Justice Wasim Sadiq Nargal has slammed the detention of Kashmir Walla editor Fahad Shah under the draconian Jammu and Kashmir Public Safety Act (PSA), 1978 as a deprivation of his constitutional and legal rights. Shah was arrested on February 4, 2022 and has faced terror charges in multiple cases for reports on the news portal alleging fake encounters, a forcible Republic Day celebration in a private school and corruption by security forces and the publication of an allegedly seditious article eleven years ago!
Shah is amongst the four journalists from Kashmir who are currently in jail for their work, all charged with terror under various provisions of the UAPA. Last month, Irfan Mehraj was arrested on charges of terror funding under the UAPA, Aasif Sultan, was arrested in August 2018 and Sajjad Gul, was arrested in January 2022. Photojournalist Manan Dar was released on bail in January 2023, after the sessions court said that allegations against him do not appear to be cogent or true!
In his order, passed on April 13, 2023, Justice Nargal said :“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.”
The order examined the defence lawyer, A S Roongta’s contention that Shah had not been given any relevant documents, copies of FIRs or the detention order as required by law. The judge said that the “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.” Furthermore, the order said that 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”….. especially when “there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021.”
The oder also strongly critiqued the powers of preventive detention under the law as “exceptional and even draconian.” and said that the “case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority.” The order said:”Since the detaining authority has 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.”
Shah has been booked on terror charges, including under the Unlawful Activities (Prevention) Act,1967, in five separate cases. In a bizarre merry-go-round, he managed to secure bail in one case, only to face a fresh case in another police station! Shah was arrested by Pulwama police on February 4, 2022, and charged under the UAPA as well as sedition under the Indian Penal Code. He secured bail but was immediately shifted to another police station in Shopian on another FIR on charges of provoking rioting under the Indian Penal Code. On grant of bail here, he was moved to yet another police station in Srinagar and charged with preventive detention under a separate FIR under the PSA!
Last month, in another related development, Shah was charge-sheeted for publishing an allegedly “seditious” article 11 years ago in the Kashmir Walla! The State Investigation Agency (SIA) which coordinates terror-related cases, filed the charge-sheet against Shah and a Kashmir University scholar Aala Fazili, for a case lodged by the Counter-Intelligence Jammu (CIJ) police on April 4, 2022 for the publication of a piece entitled “The shackles of slavery will break”, on Nov 6, 2011. The SIA said that the allegedly seditious article was restored on the website of the news portal after it made a preservation request for it.
See order here: