J&K&L High Court: UAPA Arrest Without Legal Justification Violates Constitutional Rights

LI Network

Published on: November 21, 2023 at 03:40 IST

The Jammu and Kashmir and Ladakh High Court, while granting bail to journalist Fahad Shah, has asserted that an arrest under the Unlawful Activities (Prevention) Act, 1967 (UAPA) lacking ‘legal justification’ infringes upon equality and liberty rights enshrined in the Constitution.

The court emphasized that despite the discretionary powers vested in the investigating agency for UAPA arrests, a robust rationale, rooted in the concept of a ‘clear and present danger,’ must be provided post-arrest.

This landmark ruling challenges the prevailing notion that the stringent provisions of S.43D(5) of the UAPA bar bail in such cases.

In a case where Shah, the founding editor of ‘The Kashmir Walla,’ faced accusations related to a 2011 article, the court highlighted the arbitrary exercise of executive discretion in arrests without legal justification, violating both Article 14 and Article 21 of the Constitution.

By citing judgments like Joginder Kumar and KA Najeeb, the court clarified that fundamental rights violations override the limitations imposed by S.43D(5), particularly when the accused does not pose a ‘clear and present danger’ to society.

The court’s scrutiny of the arrest was based on the principles outlined in KA Najeeb, emphasizing that the arrest must be justified by a potential threat to society. This approach challenges the traditional interpretation of UAPA bail provisions, advocating for a case-specific assessment rather than a broad analysis of the prosecution’s version.

While the court quashed the charges under Section 18 of the UAPA, noting the lack of evidence that the article provoked violence, Shah will still face trial for other UAPA sections and Foreign Contribution (Regulation) Act (FCRA) violations.

The ruling redefines the parameters for granting bail in UAPA cases, emphasizing the need for a constitutional check on arrests lacking legal justification.

Case Details: Peerzada Shah Fahad v. Union Territory of Jammu and Kashmir & Anr. | CrlA(D) No. 42 of 2022 c/w CRM (M) No. 472 of 2023

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