The Supreme Court earlier this week declined to interfere with the Jammu and Kashmir High Court’s decision to grant bail to Kashmiri journalist Peerzada Shah Fahad who was booked under the Unlawful Activities (Prevention) Act, 1967 (UAPA) [Union Territory of Jammu & Kashmir v. Peerzada Shah Fahad] reported Bar and Bench.
The Division Bench of Justices Bela M Trivedi and Satish Chandra Sharma said that it is not setting aside the bail order since the journalist has remained out on bail for about a year and since the trial against him has already started.
However, the top court disagreed with the High Court’s interpretation of when bail can be granted in UAPA cases.
It proceeded to declare the Jammu and Kashmir and Ladakh High Court’s judgment granting bail to Fahad as per incuriam – that is, bad in law for having been passed without noticing binding legal precedents.
“Suffice it to say that having regard to the aforestated judgments of the Constitution Benches, it is directed that the impugned judgment and order being per incuriam shall not be cited as a precedent in any other case. It is also needless to say that any breach of conditions of bail or non-cooperation of the respondent in proceeding with the trial shall entail cancellation of his bail,” the Court said in its October 14 order.
Fahad, an editor of ‘The Kashmir Walla’, was booked under the UAPA for allegedly publishing articles that incite violence and promote a separatist ideology.
In November 2023, the Jammu and Kashmir High Court granted him bail while also quashing some of the several charges filed against him under the UAPA and the Indian Penal Code (IPC).
Aggrieved, the Union Territory challenged this order to the extent that it granted bail and quashed some charges.
Notably, in its bail order, the High Court had relied on a 1919 decision of the United States Supreme Court in Schenck v. United States to hold that a UAPA accused can be granted bail if he does not present any “clear and present danger” to society.
Representing the Jammu and Kashmir administration, Solicitor General Tushar Mehta told the Supreme Court that the doctrine of “clear and present danger” has already been rejected in several earlier rulings such as in the cases of Babulal Parate v. State of Maharashtra (1961), State of Madras v. VG Row (1952), and Arup Bhuyan v. State of Assam (2023).
The Court found substance in this stance but declined to set aside the bail order.
“Though, we find some substance in the submissions made by the learned S.G., Mr. Mehta, we are not inclined to interfere with the impugned order, having regard to the fact that the respondent is on bail since last about one year and since the trial has already commenced,” the top court said.
The Supreme Court also declined to directly interfere with the High Court’s decision to quash some of the charges against the journalist.
The top court reasoned that the trial court is empowered to alter charges at any stage of the proceedings after considering the evidence on record.
“We further clarify that the observations made by the High Court in the impugned order shall not come in the way of the Trial Court in proceeding further with the trial in accordance with law,” the top court added.
Solicitor General of India Tushar Mehta, Additional Advocate General Kanu Aggarwal, and advocates Parth Awasthi and Pashupathi Nath Razdan, appeared for the Union Territory of Jammu and Kashmir. (Bar and Bench)
