The prosecution alleged that the 11-year-old ‘offending’ article was part of an ongoing operation to build and propagate a secessionist narrative in Jammu and Kashmir.
At a time when cases are filed and writers and journalists are detained for their writings, the Jammu and Kashmir and Ladakh High Court has dealt with one such Unlawful Activities (Prevention) Act (UAPA) case where an editor of a news portal was arrested for publishing an article some 11 years ago. The court dealt with the arrest of the journalist, the article, and UAPA in detail in its order.
“Source information” led the police to the “discovery of an article titled ‘The shackles of slavery will break’ on April 4, 2022, published on a webpage of www.thekashmirwalla.com in 2011, according to the prosecution.
The article is part of an ongoing operation to build and propagate the false narrative that is essential to “sustain the secessionist-cum terrorist campaign and take the same to its logical conclusion which is the breakup of the Indian Union and the secession of Jammu and Kashmir from India and its consequent accession to Pakistan”, according to the prosecution.
Senior Additional Advocate Generals Monika Kohli and Mohsin Qadri also alleged that Fahad Shah, Editor of Kashmir Walla selected “anti-India elements within the media several of whom are on the payroll of the ISI and formed digital platforms which are inexpensive and have a wide reach, and are working to construct a false and distorted account of the events in Kashmir and demonising the Government of India”.
The prosecution told the court that following the “recovery” of the article, an FIR was registered at Police Station JIC Jammu SIA on March 5, 2022, under section 13/18 of the Unlawful Activities (Prevention) Act, 1967 and under sections 120-B, 121, 123, 153-B of the Indian Penal Code (IPC).
The offending article was allegedly uploaded by Shah on his website on November 6, 2011, according to the prosecution. The FIR in the case was registered on March 5, 2022, and Shah was arrested on May 20, 2022.
Senior AAGs told the court that Shah has been arrested for an offence which was allegedly committed by him 11 years ago and his role has been limited to uploading the offending article on his domain but “his intention and thought process was extremely insidious which he shared in common with the secessionists, whose cause he espoused”. They also said during the investigation it was found by the police that Shah had removed the article from his domain to destroy evidence and the police, with the assistance of information technology experts, recovered the article as the website was registered July 9, 2010, with www.godaddy.com, one of the biggest domain name registrars.
The government lawyers argued at great length on different days on the issue. The court records summarised their arguments as: That the scope of interference by the High Court is limited as charges have already been framed by the trial court, that Article 21 of the Constitution has no application in this case, that the article published by the Shah and his unpublished poems disclose his “fissiparous mental” state, that the appellant editor conspired with the writer by publishing the offending article on his domain, that the appellant editor shared the same mental state of the writer and is thus guilty of conspiring to commit the offences as charged.
“In other words, the argument seeks to impress upon this Court that it is prohibited from carrying out a roving enquiry into the merits of the prosecution’s case,” said the prosecution.
The AAGs argued that Shah and the writer of the article, who was described as “agent provocateur”, created a narrative to incite the youth of Jammu and Kashmir to adopt violent means of protest to secede from India and accede to Pakistan and the offending article was written with that intention in which Shah was a willing collaborator.
Shah was accused of being a willing collaborator who hosted the “offending article” on his domain www.thekashmirwalla.com and later deleted the domain itself to evade detection.
The AAGs also placed before the High Court a large compilation of other articles which were webpages on The Kashmir Walla for demonstrating that the “offending article” was not a one-off instance by Shah but that he was a repeat offender who in the past had hosted several articles for inciting the local populace. One such article is ‘Ansar Ghazwat-ul-Hind: Kashmir‟s loneliest militant group’s perpetual fights’.
The Court said: “Having read the offending article, this Court prima facie finds that the same calls for the secession of Jammu and Kashmir from India. There is no reference in the article for its accession with Pakistan. It accuses India and the Indian government of genocide against Kashmiris and that they would one day secure freedom. It must however be stated here that there is no call to arms by the author. There is no incitement to an armed insurrection against the state. There is no incitement to violence of any kind much less acts of terrorism or of undermining the authority of the State with acts of violence.”
About the subsequent articles, the Court described them as reportage of incidents taking place in the valley. “Interestingly, the article has been written by one Yashraj Sharma who has not been made an accused and is instead a witness for the prosecution. None of the articles either espouse violence against the State or the government agencies but they do report instances of violence and the opinion of others which is in the quotations,” said the court.
Then senior AAGs placed before the court a compilation of the unpublished poems allegedly written by Shah. They said, “They 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 editor 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.”
The AAGs also said Shah had received Rs. 10,59,163.00 in his account with the HDFC Bank from a non-governmental organisation named Reporters Sans Frontiers in three instalments in the year 2020-21.
The Court said it is relevant to mention here that the trial court has not charged Shah under section 17 of the UAPA which provides a punishment for terror funding and instead has charged him under the relevant provisions of the FCRA. “Therefore, the apprehension sounded by the State that the funds received by the appellant (Shah) which includes overseas remittances could have been used for terror funding, is summarily rejected,” the Court said.
Senior Advocate PN Raina appeared on behalf of the Shah and argued that the alleged “offence of publishing article” was committed in 2011 and that the same was allegedly unearthed mysteriously in 2022. He also said The Kashmir Walla was a victim of a DDOS attack (Distributed Denial of Service) in 2020 and the domain had to be revamped and redesigned. In October 2021, the domain was redesigned but, in the process, data and email before 2021 were erased.
Raina also placed the interrogation file of the NIA under the sub-head of “Views regards Kashmir problem/General view” and said the police have recorded that Shah is a person with a moderate and liberal mindset and has always written about Kashmir policies and local political parties and thought that Kashmir needs to be developed rather than becoming a free state.
“It cannot be presumed reasonably that the instances of stone pelting that may have taken place in the year 2022 were on account of the instigation of the offending article that was uploaded in the year 2011,” argued Raina.
The government advocates cited the Supreme Court judgment in Zahoor Ahmed Shah Watali’s case which restricts the scope for grant of bail in a case where the offence was under chapter IV or VI of the UAPA.
However, the division bench of Jammu and Kashmir High Court comprising Justice Atul Sreedharan and Justice Mohan Lal in their judgment dealt with the case explaining point by point why the UAPA case is now justified against the editor of Kashmir Walla based on the article.
Notwithstanding Zahoor Ahmed Shah Watali’s judgment, the bench said the Apex Court has widened the scope of judgment in KA Najeeb’s case where it held that the bar of the proviso to section 43D(5) would not stand in the way of a Constitutional Court to grant bail where any of the rights enshrined in Part III of the Constitution stood violated. The Apex Court has said: “It is thus clear to us that the presence of statutory restrictions like Section 43-D (5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail of the grounds of violation of Part III of the constitution.”
The High Court went further and said the power to arrest is an executive discretion vested with the police.
“There is no compulsion on the police to effect an arrest only because an FIR has been filed and a person named as an accused,” the court said.
The court cited Joginder Kumar’s case. Kumar, a young lawyer, was held by the police for five days. The Supreme Court came down heavily on the police for what it perceived as a “malicious exercise of executive discretion” in that case and held: “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person.
“It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect an arrest.
“A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Thus the Supreme Court held that an arrest has to be justifiable by the police, it must show adequate cause for depriving a fellow human of his right to personal liberty and has stated without exception, that the authority to arrest if exercised, there must be justification for the exercise of that authority where the police must satisfy the courts, if called upon, the need to arrest in a specific case. Arrest without justification is not merely a colourable exercise of executive discretion but it would also result in the violation of the right to life and personal liberty of the individual. An impetuous arrest can destroy the standing of a man in society and affect his family as well. He may come out unscathed after the trial, but the time he spent in incarceration would remain a festering wound on his psyche forever.”
Right to freedom of speech and expression
The court said the charge against Shah is basically associated with his right to freedom of speech and expression, which prima facie appears to have gone wrong.
“We are of the opinion that prima facie, offence u/s. 18 of the UAPA is not made out as the act of the appellant does not come within the definition of a terrorist act u/s. 15 of the UAPA as prima 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,” said the court.
The court further said, “As regards the offence u/s. 153-B IPC is concerned, the offending article does not attempt to bring about disaffection on the basis of caste or religion. Therefore, we opine that the offence u/s. 153-B is not made out of the material on record. As regards the offence u/s. 35 and 39 of the FCRA, there is sufficient material to take the prima facie view that the Appellant had received remittances from overseas without intimating the authorities about it and therefore, there is sufficient evidence for the Appellant to stand trial for the same.”
“The act was allegedly done eleven years back. From then till date, no evidence has been brought on record that the offending article was responsible for provoking persons to take to militancy. Not a single witness says this. In the other cases in which the appellant was arrested, he has been enlarged on bail in all of them,” said the court. With this, the court set Shah free.