Public offering prayers at funeral of militant not anti-national activity: Jammu & Kashmir High Court

The Jammu & Kashmir and Ladakh High Court recently held that public offering funeral prayers to a killed militant, cannot be considered as an anti-national activity of a magnitude so as to deprive them of their personal liberty under Article 21 of the Constitution of India [Union Territory of J&K v. Javid Ahmad Shah]..A bench of Justices Ali Mohammad Magrey and MD Akram Chowdhary emphasised that the right of personal liberty is most precious and one cannot be deprived of it, except in accordance with procedure established under law."Offering of funeral prayers of a killed militant by the public at large, even at the instance of the respondents herein, who are stated to be elderly people of their village, cannot be construed to be antinational activity of that magnitude so as to deprive them of their personal liberty as guaranteed under Article 21 of the Constitution of India," the Court said.Personal liberty may be curtailed where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment, the Court further said placing reliance on the Supreme court's judgment in Maneka Gandhi v Union of India..The order was passed in appeals filed by the government against an order of the trial court grating bail to the respondents for offences under the Unlawful Activities (Prevention) Act (UAPA)..The case arose when a local militant of the Hizbul Mujahideen (HM) outfit was killed during an encounter with the security forces, and a person purportedly provoked the villagers to perform funeral prayers in absentia of the deceased militant.On further provocation, the FIR alleged that the Imam of Masjid Sharief offered the Jinaza (funeral), and during the funeral, the sentiments of those part of the prayer were incited by urging them to continue struggle till freedom..The primary contention of the State was that the trial court did not appreciate the fact that there was sufficient evidence connecting all the accused with the commission of offence..However, the High Court, while upholding the order granting bail observed the court below was right in its observations made in the order while deciding the application."No individual can be deprived of his fundamental right of liberty guaranteed under Article 21 of Constitution of India," the High Court held. .The High Court also underscored that nothing incriminating so as to deny bail was found against the accused "We, thus, found no ground for interference with the impugned orders, same are upheld. Resultantly, both the appeals are, dismissed.".The State was represented by Additional Advocate General MA Chashoo..[Read Order]