SRINAGAR: Noted Kashmiri journalist Fahad Shah was set free from a Jammu jail after spending more than 658 days of detention after the Jammu and Kashmir High Court granted him bail with the observations that there was “not enough evidence” to try him for terrorism.
Thirty-four-year-old Fahad Shah was released from Kot Bhalwal Jail near Jammu, winter capital of J&K on Thursday after receipt of the court orders, passed on November 17, 2023, by the jail authorities. It took the jail authorities five days to complete legal process for his release.
Fahad Shah is the owner and editor of the independent news portal The Kashmir Walla, banned earlier this year by the Indian government for unspecified and undeclared reasons. No public statement has been made by the central government on imposition of ban on the news portal.
In its bail order last week, the High Court of Jammu & Kashmir and Ladakh said that the Special Investigation Agency (SIA), a local agency formed earlier this year, did not have enough evidence against Fahad Shah to prove charges under the Unlawful Activities Prevention Act (UAPA), a stringent terror law that allows the government to keep anyone under detention for up to two years without trial.
The UAPA has been criticized by several activists, journalistic bodies and human rights groups as draconian and mainly used by India’s BJP-government to target opposition politicians, human rights activists and dissidents.
Fahad Shah was accused of “glorifying terrorism” and “spreading fake news” for publishing a piece by Abdul Aala Fazili, a pharmacy student at the University of Kashmir, which reportedly talked about the Indian “occupation” and freedom for the region. Fazili, who was also arrested along with Shah, continues to suffer incarceration in jail.
The High Court said while the said opinion piece purportedly called for the secession of Kashmir, its publication “doesn’t incite violence or an armed insurrection against the State”. It quashed many charges against him, including “abetting terrorism, waging war against the country and promoting enmity” under the UAPA.
The High Court acknowledged that getting bail under the UAPA was difficult, but it could not be denied to Shah because he did not pose a “clear and present danger” to society, if released.
“It would mean that any criticism of the central government can be described as a terrorist act because the honour of India is its incorporeal property. Such a proposition would collide headlong with the fundamental right to freedom of speech and expression enshrined in Article 19 of the Indian Constitution,” the court said in its bail order.
Shah will continue to face trial under other sections of the UAPA and under the Foreign Contribution (Regulation) Act, which deals with receiving illegal funds, which include money collected through subscriptions on the web portal.
The bail was granted seven months after J&K High Court quashed Shah’s detention under the Public Safety Act in April this year, saying “the apprehension of an adverse impact to public order is a mere surmise of the detaining authority”.
Shah was arrested in February 2022 over a report carried on his news portal about an encounter in Pulwama area of South Kashmir.
Police accused him of “uploading anti-national content, including photographs, videos and posts with criminal intention to create fear among public”.
He was granted bail after 22 days by a special court designated for National Investigation Agency cases.
After few hours, Fahad Shah was arrested on February 26 in another case related to the alleged provocation of riots. On March 5, 2022, he got bail but was arrested again in yet another case for allegedly causing rioting, attempted murder, abetment, printing or engraving defamatory matter, and public mischief.
Less than a week later, he was charged under the UAPA after the SIA filed charges against him and Fazili. The agency accused them of “narrative terrorism” for the 2011 article published on The Kashmir Walla, which it called “highly provocative and seditious”.
Fahad Shah has managed to secure bail in three cases till date.
On August 20, the central government blocked online access to The Kashmir Walla and its social media accounts under the Information Act of 2000. The portal had more than a dozen journalists and freelancers as contributors, affecting their livelihood as well.
‘Journalists shocked over detention’
US-based Media watchdog, the Committee to Protect Journalists (CPJ), welcomed Fahad Shah’s release on bail and demanded that all charges against him must be dropped and the ban on his website revoked.
Journalists in Kashmir say they are working in an environment of fear due to a rising crackdown on free press.
“The strong judgement of the high court in favour of the detained journalist notwithstanding, Shah had to spend two years in jail. It shows how helpless [state] institutions have been rendered,” a 40-year-old journalist from the main city of Srinagar told Al Jazeera on condition of anonymity.
“The arrests like that of Shah have almost ended journalism in Kashmir. His arrest shook journalists and most of them stopped writing.”
Geeta Seshu, founder of the Free Speech Collective, an independent organisation that advocates for press freedom in India, told Al Jazeera that Shah’s “revolving door” arrests in multiple cases were a travesty.
“The cases were a clear attempt to silence the one independent voice in digital media when print media in Kashmir had all but collapsed.”
‘Kashmiri Journalist Sajjad Gul’s detention quashed’
A day after granting bail to Fahad Shah, The Jammu & Kashmir and Ladakh High Court quashed the detention of journalist Sajjad Gul under the Public Safety Act with the observation that there was no specific allegation against him to show that his activities could be ‘prejudicial to the security of the State’.
The J&K PSA empowers that authorities to detain an individual without trial for up to two years on grounds of national security and up to one year for maintenance of public order. Sajjad Gul was detained under PSA on January 16, 2022, a day after he was granted bail by a court in a criminal conspiracy case.
A division bench of J&K High Court comprising Chief Justice N Kotiswar Singh and Justice M A Chowdhary observed that the detention under PSA was based on ‘vague grounds’ and directed the authorities to release the Kashmir journalist. The court had passed the order on November 9 but was made public only on Saturday, November 18, 2023.
“…The detaining authority, before passing the order, has not applied its mind to draw subjective satisfaction to order prevention detention of the detenu by curtailing his liberty which is a valuable and cherishable right guaranteed under Article 21 of the Constitution of India,” the order said.
The judges noted that Gul had not been given the three First Information Reports (FIRs) registered against him, copies of the dossier, statements of witnesses in the cases and other documents.
“In absence of providing the whole of the documentary record, the detenue cannot be said to be able to make an effective and meaningful representation against his detention which was his statutory as well as constitutional right,” the division bench added.
The grounds of detention, the judges said, do not indicate that Sajjad Gul had ever uploaded any false story.
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