The Jammu and Kashmir High Court’s decision in journalist Fahad Shah’s case on November 17, 2023 calls into question the expansive understanding of terrorism under UAPA, rejecting its use for defamation. It emphasises judicial scrutiny in maintaining personal liberty, criticises Section 43-D(5), and advocates for legal changes and accountability, proposing a reasonable path ahead.
Highlights include:
- The Jammu and Kashmir High Court intervened in journalist Fahad Shah’s case on November 17, 2023, granted him bail and partially dismissing charges under UAPA and FCRA.
- Circumspection Request: The court emphasised the importance of exercising caution while applying anti-terror laws, especially given their impact on human liberty.
- Terrorism vs. Defamation: The court rejected the government’s position, saying that publishing an article damaging India’s reputation was an act of terrorism.
Key Difficulties:
- Vague Terrorism Offences: The ambiguous language of terrorist offences under UAPA permits arrests in contexts unrelated to real acts of violence, which contributes to abuse.
- Section 43-D(5) Dilemma: The rule prohibiting bail if charges are ‘prima facie accurate’ jeopardises personal liberty and raises questions about procedural fairness.
Key Phrases & Terms:
- UAPA: Unlawful Activities (Prevention) Act, India’s fundamental anti-terrorism act.
- Foreign Contribution (Regulation) Act, which governs foreign fundraising.
- Section 43-D(5): UAPA provision limiting bail based on the ‘prima facie true’ standard.
- Clear and Present Danger: A legal standard used to limit arrests based on an urgent threat.
Statements of importance:
- Judicial Emphasis: The decision emphasises the importance of using greater caution while executing anti-terror legislation, particularly those pertaining to personal liberty.
- Clarification on Defamation: Under UAPA, defamation of the country was judged not actionable, calling into question the broad definition of terrorism.
Critical Thinking:
- Accountability in the Courts: While hardly groundbreaking, the verdict emphasises the significance of responsibility in governmental acts, particularly when repressive laws are in place.
- Consideration for Compensation: The legal framework must handle compensation for illegal arrest and incarceration in order to ensure responsibility and justice.
Source: https://www.thehindu.com/opinion/lead/an-anti-terror-law-and-its-interference-with-liberty/article67631382.ece#:~:text=There%20are%20important%20legal%20reasons,online%20as%20a%20preparatory%20or