It is essential to note that though the current case had been lodged by Police Station Rainawari in the year 2019 and yet Sultan had been arrested by the police only this year in February, just days after he had been released from detention on orders of Jammu & Kashmir and Ladakh High Court in a preventive detention case.

Facts of the case:

As per the police report submitted in the current case, the allegations against the accused/ applicant were that on April 4, 2019, the accused along with other jail inmates in the Central Jail Srinagar had set ablaze few barracks, shouted anti national slogans and had pelted stones on jail employees due to which some officials sustained injuries. As per the FIR in the case, the applicant had been booked for allegedly indulging in the offense of rioting, unlawful assembly, attempted murder under provisions under Unlawful Activities Prevention Act.

The applicant had approached the court seeking his release on bail in the present case on the grounds that the police had arrested him without any reason or rhyme. It had also been alleged by the applicant that the he had been facing incarceration for last more than 5 years under various laws, and was undergoing detention under the Public Safety Act when the present offense had been alleged to have taken place. It is to be noted that Sultan was arrested in 2018 under various charges including harbouring terrorists. He was granted bail in April 2022 but was immediately booked under the Public Safety Act (PSA), a law that allows detention without trial. Only two days prior to his arrest in the present case, the journalist had been released by a jail in Uttar Pradesh in February, two months after Jammu & Kashmir and Ladakh High Court had quashed the PSA case citing procedural lapses. He was then re-arrested for his alleged involvement in the 2019 jail violence. 

Arguments raised by the applicant:

The main argument raised by Sultan’s counsel was that the accused was innocence and there was a dearth of evidence linking him to the alleged offenses. It was vehemently argued before the Court that Sultan was a peaceful citizen with no connection to the violent incident.

“It would also be expedient to brought before this court that the accused has no connection with the above-mentioned FIR as he was under detention and how could a person commit a crime when he is already going through the detention. (Sultan) is a peaceful citizen of union territory and the accused is peace loving, law abiding citizen having a high social status and a highly esteemed repute and honour in the locality society and in his neighbourhood; that no prima facie case is made out against the aforementioned accused for the commission of offences alleged in the FIR and he is not even remotely connected with the commission of offences alleged in the FIR or with the commission of offences as such, he is facing detention without any reason and justification” (Para 1)

In addition to this, Sultan’s counsel claimed that the whole premise of the case of the prosecution is based on the alleged shouting of anti-nation slogans and pelting of stones, during which the applicant was not present at the place of occurrence.

“Learned Counsel for the accused /applicant has argued that there is no direct evidence on record which could implicate the accused person/applicant with the commission of crime. He has argued that the whole case of prosecution is based upon alleged shouting of anti-national slogans and pelting of stones on the jail/police officials. He further argued that the case is of the year 2019 and the accused was not present at the place of occurrence. Lastly, it is requested that the accused person/applicant is in custody for the last approximately 72 days and therefore he should be granted bail in the interest of justice.” (Para 6)

Arguments raised by the prosecution:

The said plea for bail had been opposed by the prosecution, which had urged the court to not grant relief keeping in view the seriousness of the allegations raised against the applicant.

“That, there is credible and cogent evidence available at the strength of which it can be safely submitted that there are reasonable grounds to believe that the accused person is involved in the commission of above referred offence, as such grant of bail at this stage will cause impediment in the smooth conduct of investigation. That, the offences and activities in which the above-named accused person is involved being highly antinational. Lastly it is prayed that the bail application be rejected in the interests of justice, society and nation at large.” (Para 4) 

Observations of the Court:

1.  Factors to be considered while granting bail

Additional Sessions Judge Sandeep Gandotra in the order emphasised upon the necessity of the court to consider certain factors while dealing with a bail plea in a case where serious allegations have been raised. These factors are:

“(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant

(c) Prima facie satisfaction of the court in support of the charge

(d) Impact of such offences on larger public interest.” (Para 9)

Observing the same, the Court further highlighted that mere use of the UAPA provisions against an accused would not warrant rejection of bail in ignorance of other binding requirements.

“There can be no dispute at all that so far as the investigation into allegations of commission of offence under the Unlawful Activities (Prevention) Act, 1967 is concerned, that there is compelling state interest in tackling such serious crimes. However, mere use of this statutory provision would not ipso-facto warrant rejection of applications of bail ignoring the other binding requirements.” (Para 10)

In furtherance to this, the Court stated that as per the guidelines laid down and judgements delivered by the Supreme Court in petitions of bail, it has been established that the power to grant bail is not be exercised by the Sourt as if the punishment before trial is being imposed.

“The two most important considerations that would determine the granting or refusing the bail to the accused are the likelihood or otherwise of the accused absconding or attempting to tamper with the prosecution evidence. Undoubtedly, the other consideration shall also weigh for consideration of a bail matter.” (Para 11) 

2.  Charges levied against the applicant

In the order, the Court opined that the occurrence of the alleged offense took place more than 5 year ago. In addition to this, pursuant to the arrest of the applicant, a sufficient amount of time, approximately 2 ½ months (72 Days), had been provided to the investigating agency to conduct the custodial interrogation of the applicant.

3.  Conduct of the applicant

The Court had observed in its order that the prosecution had not brought to the notice of the court that the conduct of applicant in judicial custody has been such that the court should be wary of granting in bail. Additionally, the Court also highlighted that the applicant is a permanent resident of Jammu and Kashmir, decreasing his chances of fleeing.  With this, the Court held that further detention of the applicant in the custody shall not serve any purpose. 

Order of the Court, imposition of stringent bail conditions:

The Court noted that Sultan had not been booked under those Sections of UAPA for which he would have been required to meet the stringent conditions of bail. Based on the observations of the Court highlighted above, the Court ordered in favour of the granting bail to Sultan.

“Having regard to the facts and circumstances of the case, the nature of the allegations against the accused & the punishment prescribed for the same, the period of detention of the accused i.e. the accused has been in the custody from the last 72 days, the fact that the recovery has been made from the place of occurrence and sent to FSL and most of investigation has been completed, the interest of justice will be served in case the applicant is admitted to bail, at this stage.” (Para 13)

It is essential to note that the Court directed Sultan to furnish a bail bond of Rs.1,00,000/- each with one surety. As per the order of the court, certain bail conditions have also been imposed on Sultan which are stringent in nature in order to restrictions on Sultan’s communication methods and movements. These conditions include prohibition on using any secret/encrypted messaging apps or any proxy networks in order to remain anonymous and requiring permission from the court in case he wants to buy another mobile handset or a new SIM card in event of damage, loss, theft or upgrade. In addition to this, he has been directed to appear before the investigating officer as required, not tamper with evidence, and refrain from influencing witnesses.

The Court order also laid out detailed

“a) That the accused/applicant shall appear before the IO of the case as and when required;

1. b) The accused person/applicant shall not in any way misuse there liberty nor shall they get in touch with any of the witnesses or try to influence the course investigation.
2. c) That the accused person/applicant shall not temper with the evidence of the prosecution in any manner;
3. d) That the accused person/applicant shall not leave the territorial jurisdiction of this court without prior permission of the court.
4. e) That the accused person/applicant shall not change his residence during the period of bail, without informing this court;
5. f) That the accused person/applicant shall disclose/provide their mobile numbers issued in his name along with telecom network to Investigating Officer/ SHO of concerned police station;
6. g) That the accused person/applicant shall neither use any secret/encrypted messaging apps or any proxy network (viz VPNS) to remain anonymous and circumvent provisions of India Telegraph Act and Indian Wireless Act and orders/restrictions issued there under nor provide any type of telecommunication facility from his number or device to other person through hotspot, WiFi etc.
7. h) That, accused person/applicant shall will disclose the details of cell phone device to be used by him (IMEI number and make MI, Samsung, Oppo etc) to the investigating officer/ SHO of concerned police station;
8. i) The accused person/applicant shall not use any mobile number or device other than the ones disclosed to the Investigating Officer /SHO of concerned police station;
9. j) In case the accused person/applicant wants to buy another mobile handset or a new SIM Card in the event of damage, loss theft or to upgrade, he shall seek prior permission from this court and shall furnish the information to the IO of the case/ SHO of concerned police station; and
10. k) That the accused/applicant shall not commit any offence in the future”

The complete order can be read here:

Related:

Jammu & Kashmir HC: Being a critic of government no ground to detain a person, detaining authorities apply no mind

Jammu & Kashmir HC: Fahad Shah granted bail after spending 21 months in jail

Kashmir: Journalist Aasif Sultan jailed under PSA, after getting bail

The post Asif Sultan, Kashmiri Journalist, gets bail in yet another UAPA case! appeared first on SabrangIndia.

Courtesy: Kashmir Times

The post Bail For Kashmiri Journalists: What Does It Mean For Freedom Of Expression? 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. 

Related:

Media freedom in Kashmir after Art.370 abrogation

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

KP slain member cremated, Muslims neighbours grief-stricken, help with last rites: Pulwama, Kashmir

Shutdown Observed in Parts of Kashmir Against Ongoing ‘Eviction’ Drive

Jammu and Kashmir on Edge as Fear of ‘Eviction’ Haunts Residents

Delhi: Pulitzer awardee Kashmiri journo barred from travelling abroad, again

The post Kashmiri journalist, human right defender languishing in jail under a draconian law appeared first on SabrangIndia.

In light of the coronavirus, a virtual protest was organized on Monday, April 27 to stand up against the harassment of journalists in India-occupied Kashmir. The rally, held by Radical Desi, was remotely held in North Delta in Canada due to Covid-19 and was attended by various South Asian journalists and community activists from all over the globe. Radical Desi is an online publication that covers alternative politics in partnership with Indians Abroad for Pluralist India (IAPI).

Radical Desi reported that the protesters condemned the act of journalists in Kashmir being slapped with various criminal charges in a bid to suppress press freedom and voice of dissent under a right-wing Hindu nationalist government.  

The rally began with a poem dedicated to the late Gauri Lankesh by Amrit Diwana. Gauri Lankesh was a journalist who was extremely vocal against religious extremism and was murdered by Hindu fanatics in 2017.

Among the protesters was the Punjabi Press Club of British Columbia (PPCBC), Navjot Kaur Dhillon. She is the first female president of the club which has been consistently raising the issue of Kashmiri journalists since last summer.

Recently, at least three Kashmiri journalists, including female photographer Masrat Zahra, were recently charged under draconian laws after being accused of spreading “anti-national” propaganda. Gowhar Geelani, another prominent journalist and a published author was among the three.

Amid the lockdown, Gowhar Geelani was booked for by the Jammu and Kashmir Cyber Police for “glorifying terrorism in the Kashmir Valley”. According to a press release by the police, he was booked for “unlawful activities” including “glorifying terrorism in Kashmir Valley, causing disaffection against the country and causing fear or alarm in the minds of public that may lead to commission of offences against public tranquility and the security of State,” cited various media reports.

Photojournalist Masrat Zahra was booked under the Unlawful Activities Prevention Act (UAPA) for allegedly glorifying “anti-national activities” on social media. The press statement by the police read, “Cyber Police Station received information through reliable sources that one Facebook user namely Masrat Zahra is uploading anti-national posts … Facebook user is also believed to be uploading photographs which can provoke the public to disturb law and order. The user is also uploading posts that tantamount to glorify anti-national activities and dent image of law enforcing agencies besides causing disaffection against the country,” The Print reported.

The protesters said that they felt that the targeting of journalists was part of a smear campaign by the Indian state to terrorize and demonize minorities and any right thinking scholar who questioned its power.

Navjor Kaur Dhillon pointed out that the Indian authorities were going after Kashmiri Muslim journalists and doing nothing against right wing media commentators who are openly spewing venom against minorities.

Others who were part of the protest were the Editor of Chardikala Newspaper, Gurpreet Singh Sahota, and Punjabi Tribune editor Dr. Gurvinder Singh Dhaliwal. Both are associated with the PPCBC.

Two social justice activists from India, Buta Singh and Satwant Singh, joined the rally online and threw light on the overall situation that exists in India under an “intolerant regime”.

IAPI President Parshotam Dosanjh, and other members of the group Sandip Modgil and Gurpreet Singh also spoke on the occasion.

Kashmir has been under lockdown since August 5 last year after the abrogation of Article 370. Special rights given to the state were scrapped and military has been heavily deployed in the name of national security to contain an ongoing struggle for the right to self-determination in the region. Not only have political activists been indefinitely detained, but journalists in Kashmir are finding it difficult to work freely and fearlessly.

Related:

“I am a patriot to the core and I have always defended my country abroad:”  Dr Zafarul-Islam Khan Chairman, Delhi Minorities Commission
“To my utter shock, the police seized my phone citing inquiry into the Delhi violence”: Kawalpreet Kaur 

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