An anti-terror law and its interference with liberty Premium

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

‘For better or for worse, the Indian state has witnessed a penchant for arbitrary deprivations of liberty since its founding’ | Photo Credit: Getty Images

A judgment on November 17, 2023 by the Division Bench of the Jammu and Kashmir High Court cleared the last hurdle for the release of journalist Fahad Shah. Mr. Shah, who had been granted bail in three cases already and had also seen preventive detention orders against him quashed, was in custody because of allegations in Case FIR No.1/2022 P.S. JIC/SIA Jammu. 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, as well as offences punishable under Sections 13 and 18 of the Unlawful Activities (Prevention) Act (UAPA) 1967.

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. 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

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. There are important legal reasons for this choice; 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’. These twin features of the UAPA regime were what contributed to Mr. Shah’s arrest and continued detention.

In its judgment, the High Court of Jammu and Kashmir offered a timely reminder to other courts and law enforcement agencies that the vast interference with liberty permitted under the anti-terror law requires greater, not lesser, circumspection in its enforcement.

On matters of substantive law, Mr. Shah’s counsel had argued that the charges under Section 18 were legally unsustainable as the State had not linked his act of publishing an article with terrorist acts punished under the law. 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. 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

On matters of arrest and detention, the High Court placed before itself an important question: 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. While both commit different offences under UAPA, attracting Section 43-D(5), to suggest that the second should be treated on a par with the first outrages all notions of common sense. 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.

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 and sanctifying further detention, to ensure that only in cases where a ‘clear and present danger’ is evinced are persons taken into custody.

Has the High Court in Fahad Shah’s case delivered findings that may revolutionise the workings of UAPA? I would argue that it has not. 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. 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.

What about compensation or damages for wrongful arrest and confinement? What about accountability of the state to redress the years that the accused would never reclaim? Fahad Shah’s case offers nothing on these points of note.

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.

Deprivations of liberty

For better or for worse, the Indian state has witnessed a penchant for arbitrary deprivations of liberty since its founding, unwillingly equipping its courts with enough means to try and secure the promise of liberty. 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. 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. The path to hold the state accountable can be easily chartered by those willing to do so. All it takes is a commitment to the underlying logic of state action being accountable to questions. At the same time, there is also the path of comparably lesser resistance for agencies and courts, where the official version is accepted without questions. The High Court, in Fahad Shah’s case, reminds the powers that be, that only the former course of action is blessed by the Constitution.

Abhinav Sekhri is a lawyer practising in Delhi