The Supreme Court, on Tuesday, refused to revoke Fahad Shah’s bail but criticized the Jammu Kashmir and Ladakh High Court’s interpretation of the Unlawful Activities (Prevention) Act (UAPA), describing it as legally flawed.
Earlier, the High Court had granted bail to journalist Peerzada Shah Fahad, arguing that bail could be allowed if the defendant posed no “clear and present danger” to society. It further stated that tarnishing India’s global reputation did not amount to a terrorist act under Section 15 of the UAPA.
Following the judgement of the High Court, two Special Leave Petitions (SLPs) had been filed by the Union Territory of Jammu Kashmir, which challenged the judgment granting bail to journalist Peerzada Shah Fahad in a UAPA case.
The petitions stemmed from a common order issued by the High Court on November 17, 2023, where Fahad, the editor of The Kashmir Walla, was granted bail, and certain charges under the Unlawful Activities (Prevention) Act (UAPA) and the Indian Penal Code (IPC) were quashed.
A Supreme Court bench, led by Justices Bela Trivedi and Satish Chandra Sharma, remarked that the High Court’s ruling was per incuriam, meaning it was not legally sound and should not be treated as a precedent. However, the bench chose not to cancel Fahad Shah’s bail, according to Live Law.
The High Court had referenced the 1919 U.S. Supreme Court case Schenck v. United States, emphasizing that for UAPA arrests, there must be proof of a “clear and present danger.” It noted that while the U.S. Supreme Court acknowledged the importance of free speech, it also recognized that this freedom could be limited under specific circumstances.
The Court explained that for speech to be unprotected, it must pose a “clear and present danger” of causing substantive harm that Congress has the power to prevent.
In the buildup to and aftermath of the abrogation of Article 370, several Kashmiri journalists have faced detention, with many others being booked. Among them is Fahad Shah, the editor of Kashmir Walla.
Qazi Shibli, the editor of The Kashmiriyat, was detained twice, with the first instance occurring just days before the abrogation in 2019.
Sajad Gul, a trainee reporter, was booked under the Public Safety Act in 2022 and was released after nearly two years in custody.
Asif Sultan, who was detained for over five years, has also been released. However, Irfan Mehraj, a human rights activist and journalist, along with Majid Hyder, remains in jail.
Many other journalists have been booked under the Unlawful Activities (Prevention) Act (UAPA) and houses of many others raided after the abrogation of the Articles 370 and 35A. While a few have reported their experiences of harassment, many others continue to suffer in silence.