SRINAGAR: The Supreme Court has ruled that the Jammu and Kashmir and Ladakh High Court’s decision to grant bail under the Unlawful Activities (Prevention) Act (UAPA) based on the absence of a “clear and present danger” to society is legally flawed. However, the Court did not revoke the bail of journalist Fahad Shah, granted by the High Court in November 2023, Live Law reported.
The High Court judgment, which granted bail to Kashmir-based news journalist Peerzada Shah Fahad, also held that lowering of India’s global reputation cannot be held to be a terrorist act within the meaning of Section 15 of the UAPA.
The High Court had relied on the US Supreme Court’s 1919 Schenck v. United States ruling, which established the “clear and present danger” test, but the Supreme Court of India rejected the application of this doctrine. It cited previous Indian rulings, including Babulal Parate v. State of Maharashtra and Arup Bhuyan v. State of Assam, which held that Indian law does not adopt this test.
While dismissing the Union Territory of Jammu and Kashmir’s appeal challenging the bail, the Supreme Court declared the High Court judgment per incuriam, meaning it should not serve as a precedent. However, it did not interfere with the bail granted to Shah, who has been out on bail for nearly a year. The Court warned that any breach of bail conditions by Shah could lead to its cancellation. It also clarified that the trial court retains the authority to modify charges against him.
Shah had been charged under the UAPA and IPC for allegedly publishing articles promoting separatism and inciting violence, and had been in custody since May 2022 until the High Court granted him bail in November 2023.
