. In the context of UAPA, POTA, TADA (anti-terror laws), it has been repeatedly said that if it is a crime contained within the IPC, you have to show why you are labelling it a terror act. We are not calling upon that jurisprudence. And the constitutional court is now responding on a case-to-case basis, but no jurisprudence is coming out. 

To sum up the significance of Justice Sreedharan’s order

Justice Sreedharan’s judgement foregrounds 21 and says even in emergencies, your 21 rights, and following from that, your 19 (1) (a) rights, 14 rights, are not diluted. Investigations, custodial interrogations, and detentions in the interest of public security and national security must constantly be assessed against your 21 rights. And he said that very explicitly, and to me, that is the significance of the judgement. 

(Betwa Sharma is the managing editor of Article 14.) 

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