An anti-terror law and its interference with liberty 12 december 2023

The judgment in ‘Fahad Shah’ is a reminder that there is no need for revolutionary turns by courts to secure personal liberty in the face of oppressive laws and their enforcement

An anti-terror law and its interference with liberty

A judgment on November 17, 2023 by the Division Bench of the Jammu and Kashmir High Court

1 Court cleared the last hurdle for the release of journalist Fahad Shah. Mr. Shah, who had been granted bail in three cases already 

2 it seen preventive detention orders against him stoped, was in custody because of allegations in Case FIR No.1/2022 P.S. JIC/SIA Jammu. 

3 Charges had been framed like 

🍁Penal Code and

🍁 Foreign Contribution (Regulation) Act (FCRA), 2010, 

🍁as well as offences punishable under Sections 13 and 18 of the Unlawful Activities (Prevention) Act (UAPA) 1967.

क्या जजमेंट आया हाई कोर्ट के द्वारा

1 The High Court, in its November 17 judgment, has not only granted Mr. Shah bail but also partially set aside the order framing charge, as it has found no grounds to charge him for any offences other than Section 13 of the UAPA, and under the FCRA. 

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

National defamation as terror

unconnected to actual incidents

The use of UAPA to arrest and detain individuals in fact situations that are either entirely unconnected to actual incidents of violence, or individuals tangentially connected with such incidents, has been well-documented. 

इस कानून में और क्या-क्या समस्याएं हैं

1; the text of terrorism offences under UAPA is rather vague, 

2  कोई छोटा-मोटा केस भी टेरर की कैटेगरी में

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.

3 जमानत मिलना भी कोर्ट के ऊपर

Section 43-D(5) of UAPA, which places an embargo रोक लगाने का शासनादेश on courts from granting bail if they find that the police materials establish the accusations as ‘prime facie true’. 

शाह की तरफ से क्या पक्ष रखा गया

1 Section 18 were legally unsustainable as the State had not linked his act of publishing an article with terrorist acts punished under the law.

2  To which, 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. 

3 The High Court ruled that to agree with the government would flip criminal law on its head by creating an altogether new offence — treating allegations of defaming the country as terrorism seemed like a bridge just too far to cross.

Arrest and detention

1 On matters of arrest and detention, the High Court placed before itself an important question:

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

3  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 .

4 Ultimately, the High Court held

🍁both the law enforcement agency as well as the court must apply their mind before exercising their powers of arrest 

🍁sanctify पवित्र  further detention, to ensure that only in cases where a ‘clear and present danger’ , persons taken into custody.

Can this  revolutionise the workings of UAPA? 

1 I would argue that it has not. 

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

3 Similarly, 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.

इसी तरह, गिरफ्तारी को प्रतिबंधित करने के लिए 'स्पष्ट और वर्तमान खतरे' परीक्षण का आह्वान करके आनुपातिकता पर तर्क नए नहीं हैं, क्योंकि उच्च न्यायालय स्वयं पूर्व न्यायिक निर्णयों की भूमिका को स्वीकार करता है जैसे

कुछ प्रश्न और हैं जिनके जवाब आना बाकी है

1 What about compensation or damages for wrongful arrest and confinement? 

2 What about accountability of the state to redress the years that the accused would never reclaim? 

3 Fahad Shah’s case offers nothing on these points of note.

4 Perhaps such ideas are still too far off to fathom in a legal regime where courts are deciding whether a statutory rule can oust the fundamental right to life and liberty altogether

शायद ऐसे विचार अभी भी कानूनी व्यवस्था में समझ से बहुत दूर हैं जहां अदालतें यह तय कर रही हैं कि क्या कोई वैधानिक नियम जीवन और स्वतंत्रता के मौलिक अधिकार को पूरी तरह से खत्म कर सकता है।.

Deprivations of liberty

1 Using UAPA to present the alleged defamation of the country as an act of terror to justify the arrest and prolonged detention of a person is only a footnote in that long, rather undistinguished history. 

2 What the judgment in Fahad Shah reminds us, as did the Supreme Court of India’s decision in Vernon Gonsalves some months ago, 

is that there is no need for revolutionary turns by courts to secure personal liberty in the face of oppressive laws and their enforcement.

दमनकारी कानूनों और उनके कार्यान्वयन के सामने व्यक्तिगत स्वतंत्रता को सुरक्षित करने के लिए अदालतों द्वारा क्रांतिकारी बदलाव की कोई आवश्यकता नहीं है।

Source the hindu