In a pivotal legal move, journalist Fahad Shah, editor of The Kashmir Walla, was granted bail by the Jammu Kashmir High Court, a decision accompanied by severe criticism directed at the government’s revival of a 2011 case against him despite two previous bail grants.
Shah, in detention since February 2022, faced accusations from the government related to an article published in 2011 titled “The shackles of slavery will break,” allegedly glorifying militancy.
The court’s bail order emphasized the absence of substantial evidence linking Shah’s writings to acts of militancy over the past 11 years, stating no record proving the article’s provocation towards militancy existed.
Expressing concern over the government’s actions, the court highlighted the sequence of Shah’s custody shifts and the case’s revival post his bail from separate courts.
The judges raised concerns about the government’s actions, pointing out that the case against Shah was brought back after he had secured bail twice from different courts.
They highlighted a sequence of events: Shah was initially arrested in connection with FIR No. 19/2022 by Pulwama police, granted bail by the TADA/POTA Court at Srinagar, but then transferred to Shopian police custody under FIR No. 6/2021, where he was again granted bail by the Court of the Munsiff, Shopian.
Despite these bail grants, Shah’s custody was moved to Safa Kadal police station for another case, read the order.
Before the Srinagar court could decide on his bail application, Shah was put under preventive detention as per the Jammu and Kashmir Public Safety Act, 1978.
It was under these circumstances that the case against Shah was resurrected by the Respondent through the registration of the mentioned FIR, the court observed.
The court order also underscored Shah’s rights to freedom of speech and expression, stating a lack of substantial evidence supporting the government’s accusations.
While the court dismissed serious charges like terror conspiracy and waging war against the country, it upheld Shah’s trial under specific sections of the Unlawful Activities Prevention Act (UAPA) and the Foreign Contribution (Regulation) Act.
Rejecting the government’s argument that the article constituted a “terrorist act,” the court cautioned that such a proposition would violate constitutional rights.
Addressing the arresting agency’s authority under the UAPA, the court stressed the necessity of justifying arrests based on a “clear and present danger,” emphasizing that prima facie evidence alone is insufficient without valid arrest justifications.
While granting bail, the court maintained charges under the UAPA and other acts, suggesting a prima facie case’s existence.
Shah was arrested on February 4, 2022, by the Pulwama Police for posting allegedly anti-national content on social media and booked under the Unlawful Activities (Prevention) Act, however, after 22 days, he was granted bail by a National Investigation Agency court.
Fahad faced a series of arrests beginning on February 4, 2022, when Pulwama Police apprehended him for allegedly posting anti-national content on social media, invoking the Unlawful Activities (Prevention) Act. After 22 days, a National Investigation Agency court granted him bail.
Shortly after, on February 26, 2022, Shah was arrested by Shopian Police on separate charges related to inciting riots.
He obtained bail on March 5, 2022, but was rearrested for a different case involving various IPC sections such as rioting, attempted murder, abetment, printing or engraving defamatory matter, and public mischief.
In March 2023, he faced another UAPA charge after the State Investigation Agency filed a charge-sheet against him and a scholar associated with the article penned 11 years ago.
He was booked under the Public Safety Act and later shifted to Jammu’s Kot Balwal jail.