Inciting people for Kashmir's secession from India is unlawful activity under UAPA: J&K High Court

The High Court of Jammu & Kashmir and Ladakh recently observed that inciting people for the secession of Jammu & Kashmir from India constitutes an 'unlawful activity' under the Unlawful Activities (Prevention) Act (UAPA) [Union Territory of J&K Through Police Station Bandipora v Ameer Hamza & Anr].

A Division Bench of Justices Sanjeev Kumar and Sanjay Parihar said that the offence will attract penal consequences under Section 13(1) of the anti-terror law.

"These accusations, coupled with the statements made by witnesses under Section 161 CrPC, prima facie bring the allegations within the ambit of “unlawful activity” as defined in Section 2(1)(o) of the Unlawful Activities (Prevention) Act, 1967, because the respondents were calling for and inciting a struggle for cession of J&K from the Union of India an activity punishable under Section 13(1) of the Act," the Court held.

The Bench made the observations while setting aside an order of a trial court which had discharged two men facing prosecution under UAPA for delivering speeches in Bandipora after Friday prayers on March 20, 2015.

As per the allegations, accused Ameer Hamza Shah and Rayees Ahmed Mir allegedly raised slogans for separation of Jammu and Kashmir from India and also said that it was illegally occupied by India.

The trial court set them free on the ground that raising slogans alone without resulting in immediate violence or law-and-order issues, does not constitute an 'unlawful activity' under the UAPA.

The trial judge relied on the Supreme Court's judgement in Balwant Singh v State of Punjab in which the accused had raised slogans after the assassination of Prime Minister Indira Gandhi but were acquitted as no violence ensued.

The High Court disagreed with the trial court's reasoning and said that the Balwant Singh case relates to the offence of sedition, not UAPA.

"The facts in that case were clearly distinguishable from those before the Trial Court. There is a clear distinction between the essentials of Section 124-A, 153-A IPC, and the term “unlawful activity” as defined in Act of 1967, as amended from time to time," the High Court said.

Therefore, it restored the chargesheet and ordered the trial court to frame charges under Section 13 of UAPA.

"The chargesheet shall stand restored with the direction to the trial court to proceed with framing of charge against the respondents for offence under Section 13 of ULA(P) Act, and thereafter proceed to dispose of the challan in accordance with law," the Court ordered.

The Union Territory of Jammu and Kashmir was represented through Government Advocate Faheem Shah and advocate Maha Majeed.

[Read Order]