Date : 14/12/2023

Relevance: GS Paper 2 - polity - Criminal justice

Keywords: UAPA, Foreign Contribution (Regulation) Act (FCRA) of 2010, Personal Liberty

Context-

• The recent judgment by the Division Bench of the Jammu and Kashmir High Court, in the case of journalist Fahad Shah has brought to the forefront the delicate balance between national security concerns and individual liberties.
• We will look into the implications of the judgment, emphasizing the challenges posed by the Unlawful Activities (Prevention) Act (UAPA) and its potential interference with personal liberty.

Background of the Fahad Shah Case:

• Fahad Shah, a journalist, found himself entangled in a legal web, facing charges under the Penal Code, Foreign Contribution (Regulation) Act (FCRA), 2010, and Sections 13 and 18 of the UAPA.
• The High Court's decision to grant bail and partially set aside charges sheds light on the broader issues surrounding the interpretation and application of UAPA concerning personal liberty.

Issues raised by Court:

The Catch-All Nature of UAPA Offences:

• One of the key concerns highlighted in the judgment is the vague language of terrorism offences under UAPA.
• This vagueness, coupled with Section 18, allows the law to cast a wide net, encompassing acts that may seem unrelated to actual violence.
• The judgment draws attention to the danger of labeling seemingly innocent actions, such as publishing an article online, as preparatory or conspiratorial acts to commit terror.

Procedural Recalibrations and Denial of Bail:

• Underscoring the procedural challenges posed by UAPA, particularly in Section 43-D(5), which restricts courts from granting bail if police materials establish accusations as 'prima facie true.'
• The judgment questions the impact of this provision on personal liberty and cautions against its blanket application.
• The case of Fahad Shah prompts a reassessment of whether the denial of bail should be automatic in every instance where accusations appear 'prima facie true.'

National Defamation as Terrorism:

• The prosecution's attempt to equate Fahad Shah's act of publishing an article with an act of terror raises crucial questions about the expansive interpretation of UAPA.
• The government argued that the article aimed to harm India's reputation, constituting an act of terror.
• However, the High Court rejected this notion, asserting that treating defamation as terrorism would distort criminal law.

The 'Clear and Present Danger' Test:

• The judgment introduces the 'clear and present danger' test, emphasizing that both law enforcement agencies and courts must apply their discretion before arrests and continued detentions.
• Drawing a distinction between an active threat and a person tangentially connected to an offense, the High Court advocates for a nuanced approach in applying Section 43-D(5) and preventing its misuse.

Compensation and Accountability:

• While the judgment addresses substantive legal issues, it falls short in addressing questions of compensation and accountability for wrongful arrests and confinement.
• It highlights the absence of provisions in Fahad Shah's case for compensating the accused or holding the state accountable for the years lost during detention.

The Path to Personal Liberty:

• It argues that the Fahad Shah case, while not revolutionary, serves as a reminder of the ongoing struggle to secure personal liberty in the face of oppressive laws.
• It draws parallels with earlier decisions, such as the Supreme Court's ruling in Vernon Gonsalves, underlining the need for a commitment to holding the state accountable.

Way Forward

• Moving forward, there is a necessity for a robust anti-terrorism law in India, although its implementation may occasionally lead to severe anomalies such as the arrest of activists. While the existing UAPA includes effective provisions to address terrorism as a cognizable offense, it also exhibits certain defects and drawbacks that require careful attention for the law to be both effective and efficient in preventing and combating terrorism.
• The UAPA, designed to confront challenging circumstances, has proven to be a stringent law, resulting in individuals spending over a decade in jail before being acquitted, highlighting its potential for misuse. The Act, with its relaxed timelines for the state to file chargesheets and stringent bail conditions, grants the state greater powers compared to the Indian Penal Code.
• Amendments to the Act are necessary to establish a constitutional functionary independent from the Executive, responsible for sanctions in prosecutions and investigations under this law. Designating a High Court Judge for this purpose could be a viable solution.
• Terrorism and unlawful activities are inherently political issues, and for the Act to be effective, its application must consistently remain apolitical.

Conclusion

The Fahad Shah case underscores the challenges posed by anti-terror laws like UAPA to personal liberty. While the judgment does not herald a revolutionary change, it serves as a reminder that courts play a crucial role in upholding individual rights.
It emphasizes the need for ongoing efforts to ensure accountability, question state actions, and navigate the delicate balance between national security and personal freedoms. As the legal landscape evolves, the Fahad Shah case stands as a marker in the ongoing discourse on safeguarding personal liberty in the context of anti-terror legislation.

Source- The Hindu