UAPA Charges Framed Against Fahad Shah: For How Long Will Scribes Be in Jail?

“The press must remain free if a country is to remain a democracy," CJI Chandrachud recently said at an event.

(This piece was first published on 4 April 2023 and is being re-published from The Quint's archives as Kashmiri journalist Fahad Shah completes 500 days in prison.)

When Fahad Shah first visited the Pulwama police station in early February last year, he told his mother that he might be asked to spend the night there. It has been over a year to that day and Shah is yet to return home. 

After being passed around like a parcel, from one jail to another, Shah who has been deluged with a multitude of FIRs and a detention order under J&K's Public Safety Act, is presently lodged in Kot Bhalwal, Jammu. 

Meanwhile, in March 2023, a special judge in Jammu also confirmed charges in a UAPA case against him.

The Prosecution's Contention

This case pertains to an article written by PhD scholar Aala Fazili which was published in The Kashmir Walla back in 2011. The prosecution's contention (as cited in the court order) is that:

"The article is highly provocative, seditious and intended to create unrest in J&K, to abet the gullible youth to take the path of violence and create communal unrest. The consequences of the publication of the article has led to increase in terrorism and unlawful activities across the J&K."

Further, the prosecution goes on to claim that: "During the course of investigation it is revealed that many youth took the arms against the State since 2011 after the publication of the article and the article so written was one of the reason to ignite feeling of jihad amongst gullible youth who were motivated to take part in the freedom struggle. (sic)" 

"Terrorist activities and subsequent killings have increased which is clearly part of ongoing operation to build and propagate the false narrative essential to sustain the secessionist cum terrorist campaign," it alleged.

Unless we have entirely misunderstood the argument, it seems that the prosecution has claimed that this one article in question written by Fazili and published in Shah's news-portal has contributed to a spike in violence in Kashmir, since 2011.

The claim however can be dubbed questionable, at best. 

This is because the history of violence in Kashmir dates back to the partition of India in 1947, taking on a more inflamed character in the late 80s (over two decades before Fazili allegedly wrote the piece and Shah published it).

How the state arrived at the conclusion that "many youth took the arms against the State since 2011 after the publication of the article" remains unclear.

Did the investigating agency analyse annual statistics? If yes, who collated this data and when?  Did the sleuths interact with each stakeholder and ask them how they were impacted by this article – Did you read it? Did it convince you to pick up arms?  No, why? Yes, why? Oh, you're a militant, is it because of that piece from 2011?  

In any case, Fazili has been charged under sections 13/18 UAPA and 121/153B/201 IPC; and Shah under 13/18 UAPA, 121/153B IPC and 35/39 of FCRA.

But Wait...

Section 13 of the UAPA deals with the punishment for 'unlawful activities'. This is a specific offence in the UAPA, separate from the terror offences which are also punished under the draconian law.

The definition of 'unlawful activity' in the UAPA covers any action taken by such individual or association which

• supports or is intended to support any claims about secession of a part of India

• disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India;

• causes or is intended to cause disaffection against India

However, Section 18 of the UAPA deals with punishment for conspiracy to commit a terrorist act (defined under Section 15).

Back when Shah and Fazili were first booked in this case (April, last year), Senior Advocate Rebecca John had told The Quint:

Speaking to The Quint, at the same time, Human Rights lawyer Mihir Desai had said that the inclusion of Section 18 without the corresponding Section 15 reference indicates it was included just so that the strict bail conditions under the UAPA could be invoked against Shah and Fazili.

“One needs to be conscious of the fact that the harsh bail conditions under UAPA only apply to terrorist related crimes," Desai explained, "and not to what are classified as unlawful activities which include propagation of cessation, etc.”

Thus, Desai said: “In this case, Section 18 seems to be added only to ensure that Aala Fazili and Fahad Shah are not let out on bail.”

And reports from the past one year do indicate that Fahad Shah is yet to get bail in the UAPA case against him.

So Did the Court Factor this Seeming Mismatch into Consideration?

If it did, we do not know of it. The only seeming reference to this 'legal mismatch' pertains to what Shah's counsel is recorded (in the order) to have said:

"Learned Senior Advocate PN Raina has contended vehemently before the court on behalf of A2 (Fahad Shah) that the ingredients of Section 18 UAPA 1967 are not made out against A2 as the object of section 18 is to commit terrorist act or any act preparatory to terrorist act and the object is not to commit unlawful activity. It is contended that the commission of offence under section 18 UAPA is made only if the ingredients of section 15 UAPA are made out. "

However, while having recorded this submission, the court does not really delve into it in its order. In fact, the court's stated reasons for confirming the said charges against Fahad Shah may be summarised as follows:

- Taking into consideration the allegations levelled by the police, the statements of witnesses, and other material relied upon by the investigating agency (including a copy of the contentious article) in their entirety, there is prima facie "sufficient material against the accused persons..."

- Taking Fahad Shah's statement along with his file into consideration, "it is evident" that Shah had received foreign funding to the tune of Rs 10,59,163.00 in his HDFC account "in the name of TKW Media Pvt Ltd from an international NGO named Reporters Sans Frontiers"

But even so, did the UAPA charge withstand legal scrutiny? A charge as serious as conspiracy to commit a terrorist act, that makes the grant of bail virtually impossible, and is punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

The court itself noted that “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 on the material placed on record and must be satisfied that the commission of offence by the accused was possible...” (Emphasis added). 

Previously in State of Karnataka vs. L. Muniswamy (1997), the apex court had pointed out:

“…the order framing a charge affects a person's liberty substantially and therefore it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial.”

So should the court, in its order, not have at least discussed the argument that because section 15 UAPA is not made out, Section 18 UAPA cannot either? Because by this logic, can any kind of unlawful activity not be drawn under the umbrella of terrorist conspiracy?

Bottom Line

Fahad Shah is just another head in a long line of Kashmiri scribes who have been incarcerated for their work, with no relief in sight. But do Shah, or even Fazili, deserve to be charged under such draconian provisions, essentially all for a piece they wrote twelve years ago? 

Only recently, Chief Justice of India DY Chandrachud had said in his speech at an award ceremony for journalists:

“The press must remain free if a country is to remain a democracy.”

The apex court has also in the past held that even if there are some instances of “wrong reporting”, journalists should be allowed freedom of expression. 

And in its order granting bail to TV News personality Arnab Goswami, in an abetment to suicide case, the Supreme Court had noted:

“India’s freedoms will rest safe as long as journalists can speak truth to power without being chilled by a threat of reprisal.”

So to what extent should the state be allowed, by our courts, to charge journalists and writers and researchers under stringent laws, only because it is a little unhappy with something that they wrote? 

The apex court had also noted in the Arnab Goswami case:

(This article has been reposted from The Quint's archives to mark World Press Freedom Day. It was originally published in April 2023.)