UAPA, Bail Denial, and Constitutional Rights: A Case Analysis of Peerzada Shah Fahad's Appeal

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This article has been written by Shivanii Singh, 2nd year Student studying in South, Calcutta Law College, Calcutta University.

High Court of Jammu & Kashmir and Ladakh at Jammu

Union Territory of Jammu and Kashmir

Peerzada Shah Fahad

Equivalent Citation-CrlA(D) No. 42/2022 c/w CRM (M) No. 472/2023

Date of Judgement-17 November 2023

Case Number-CrlA(D) No. 42/2022 c/w CRM (M) No. 472/2023

Case Type-Criminal Appeal (CrlA(D))

Petitioner-Peerzada Shah Fahad.

Respondent-Union Territory of Jammu and Kashmir.

Bench/judge-Justice Mohan Lal & Justice Atul Sreedharan

Table of Contents

ABSTRACT

The case of Union Territory of Jammu and Kashmir v. Peerzada Shah Fahad deals with the application of the Unlawful Activities (Prevention) Act (UAPA) .They concern the relevant provisions of the UAPA, and in particular, the bail provisions under Section 43D(5) of UAPA, and the constitutional protection provided under Article 21 – which safeguards the right to life and personal liberty of the Appellant.

As noted, the analysis of the court merits the national security as well as the individual rights, and applies relevant case law in order to assess whether it has been justified to apply to deny the bail due to the stringent requirements set forth under the UAPA.

INTRODUCTION

This case particularly revolves around the interpretation of of the Unlawful Activities (Prevention) Act (UAPA) . It delves into the intersection between human rights,anti terrorist activities and creating balance between individual and perrsonal rights and a need to maintain national security. Peerzada Shah Fahad was arrested in 2022 for demanding to break India and seccession of jammu and kashmir from India. His article was published on the website www.thekashmirwalla.com over a decade ago. He was arrested in 2022 for promoting/igniting violence against India.The determination of this particular case sheds light on the manner in which the legal provisions under UAPA are construer and enforced by the various courts as well as the protections that are afforded to the accused persons facing serious allegations. This determination also addresses the larger legal and societal environment in which the actors operate with a particular emphasis on the region of Jammu and Kashmir where issues of secessionism and political violence, as well as national security, tend to overshadow the concern for the individuals’ rights.

FACTS

The appelant,Peerzada Shah Fahad was first arrrested by PS pulwama but granted bail by the TADA/POTA Court at Srinagar. Later he was was placed in preventive custody in light of the Jammu and Kashmir Public Safety Act, 1978 – as hereinafter called “PSA.” The article of . Peerzada Shah Fahad where he called for the breakup of indiia India and secession of jammu and kashmir from India. His article was published on the website www.thekashmirwalla.com over a decade ago in 2011.

It is alleged that he tried to tamper the evidence by removing the article. Several of his unpublished poems were also shown to the court which revealed the appellant’s separatist mindset. It was also revealed that that the appellant had received significant financial transactions into his HDFC bank account from the international NGO Reporters Sans Frontiers between 2020 and 2021. The funds have not been used for terrorism activities as it is not proved but there is a possibility of being used for such activities. The court did not charge him under the UAPA but under the Foreign Contribution (Regulation) Act (FCRA).

ISSUES

Does the Unlawful Activities (Prevention) Act, 1967, violate the right to life guaranteed under Article 21 of the Indian Constitution in that it requires denial of bail provision if there is a prima facie case?
The Term “Clear and Present Danger” does it find its place in courts granting or refusing bail applications by order of section 43 D(5) of UAPA in relation to determining whether or not the accused would pose danger to the public?

PETITIONER S ARGUMENTS

The petitioner argued that the article that was hosted in the website merely intended to criticize the Indian government and not to promote terrorism and did not incite vioelence
Write to publish articles criticising the government is freedom of speech and arresting him violates his right.
The petitioner further argued that the article was posted a decade ago. So arresting him of same after ten years raises questioned on the case.
The petitioner notes that other persons ,including Yashraj Sharma who prepared similar reports for the same platform has not been arrested. However is appearing for the prosecution. Consequently, this raises issues of fairness with regards to the fact that only the petitioner has been targeted.

RESPONDENT

In response, the Respondent contends that Appellant’s suggestion of the total absence of evidence as to the authorship and subsequent deletion of the article due DDOS attack is too feeble as it appears to be a defensive maneuver. The allegation of the article being promotional of violence is not mere conjecture because there is a trend in violent tendencies, more so, the rise in the youth population being recruited into terrorism makes a strong case for the article being connected to radicalization.
The Respondent goes on to reiterate on the stubbornness of the Appellant emphasizing several FIRs, arrests and active participation in several criminal offenses. Dmz UAPA claims that Appellants act in publication in question is in section 15(1)(a)(ii) as that publication harms reputation of India under section 2(h) of UAPA ‘incorporeal property’.
Further, the Respondent states that the outrageous claims made in the article against the Government of India were always meant to damage the image of the nation thus making it reasonable to bring UAPA charging against the defendant.

JUDGEMENT

The present case essentially revolves around the provisions of the UAPA Act concerning the aspects of conspiracy and terrorist-related matters. In this regard, section 18 of the UAPA makes provisions on conspiracy mainly stating that people who conspire to commit, attempt to commit, or associate or help in committing a terrorist act are liable to imprisonment for not less than five years and in some cases, even for life imprisonment and a fine. The section 15 explains, what is a ‘terrorist act’ and provides a means in which such acts can be achieved, including the use of, explosives, firearms, or other dangerous substances with an aim of endangering the security of India or causing damages.

It is the contention of the Prosecution that the Appellant is culpable under Sections 13 and 18 in regard of promotion of terrorist acts and incitement to violence. They further contend that such activities as bad-mouthing the country of India belong to these sections. On the other hand, the defense avers that when an act is classified as terrorism, it is only in cases where there are damages done to corporeal things that the classification can obtain as opposed to damage to intangible ones such as reputation which is protected by other forms of law.

In addition, the defense challenges the arbitrary nature of the Article 14 and 21 constitutional powers of arrest, arguing that there can be no reason to hold a defendant without bail except on good cause shown for detention. The decisions of the Supreme Court strongly support the view that breach of fundamental rights such as unlawful arrest or detention renders Section 43D(5) of the UAPA inapplicable.

CRITICAL ANALYSIS

The case centers on the application of the UAPA (Unlawful Activities (Prevention) Act) in relation to conspiracy and terrorist activities. Section 18 of the UAPA deals with conspiracy, indicating that individuals who conspire, attempt, or assist in carrying out a terrorist act may face a minimum of five years in prison, potentially extending to life imprisonment, along with a fine. Section 15 defines what constitutes a “terrorist act” and describes various methods of committing such acts, including the use of explosives, firearms, or other hazardous materials, with the intent to threaten India’s security or inflict harm.

The prosecution claims that the Appellant is guilty under Sections 13 and 18 for promoting terrorist acts and inciting violence. They argue that making negative statements about India could be interpreted as falling under these sections. Conversely, the defense argues that for an act to be classified as terrorism, it must result in physical damage to tangible property, rather than affecting intangible aspects like reputation, which are safeguarded by other legal protections.

Additionally, the defense questions the arbitrary exercise of arrest powers under Articles 14 and 21 of the Constitution, stressing that without a valid reason for detention, bail should be granted. The Supreme Court’s decisions reinforce the idea that a breach of fundamental rights, such as unlawful arrest or detention, makes the application of Section 43D(5) of the UAPA irrelevant

CONCLUSION

The present appeal arises out of the charges pressed against the Appellant under Sections 13, 15, and 18 of the Unlawful Activities (Prevention) Act (UAPA). The said charges include terrorism conspiracy, publication of material promoting violence, and criminal record. As per the prosecution, the Appellant perpetrated violence and civil disorder in Kashmir during the period 2020-2022, owing particularly to the monthly publication of the article in question in 2011 which constitutes a ‘terrorist act’ under Section 15 of UAPA. However, the Appellant is also noted to have a criminal background including previous FIRs and cases of slapping preventive detention.

REFERENCES