Fahad Shah's Case

  • A judgment by the Division Bench of the J&K High Court cleared the last hurdle for the release of journalist Fahad Shah

  • Mr. Shah, had been granted bail in three cases already and had also seen preventive detention orders against him quashed. 

  • Charges had been framed by the trial court in the case earlier this year, and he was standing trial for various offences under the Penal Code and Foreign Contribution (Regulation) Act (FCRA), 2010.

  •  Also offences punishable under Sections 13 and 18 of the UAPA 1967.

  • The High Court, in its judgment, has not only granted Mr. Shah bail but also partially set aside the order framing charge.

  •  It has found no grounds to charge him for any offences other than Section 13 of the UAPA, and under the FCRA

  • The High Court made notable observations on the interpretation and application of UAPA, India’s primary anti-terror statute, in matters of personal liberty.

UAPA Interpretation

  • The use of UAPA to arrest and detain individuals in fact situations that are either entirely unconnected to actual incidents of violence.

  • Individuals tangentially connected with such incidents, has been well-documented

  • The text of terrorism offences under UAPA is rather vague, and when read together with the preparatory offence of Section 18, allows the statute to cast an unimaginably wide net to label seemingly innocent acts such as hosting an article online as a preparatory or conspiratorial act to commit terror.

  • Together with the catch-all nature of the offence, there are the procedural recalibrations of the ordinary rules of the game brought about by UAPA. 

  • The latter is most apparent in Section 43-D(5) of UAPA, which places an embargo on courts from granting bail if they find that the police materials establish the accusations as ‘prime facie true’.

  • The government sought to argue that publication of the article was an act of terror, as it sought to harm ‘property’ in the form of India’s reputation.

  • The High Court ruled that to agree with the government would flip criminal law on its head by creating an altogether new offence.

Limitations of the Judgment

  • Does Section 43-D(5) mathematically deny bail in every case allegations are ‘prima facie true’? 

  • To answer this, it juxtaposes the image of a bomber, an active threat, with that of a shepherd who has been forced to divulge information or finances

  • According to the High Court, provisions such as Section 43-D(5) were meant to prevent the easy release of persons such as the imaginary bomber, and could not become insurmountable obstacles preventing the release of persons such as the shepherd.

  • The High Court held, both the law enforcement agency as well as the court must apply their mind before exercising their powers of arrest and sanctifying further detention, to ensure that only in cases where a ‘clear and present danger’ is evinced are persons taken into custody.

  • To conclude that the anti-terror law did not extend as far as to punish alleged defamation of the country was not a radical finding. 

  • Arguments on proportionality by invoking a ‘clear and present danger’ test to restrict arrests are not novel, as the High Court itself acknowledges the role of prior judicial decisions such as Joginder Kumar on this point.

Article 21

  • Article 21 of the Indian Constitution guarantees the right to life and personal liberty

  • "No person shall be deprived of his life or personal liberty except according to procedure established by law."

  • This article is one of the most important fundamental rights enshrined in the Indian Constitution. 

Here's a breakdown of the key aspects:

1. Right to Life:

  • Right to food

  • Right to shelter

  • Right to health

  • Right to education

  • Right to a pollution-free environment

  • Right to livelihood

2. Right to Personal Liberty:

  • Move freely within the country

  • Choose one's occupation

  • Express oneself freely

  • Form associations

3. Procedure Established by Law:

  • Passed by a competent legislature

  • Reasonable

  • Fair

  • Just

  • While Article 21 is a fundamental right, it is not absolute.

  • Reasonable restrictions can be imposed by the state in the interest of:

    • Public order

    • Morality

    • Health

    • Defence of the nation

  • Article 21 serves as a cornerstone of individual liberty and human dignity in India.

  • It has played a crucial role in challenging oppressive state actions and securing fundamental rights for the people.



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Learnerz IAS | Concept oriented UPSC Classes in Malayalam: UAPA UPSC NOTE
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