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JAMMU: In a significant ruling, the Jammu & Kashmir and Ladakh High Court has dismissed the argument put forth by the J&K Police that “damaging” India’s honour and dignity would amount to a terrorist act under the Unlawful Activities (Prevention) Act (UAPA).
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The decision came in response to the bail plea of journalist Fahad Shah, the editor of ‘The Kashmir Walla’, who was accused of publishing a seditious article.
A division bench, comprising Justice Atul Sreedharan and Justice Mohan Lal (retired last week), declared that accepting such an argument would essentially invert criminal law, penalising any critique of the government.
The judges emphasised that designating criticism of the central government as a terrorist act would directly clash with the fundamental right to freedom of speech and expression enshrined in Article 19 of the Constitution.
The court’s remarks were prompted by the prosecution’s attempt to justify the application of Section 15 of the UAPA to Fahad Shah’s case during the bail hearing. The prosecution argued that the published article besmirched India’s “incorporeal property” by making baseless allegations against the government.
However, the court rejected this argument, asserting that criminal law must be unambiguous and clear. It stated that for the State’s concept to be accepted, the legislature would need to explicitly make the expression of disparaging thoughts about India a specific offense, ensuring that individuals are aware of potential consequences.
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“The average Indian in the street who must suffer the consequences must be made well aware beforehand that his negative opinion of India, expressed in words or in writing or any other form giving permanence, could visit him with severe sanction,” the Court observed.
Addressing the definition of ‘property’ under Section 15(1)(a)(ii) of the UAPA, the court clarified that the property susceptible to damage, loss, or destruction must be material or corporeal, not incorporeal. It concluded that an incorporeal property, such as the honour and dignity of a nation, cannot be damaged or destroyed by the means mentioned in the statute.
“An incorporeal property would be impervious to damage and destruction by the use of means mentioned in s. 15(1)(a). Therefore, the argument put forth by the Ld. Sr. AAG is rejected,” it added.
In a virtual hearing, the bench, consisting of Justice Atul Sreedharan and Justice Mohan Lal, granted bail to Fah ad Shah, quashing charges under various sections, including Sections 18 of the UAPA and Sections 121 and 53-B of the Indian Penal Code (IPC). Senior Additional Advocate Generals Monika Kohli and Mohsin Qadri represented the State, while Senior Advocate PN Raina and Advocate JA Hamal represented the petitioner.
However, despite the bail, Fahad Shah will continue to face trial under Section 13 of the UAPA for allegedly abetting unlawful activities, along with Sections 35 and 39 of the Foreign Contribution (Regulation) Act, 2010.
Shah had been held under the UAPA following a case registered by the J&K State Investigation Agency in April 2022, related to the publication of an article in 2011 titled “The shackles of slavery will break,” written by Kashmir University scholar Abdul Aala Fazili, who has also been arrested. The charges were filed in the NIA Court at Jammu, and the case is set to proceed.
