Maligning India's honour not terrorist act under UAPA; criticising government cannot be penalised: J&K High Court

The Jammu & Kashmir and Ladakh High Court recently rejected the J&K Police’s argument that "damaging" India’s honour and dignity would amount to a terrorist act under the Unlawful Activities (Prevention) Act (UAPA). [Peerzada Shah Fahad v. UT of J&K and Anr].A division bench of Justice Atul Sreedharan and Justice Mohan Lal (who retired last week) said if the argument were accepted, it would literally turn the criminal law on its head and penalise any criticism of the government.“It would mean that any criticism of the central government can be described as a terrorist act because the honour of India is its incorporeal property. Such a proposition would collide head long with the fundamental right to freedom of speech and expression enshrined in Article 19 of the Constitution,” it said..The Court made the observations in its order granting bail to The Kashmir Walla editor Fahad Shah. The observations were in response to an argument made by the prosecution while opposing the bail plea of The Kashmir Walla editor Fahad Shah. The journalist has been booked in a UAPA case by J&K’s anti-terror State Investigation Agency (SIA) for allegedly publishing articles advocating secession of Jammu and Kashmir..During the hearing, when the Court asked the State to justify how Section 15 of the UAPA (terrorist act) applies in the facts of the case, the Senior Additional Advocate General referred to Section 15(1)(a)(aa) of the UAPA that makes an act resulting in the loss, damage or destruction of property, a terrorist act.Explaining the contention, the State said the property as defined under the UAPA can be both corporeal (that actually exists) or incorporeal (that does not have physical existence). Thus, it was submitted that honour, dignity and fair name of India was its “incorporeal” property.The article published by Shah besmirched the "property" as it levelled “baseless allegations against the Government of India of indulging in genocide, committing rape of the women of Kashmir by its armed forces and other outrageous conduct which had the propensity to lower the image of India in the eyes of the world”, submitted the State counsel..However, the Court rejected the argument and said the basic rule of the criminal law and criminal statutes is that it must be unambiguous, unequivocal and clear as day when it makes an act an offence.It added that before the concept put forth by the State’s counsel can be accepted, the legislature would have to make the act of expressing any disparaging thought of India, a specific offence. “The average Indian in the street who must suffer the consequences must be made well aware beforehand that his negative opinion of India, expressed in words or in writing or any other form giving permanence, could visit him with severe sanction,” the Court observed..On the definition of 'property', the Court said even otherwise the property referred to in Section 15(1)(a)(ii) must be such that it is susceptible to destruction or loss by use of means like explosives or firearms. The Court concluded that property that can suffer damage, loss or destruction can only be a material or corporeal property. “An incorporeal property would be impervious to damage and destruction by the use of means mentioned in s. 15(1)(a). Therefore, the argument put forth by the Ld. Sr. AAG is rejected,” it added.The High Court last week granted bail to Shah in the case and observed that in matters concerning bail of accused under the UAPA, the investigating agency making the arrest under the Act would have to justify the arrest on the ground of “clear and present danger” which the accused person poses to the society..Senior Advocate PN Raina and Advocate JA Hamal represented the petitionerSenior Additional Advocate Generals Monika Kohli and Mohsin Qadri represented the State[Read Judgment]