The Jammu and Kashmir High Court has said that a case against journalist Fahad Shah in connection with a “seditious” article on his now-defunct news website The Kashmir Walla, was dug out by the authorities after 11 years.
“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,” a bench comprising Justices Atul Sreedharan and Mohan Lal said while granting bail to Shah on November 17.
However, Shah is yet to be released. His lawyers are in the process of completing legal formalities.
An order of the verdict, which was made available on Monday, said that an investigating agency has to justify the arrest of an accused under the Unlawful Activities Prevention Act (UAPA) on the anvil of “clear and present danger” to the society when opposing the person’s bail.
“In order to assess whether the accused is a clear and present danger, there can be no rule of thumb and it must be seen in the backdrop of the specific facts and circumstances of each case,” the order said.
The article, titled “The shackles of slavery will break”, was written by academician Abdul Aala Fazili and published on The Kashmir Walla website in 2011.
The State Investigation Agency of Jammu and Kashmir claimed it was a case of “narrative terrorism” and the article “intended to create unrest, and aid and abet the gullible youth to take the path of violence”.
However, the High Court judges stated that although, upon initial examination, the opinion piece calls for the secession of Jammu and Kashmir, it does not incite violence or promote an armed insurrection against the State.
The court quashed charges against Shah under UAPA Section 18 (abetting the commission of, a terrorist act or any act preparatory to the commission of a terrorist act), Indian Penal Code Sections 121 (waging war) and 153-B (promoting enmity between different groups).
However, Shah will continue to face trial under Section 13 (incites unlawful activity) of the anti-terror law and Sections 35 and 39 of the Foreign Contribution Regulation Act.
“There is sufficient material to take the prima facie view that the appellant had received remittances from overseas without intimating the authorities about it,” the judges said.
Shah was the editor-in-chief of The Kashmir Walla, when he was first arrested on February 4 last year by the Pulwama Police for posting allegedly anti-national content on social media and booked under the Unlawful Activities (Prevention) Act.
He was granted bail after 22 days by a National Investigation Agency (NIA) court.
However, shortly after securing bail, Shah was arrested again on February 26 by the Shopian Police in connection with inciting riots. Although he obtained bail on March 5, 2022, he was promptly arrested in a third case.
Shah faced charges under Indian Penal Code sections related to rioting, attempted murder, abetment, printing or engraving defamatory material, and public mischief.
He had been charged under Indian Penal Code sections that provide punishment for rioting, attempt to murder, abetment, printing or engraving defamatory matter and public mischief.
On March 11 last year, Shah was again charged under the UAPA after the State Investigation Agency filed a chargesheet against him and Fazili, who had also been arrested.