Notably, this bail follows the High Court’s earlier decision to quash his detention under the PSA, citing a lack of substantial evidence linking him to a threat to public order. The judge in the said bail order, Justice Wasim Sadiq Nagral, had observed that the detention order should be set aside since it not only had technical infirmities but also since the detaining authority did not apply its mind while issuing the order. It is essential to highlight here that the PSA allows the authorities to detain a person for a period up to two years.

Yet, the fight for Shah is not over. As confirmed by Shah’s lawyer to The Kashmiriyat, he continue to face trial under Section 18 of the UAPA. Section 18 of the UAPA says that ‘whoever conspires or attempts to commit, or advocates, abets, advises or [incites, directly or knowingly facilitates] the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.]’

In addition to this, he had also been charged for violating Sections 35 and 39 of the Foreign Contribution (Regulation) Act (FCRA) for allegedly receiving funds against the law, a charge that still remains as per a report of the Wire.

The case against Fahad Shah:

In February of 2022, Shah was arrested by the police in relation to an alleged “incorrect reporting” on his portal regarding an encounter in Pulwama wherein three militants, including a top commander, had been gunned down. Shah was arrested for publishing an article written by Kashmir University scholar Abdul Ala Fazili titled “The Shackles of Slavery Will Break” on November 2011.

The FIR (First Information Report) had been filed in the said case in April 2022. The police had accused him of “glorifying terrorist activities” on social media and causing “disaffection against the country”. He was further accused of disseminating anti-national content to unspecified number of “social media users” and creating fear among the public. Ironically, there was not any explanation included in the charge sheet as to why it was registered after a decade.

Related:

14 months on, Kashmiri journalist, Fahad Shah’s detention under PSA quashed

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Kashmir: Journalist Fahad Shah arrested for FB post on Pulwama encounter

The post Jammu & Kashmir HC: Fahad Shah granted bail after spending 21 months in jail appeared first on SabrangIndia.

“The situation is still very worrying in Kashmir. Reporters are often harassed by police and paramilitaries and must cope with utterly Orwellian content regulations, and where media outlets are liable to be closed.”
CNN’s Mukhtar Ahmad, Reporters Without Borders

Fahad Shah, a prominent Kashmiri journalist detained on draconian charges under the Unlawful Activities (Prevention) Act (UAPA), completed 500 days in prison on June 18. Shah, the founder-editor of ‘The Kashmir Walla’, was arrested by Pulwama police on February 4 last year under the colonial UAPA law for allegedly uploading “anti-national” content on social media. He was afterwards detained five times over the course of four months, suffering though a Kafkaesque experience where he was subsequently arrested after every bail. 

In the 17 months since his incarceration under many charges, jugging around in different jails, Shah has obtained three rounds of bail, including two in UAPA cases! An Order under the Public Safety Act (PSA) against him has been quashed! Yet he remains imprisoned in connection with a case stemming from an opinion piece published in Shah’s publication in the year 2011. 

His detention has been described as the “final nail in the coffin of independent journalism in Kashmir.” The arrest of Shah sent waves of shock through the already shattered and targeted Kashmiri journalism community, with many going into hiding or leaving the field entirely. Furthermore, the application of such harsh draconian laws by the police, blurring the line between independent reporting and “propagating stories that are contrary to the interests and security of the nation,” were another grave cause of concern. 

Misuse of law- charges filed, bails granted

Bail under draconian laws: On February 4, 2022, Shah was arrested by the Pulwama police under sedition and anti-terror law, after ‘The Kashmir Walla’ had reported the events of a gunfight between the government forces and militants in south Kashmir. He was granted bail by the National Investigative Agency (NIA) court in Srinagar on February 26, 2022. 

However, the Shopian police promptly detained him again in a case that was filed in January 2021 against his portal’s reporting. Shah was again released on bail on March 5, 2022, by a Shopian court magistrate, but Srinagar police later detained him again in connection with reporting for his news portal in July 2020.  On March 14, 2022, Shah was then detained under the PSA and lodged in the Kupwara Jail.

The PSA order quashed: In April 2023, the Jammu and Kashmir High Court overturned the PSA order against Shah, calling the imprisonment “illegal” and the “non-application of mind” on behalf of detaining authorities. 

Terming the journalist’s imprisonment to be “illegal” and the “non-application of mind” on behalf of detaining authorities, the court had said: A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the “maintenance of public order”. In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact.

A single bench of the Jammu and Kashmir High Court, led by Justice Wasim Sadiq Narwal, had noted that the authorities “did not carefully evaluate and apply their thoughts while passing the detention order”. The bench has said that the apprehension of an adverse impact to public order “is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detainee was released on bail on January 8, 2021 and detained with effect from June 26, 2021”. 

The court decided that Shah was the target of “grave” charges. “However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding,” the order read. “The powers of preventive detention are exceptional and even draconian.” 

Detained for his opinion piece: Shah was being held at Kupwara Jail in north Kashmir under the PSA when the State Investigation Agency (SIA) arrested him on May 20, 2022, for questioning in a case. 

Shah’s custody was taken over from the Kupwara jail in order to investigate the SIA’s FIR number 01/2022, which was lodged at the Joint Interrogation Centre in Jammu, against an opinion piece written by Abdul Aala Fazili, a scholar from Kashmiri University, which was published 11 years ago in The Kashmir Walla and titled as “The Shackles of Slavery Will Break”. However, the agency issued a chargesheet in the case in which Shah and a Fazili are still imprisoned in Jammu’s Kot Bhalwal jail ten months after the arrest.

Fahad Shah not the lone Kashmiri in jail, remember Khurram Parvez?

In addition to Shah, Kashmiri human rights defender Khurram Parvez has also been languishing in jail since almost 1.5 years, arrested on November 22,  2021 under the draconian anti-terrorism legislation, and is currently detained in Rohini Jail, Delhi. Parvez is a human rights defender that has worked tirelessly to document human rights violations in Jammu and Kashmir for the past 20 years. He is the Coordinator of the Jammu and Kashmir Coalition of Civil Society (JKCCS) and the Association of Parents of Disappeared Persons (APDP), and the Chairperson of the Asian Federation Against Involuntary Disappearances (AFAD). 

Parvez was unlawfully, unjustly and arbitrarily detained by NIA officers after a 14-hour raid on his home and the JKCCS office in Srinagar, during which his electronic devices and several documents were confiscated. Since then, Parvez has been prosecuted on a slew of fabricated allegations relating to criminal conspiracy and terrorism, and his fundamental rights to due process and a fair trial have been repeatedly violated. In addition to the UAPA allegations filed against Parvez, the NIA filed another case against him and journalist Irfan Mehraj in October 2020, explicitly targeting JKCCS and anyone involved with the group.

In an opinion adopted on March 28 2023 and released on June 5 2023, the UN Working Group on Arbitrary Detention (WGAD) stated that the detention of activist Parvez was “arbitrary”. It called upon the Indian authorities to immediately release him and to provide him with an “enforceable right to compensation and other reparations.”

“The UN ruling on Khurram Parvez’s case authoritatively confirms that his detention is an act of reprisal for his human rights work, and an attempt to silence him and Kashmiri civil society as a whole. The Indian authorities must implement the UN’s recommendations and immediately release Khurram,” said Alice Mogwe, International Federation of Human Rights (FIDH) President, as reported by the civicus.org.

It is essential to note that the WGAD is mandated by the UN Human Rights Council to investigate alleged cases of arbitrary detention. The WGAD considers individual complaints and adopts opinions on whether the detention of a particular individual is considered to be arbitrary. This WGAD opinion was issued in response to a complaint filed jointly by FIDH, CIVICUS, FORUM-ASIA and the World Organisation Against Torture (OMCT) to the UN body on behalf of Parvez on November 22, 2022.

“The arbitrary and unjust detention of Khurram Parvez is not an isolated incident but the result of India’s relentless attacks on those who expose the Bharatiya Janata Party-led government’s discriminatory and abusive policies. India must reverse its politics of silencing dissent and guarantee the right to defend human rights in the country”, said Gerald Staberock, OMCT Secretary General, as reported by the civicus.org.

Additionally, the WGAD expressed serious concern about “the chilling effects” of Mr. Parvez’s arrest and prolonged detention on civil society, human rights defenders and journalists in India. Furthermore, the WGAD found that Parvez’s deprivation of liberty is in contravention of Articles 2, 7, 9, 11, 19 and 20 of the Universal Declaration of Human Rights and 2, 9, 14, 15, 19, 22, and 26 of the International Covenant on Civil and Political Rights.

The WGAD also determined that the authorities failed to establish a legal basis for Parvez’s detention (Category I); that his detention stemmed from his “legitimate exercise of freedom of opinion, expression and association” (Category II); that the “violations of Mr. Parvez’s right to a fair trial are of such gravity as to give his detention an arbitrary character” (Category III); and that he was deprived of his liberty on “discriminatory grounds, owing to his status as a human rights defender and on the basis of his political or other opinion” (Category V).

FIDH, CIVICUS, FORUM-ASIA and OMCT welcomed the WGAD’s opinion and reiterated their calls for the immediate and unconditional release of Khurram Parvez and all other human rights defenders currently in prison in India, and for all charges to be dropped.

Conclusion

Activists, writers, students, academics, and journalists have reported an increase in intimidation in recent years, as well as attempts to silence any critics of the current government’s decisions on Kashmir, the deployment of the army under the Armed Forces (Special Powers) Act (AFSPA), and the repeal of Article 370. 

Sedition charges, legislation dating back to the British colonial era, have been on the rise. The application of these harsh and severe rules has grown so lax that hundreds of people, including poets, political organisers, activists, and human rights advocates, have been imprisoned under an antiterrorism statute, the UAPA and the PSA. 

Kashmiri journalists have long been caught between deadly militants deploying arms and terror tactics and the repressive Indian government, which has tried to maintain a tight control this region of Kashmir. 

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The Jammu and Kashmir High Court has quashed the detention of journalist Peerzada Fahad Shah, the editor-in-chief-cum-director of digital news portal ‘Kashmir Walla’. Justice Wasim Sadiq Nagral observed that the detention order should be set aside since it not only had technical infirmities but also since the detaining authority did not apply its mind while issuing the order. Peerzada was arrested for publishing an article written by Kashmir University scholar Abdul Ala Fazili titled “The Shackles of Slavery Will Break” on April 4 2021.

Background of the case

Peerzada was placed under preventive detention under the Jammu and Kashmir Public Safety Act by the District Magistrate vide order dated March 11, 2022.

It was submitted on behalf of Peerzada that he is a reputed journalist having earned a good name and fame on international level in the field of honest and fair journalism while also being a peace loving citizen. It was contended that the allegations against him are baseless and vague and without any iota of truth to them. Peerzada was arrested on February 4, 2022 by Pulwama Police and booked him under Section 13 of UAPA [whoever advocates, abets, advises or incites the commission of, any unlawful activity], Section 124A [sedition] and Section 505 [Statements conducing to public mischief] IPC. In this case, Peerzada was granted bail and and when the order of the Court was served upon the police concern, they did not release him and shifted him to the Police Station Imam Sahib Shopian where on the same set of allegations, another FIR was registered. Once again he was granted bail and once again shifted to another Police station namely, Safakadal, Srinagar where one more FIR on the same set of allegations was registered and then a detention order under PSA was passed against him.

The Government Advocate, Sajjad Ashraf submitted that Peerzada was detained validly and legally by virtue of detention order and all statutory requirements and Constitutional guarantees have been fulfilled and complied with. He further submitted that the grounds of detention give a clear picture and the activities of the detenu were highly prejudicial to the maintenance of public order and respondents had no option but to detain him. It was also submitted that detenu was found involved in various anti-national nefarious activities.

Court’s observations

After analysing the record, the court found that relevant material or dossier was not provided to the detenu. Relying upon Supreme Court’s decision in Icchu Devi Choraria vs Union of India (1980) 4 SCC 531 , the court held that non-supply of dossier and the relevant material vitiates the detention order and cannot sustain the test of law and is liable to be quashed. In the said case, the apex court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference. The right of the detenu to be supplied, copies of such documents, statements and other materials flow directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention because unless the former right is available the latter cannot be meaningful. (Para 26)

Public order and state security not interchangeable

Another question raised by the court was “Whether the concepts of “public order” and “security of state” are distinct and separate”. The court cited G. M. Shah vs. State of J&K AIR 1980 SC 494, where Supreme Court had held that “law and order”, “Public order” and “security of the State” are distinct concepts, though not always separate and while every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the “security of the State. (Para 29)

The court held that the detaining authority “used both the expressions “Public Order” and “Security of the State” with a wavering mind and uncertainty and accordingly, the detention order gets vitiated and cannot sustain the test of law and is liable to be quashed.” (Para 33)

The court observed that the ground of detention in one place mentions that activities of the detenu leads to disturbance of public order and in concluding part it mentions that the detenu’s activities are prejudicial to security and sovereignty of the country. The court thus observed that the detaining authority did not carefully evaluate and apply their thoughts while passing the detention order.

Under section 8 of the PSA, “public order and Security and Sovereignty of the country are two distinct expressions and have different connotations and are demarcated on the basis of gravity and cannot be used simultaneously which clearly proves beyond any shadow of doubt that the detaining authority has not applied its mind while passing the order of detention” (Para 36).

The court held thus,

“From the perusal of grounds of detention, it is manifestly clear that the same are vague and bald assertions without any specific details with the result that the detenu was unable to file a meaningful and effective representations. Besides the specific averment of the detenu that he has not been provided copy of the dossier and other relevant material including copies of FIRs which have been referred and relied by the detaining authority while framing grounds of detention and passing the detention order against the detenu, has not been specifically denied by the respondents and is also borne from the record.” (Para 36)

The court also found the action of the respondents to be violative of Article 22(5) of the Constitution read with section 13(2) of PSA.

Article 22(5) reads as follows:
 

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order

Section 13(2) of PSA reads as follows
 

13. Grounds of order of detention to be disclosed to persons affected by the order-

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose

Procedural requirement not followed

Further, another procedural requirement was not fulfilled since the person who executed the detention order did not swear on affidavit. The court relied on Supreme Court judgement in Abdul latief Wahab Sheikh Vs. B. K. Jha, 1987 (2) SCC 22 where the court held that the procedural requirements are the only safeguards available to detenu, that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of detaining authority.

No compelling reason

The court further held thus,

“That no compelling reasons have been given or shown by the detaining authority while passing the impugned order against the detenu when he was already in custody in pursuance of FIR 70/2020 in which no bail has been granted. In absence of any compelling reasons, the order of detention cannot sustain the test of law.” (Para 39)

The court thus quashed the detention order of March 2022 and Peerzada was ordered to be released forthwith.

The complete judgement may be read here:

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The Kashmir Walla Editor-in-Chief Fahad Shah has been named in yet another First Information Report (FIR) on March 14, 2022 under the Jammu and Kashmir Public Safety Act (PSA), jeopardising his bail that was due for hearing the next day. This is the fourth FIR against him. Human rights defenders organisations like the Front Line Defenders fear these are attempts to curb Shah and his magazine’s reportage on political and human rights issues.

The PSA is a preventive detention law that allows for the detention of an individual for up to two years without trial to protect the “the security of the state or the maintenance of the public order”. Aside from this, Shah was charged and arrested for three FIRs including a case under the anti-terror law Unlawful Activities (Prevention) Act (UAPA) on February 4. Of these, he was granted bail in two cases including the UAPA case, and was due for a bail hearing on March 15 for the third.

However, with the registration of this new case, rights groups worry that the human rights defender is at risk of prolonged incarceration regardless of the court’s verdict. Shah is nowadays held at Kupwara district jail in Kashmir.

“The application of the PSA appears to aim at keeping him detained even when bail is granted in other cases filed against him. It [Front Line Defenders] urges relevant authorities in India to immediately and unconditionally release Fahad Shah and dismiss all charges filed against him,” said the organisation in a statement.

According to the Front Line Defenders, the PSA is a draconian legislation that violates fundamental civil and political liberties guaranteed under international human rights laws. The law punishes human rights defenders and journalists in Kashmir, violates their fair trial rights, and suppresses the voices of dissent which are crucial for the functioning of a democracy, it said.

Alleging that the PSA is especially used against journalists reporting on human rights violations, it cited the arrest of The Kashmir Walla trainee reporter Sajad Gul on January 6, 2021. He was charged under criminal conspiracy and other charges for posting a video of a family shouting slogans critical of government actions after their kin was killed in a gunfight in Srinagar. Like Shah, the reporter was charged under the PSA on January 16, a day after being granted bail. Then in July 2019, The Kashmiriyat Editor Qazi Shibli was charged under the same law for tweeting about the deployment of additional troops in Kashmir. He was imprisoned without trial for nine months.

About Fahad Shah

Shah founded The Kashmir Walla with an aim to report political and human rights issues. His work on culture, human rights, and identity politics has been published in several international publications. He won the Human Rights Press Award for his report on the February 2020 New Delhi February 2020 In 2021. Moreover, he has been nominated for the RSF Press Freedom Prize for Courage.

On February 4, Shah was arrested on charges including the UAPA and remanded to judicial custody at the Pulwama police station. He got bail on February 26 but was immediately arrested again in another case against him in Shopian. When he got the bail for this case on March 5, he was re-arrested in a case lodged at Safakadal police station in Srinagar. The PSA charges are the latest in this slew of FIRs.

The Srinagar Magistrate named the human rights defender an “anti-national” and justified his detention on the grounds that his “activities are prejudicial to the security and sovereignty of the country as [he] tweets controversial statements and provokes the general masses which cause mischief to disrupt the peace and tranquillity of the Kashmir valley.”

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The post Kashmir: Journalist Fahad Shah faces fourth FIR now under J&K PSA! appeared first on SabrangIndia.

Journalist Fahad Shah, editor of Srinagar-based magazine The Kashmir Walla was arrested on Friday evening, by Jammu Kashmir Police. According to media reports the police stated that, “It was reliably learnt by Pulwama Police that some Facebook users and portals have been uploading anti-national content including photographs, videos and posts with criminal intention to create fear among public and the content so uploaded can provoke the public to disturb law & order. It was also learnt that these Facebook users are uploading such posts which tantamount to glorifying the terrorist activities and causing dent to the image of law enforcing agencies besides causing ill-will & disaffection against the country. As the aforementioned activities by some of the Facebook users amounts to commission of cognizable offences by them, accordingly Pulwama Police while taking cognizance of the matter registered a case vide FIR No. 19/2022 under relevant sections of the law and initiated the investigation.”

Police then identified the journalist and stated, “one accused person identified as Fahad Shah was arrested. The accused is on police remand. The investigation into the matter is in progress. Journalists Fahad Shah and Majid Hyderi were reportedly called in for questioning on January 31, along with, in connection with a case registered following an encounter in Pulwama, the two were summoned for “incorrect reporting.” Fahad had shared on his Twitter page that he had returned home after that questioning on Tuesday.

I’m fine and home now. Thank you everyone for the concern.

— Fahad Shah (@pzfahad) February 1, 2022

Fahad Shah’s magazine The Kashmir Walla had published an article based on the version of the family of Inayat who was killed during the encounter in Pulwama on January 30 saying that he was innocent and not a militant. The police had denied this claim. According to a report in The Kashmiriyat portal, Fahad was summoned by the Police and left the office around 4 p.m. and did not come back. His colleagues told the media they “have not been formally told of the charges yet.

The Committee to Protect Journalists has stated that it reviewed the FIR against Shah that details allegations of Sedition, making statements causing public mischief.  “The arrest of Fahad Shah shows Jammu and Kashmir authorities’ utter disregard for press freedom and the fundamental right of journalists to report freely and safely,” said Steven Butler, CPJ’s Asia program coordinator, in Washington, D.C asking that, “Authorities must immediately release Shah, and all other journalists behind bars, and cease detaining and harassing journalists for simply doing their jobs.” Shah had earlier told CPJ in a phone interview that police had questioned him on February 1 about The Kashmir Walla’s coverage of the January 30, encounter which was published on its website and Facebook page.  Incidentally, Sajad Gul, a contributor to The Kashmir Walla, was arrested on January 5, and was granted bail on January 15, however he remains in detention, as he was again booked under Public Safety Act (PSA).  Fahad Shah’s portal had been following the case of their colleague closely.

“How many Fahad’s will you arrest?” asked former J&K Chief Minister  Mehbooba Mufti

Standing up for the truth is deemed anti national. Showing the mirror to a deeply intolerant & authoritarian government is also anti national. Fahad’s journalistic work speaks for itself & depicts the ground reality unpalatable to GOI. How many Fahad’s will you arrest? https://t.co/G22lN487zc

— Mehbooba Mufti (@MehboobaMufti) February 4, 2022

According to a recent  India Press Freedom Report 2021 by the Rights and Risks Analysis Group (RRAG) Jammu and Kashmir, Uttar Pradesh, Madhya Pradesh and Tripura topped the list of States and Union Territories where journalists and media houses were targeted in 2021, “highest number of journalists or media organisations targeted was in J&K (25), followed by Uttar Pradesh (23), Madhya Pradesh (16), Tripura (15), Delhi (8), Bihar (6), Assam (5), Haryana and Maharashtra (4 each), Goa and Manipur (3 each), Karnataka, Tamil Nadu and West Bengal (2 each), and Andhra Pradesh, Chhattisgarh and Kerala (1 each).” the report stated.

The group’s “India Press Freedom Report 2021” stated that at least six journalists were killed and 121 journalists/media houses including 108 journalists and 13 media houses/newspapers were targeted in India. According to its director Suhas Chakma, “the widespread attacks on the press freedom from Jammu and Kashmir (J&K) to Tripura are an indicator of continuing deterioration of civic space in the country. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 is an affirmation of the government’s intent to crack down on media freedom. The spotlight on attacks against media freedom during 2021 remained on Jammu and Kashmir. Out of the 17 journalists arrested in the country, J&K reported the highest cases of arrest/detention with five journalists.” Physical attacks on journalists by police were mainly reported from Jammu and Kashmir, stated the report in its spotlight on J&K

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