After Nearly 2 Years, J&K HC Grants Bail to Kashmiri Journalist Fahad Shah

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SRINAGAR: Almost close to two years after his arrest, the Jammu and Kashmir & Ladakh High Court has set the stage for the release of Kashmiri journalist Fahad Shah by granting him bail on Friday, November 17, 2023, in a case involving the publication of a “seditious” article in his now defunct digital magazine Kashmir wallah.

A local news gathering agency KNS in Srinagar said: The release is subject to Shah furnishing a personal bond and a surety of Rs 50,000 each. The virtual pronouncement of the bail order was made by Justice Atul Sreedharan and Justice Mohal Lal. Charges under Sections 18 of UAPA and Sections 121 and 53-B of the Indian Penal Code were quashed by the Bench, which respectively relate to terror conspiracy, waging war against the nation, and assertions prejudicial to national integrity.

While Shah is relieved of these charges, he will still face trial under Section 13 of the UAPA for allegedly abetting unlawful activities, and Sections 35 and 39 of the Foreign Contribution (Regulation) Act, 2010. These involve illegally receiving foreign funds and offenses by companies, respectively. Justice Wasim Sadiq Nargal had earlier quashed Shah’s detention under the Public Safety Act in April this year, citing procedural lapses. The court also accused the authorities of snatching Shah’s “constitutional and legal rights”.

The case was made on the basis of a 2011 article titled ‘The shackles of slavery will break,’ published in Shah’s magazine. A chargesheet was filed in October last year, and charges were framed in March this year. Shah had previously faced charges related to his coverage of an encounter in 2020 and an article in 2021, receiving bail in both instances.

Shah’s counsel and senior advocate P N Raina said that the court quashed the charges under Sections 18 (terror conspiracy) and 121 (waging war against the country) of the Unlawful Activities (Prevention) Act and 153-B (imputations, assertions prejudicial to national-integration) of the Indian Penal Code against Shah.

“He (Shah) will face trial under Section 13 (abetting unlawful activities) of the UAPA and Sections 35 (receiving foreign funds illegally) and 39 (offences by companies) under the Foreign Contribution (Regulation) Act, 2010,” Raina told The Wire.

The case was filed by J&K’s State Investigation Agency (SIA) at the CIJ police station in Jammu on April 4, 2022 (FIR No: 01/2022), around 11 years after Fazili’s piece appeared in the magazine. A chargesheet was filed in the case last year in March.

According to Amnesty International, the PSA is a “lawless law”, which has been used as a “revolving door” policy for suspects against whom the government in Jammu and Kashmir has little or no evidence to bring formal charges against them in the court of law.

Shah’s PSA dossier, accessed by The Wire, alleged that he was “filled with hatred against [the] Union of India”, and “promoted separatism”. It further alleged that his “activities seem to be prejudicial to the sovereignty, security, integrity, peace and tranquility of the UT of J&K and also the Union of India”.

The dossier also accused Shah of arranging “logistical support for anti-national activities” and “inciting violence thereby leading to disturbance in public order” while terming him as a “threat to public order.”

After the court quashed the PSA proceedings against him, Shah was arrested by J&K’s SIA in the case in which he has now been granted bail. He has been granted bail in three other criminal cases brought against him by J&K Police for the reporting done by his magazine on Kashmir.

Shah was charged for the first time in May 2020 over the coverage of a gun battle between militants and security forces in Srinagar. In the encounter’s aftermath, local residents had alleged that security forces took away their precious belongings, a charge denied by them.

The allegations and the denial were widely reported by J&K and Indian media.

Then on January 30, 2021, Shah was booked under Sections 153 (provocation with intent to cause riot) and 505 (statements conducive to public mischief) of the Indian Penal Code for a report in The Kashmir Walla, which alleged that the Army was “pressuring” the management of a private school in Shopian to organise the Republic Day celebrations.

The Army had denied the charge and proceeded to file a criminal case against Shah, who was later granted bail by a court. Shah has reportedly faced six cases of intimidation between June 2017 and January 2021.

The third case pertains to the The Kashmir Walla’s coverage of a gun battle in south Kashmir’s Pulwama district in which three militants, including a top commander, were gunned down last year. The Kashmir Walla was accused of “glorifying terrorist activities” and causing “disaffection against the country” by alleged “incorrect reporting”.

On August 19 this year, the Union Ministry of Electronics and Information Technology pulled down The Kashmir Walla website under the provisions of the Information and Technology Act, 2000, a controversial law which has been criticised by the free speech activists.

Press freedom in India has suffered relentless blows in recent years under the Narendra Modi government. According to the World Press Freedom Index’s latest report, India slipped to 161 out of 180 countries this year, losing 11 more spots as compared to the 2022 ranking.

According to Paris-based press freedom watchdog Reporters Without Borders, India has been using “charges of defamation, sedition, contempt of court and endangering national security … increasingly .. against journalists critical of the government, who are branded as ‘anti-national’.” The government has denied these charges, accusing the watchdog of “subverting the democratic freedoms all over the world”.