Unpacking the Judgment in Fahad Shah v. Union

A Division Bench of the Jammu and Kashmir High Court delivered its judgment in Fahad Shah v. UT of J&K & Anr. on 17.11.2022 — a common judgment in petitions assailing orders passed by the trial court that had framed charge and denied bail to Mr. Shah. The ultimate result of the judgment was to partially set aside the order on charge, taking out the serious offences punishable under the Unlawful Activities (Prevention) Act 1967 ['UAPA'] and the Indian Penal Code 1860 ['IPC'] while retaining some less serious offences under the UAPA and the Foreign Contribution (Regulation) Act ['FCRA']. And, significantly, to grant him bail and sanction his release from prison where he had spent more than six hundred days, being detained in multiple cases and pursuant to preventive detention orders.

Indian law on bail generally, and especially in statutes such as the UAPA, makes it far easier for courts to deny bail in non-bailable cases. The Criminal Procedure Code 1973 ['Cr.P.C.'] does not demand reasoned orders for rejecting bail, only for granting it; similarly, the UAPA encourages rejecting bail if accusations are simply 'prima facie true'. At some level, this makes any bail order an act of courage. The judgment in Fahad Shah is mightily courageous, and has garnered deserved praise. This post is not another footnote in that celebratory procession, though, and wishes to engage with the judgment from the practitioner's lens. It only looks at procedural issues, and does not ponder upon the implications of the government drawing the contours of terrorism so widely as to bring within it alleged defamation of national interests. 

The first point of note is the procedural posture of the case — this was a case where charges had already been framed. To conclude that charge ought to be framed is, essentially, a finding by court that the police materials make out a 'prima facie' case against the accused. Determining whether the case is 'prima facie true' is precisely the threshold identified by Section 43-D(5), UAPA for courts to reject bail. So is there no chance of being granted bail where charge has been framed? 

Since the High Court in Fahad Shah ruled that there was no material to frame charge for the offences that triggered the restriction under Section 43-D(5), it did not need to answer this issue as such. It nevertheless expounded on a related problem — if accusations are 'prima facie true' does that act as an insurmountable hurdle for release? The conclusion it arrived it was 'no', and it located the reasoning for its conclusion in Article 21 of the Constitution and the view in Supreme Court decisions such as K.A. Najeeb (2021) which held that the direction of constitutional courts to grant bail on constitutional grounds, where such grounds are made out, cannot be fettered by the text of the UAPA. Using this prong, it latched on to another line of prior cases which had held in a general context that while accusations may be made out in many cases and confer a power of arrest, the mere existence of this power did not automatically validate its exercise in all cases. Similarly, when it comes to the UAPA, even where the accusations may be 'prima facie true', that did not validate the fact of arrest itself which the court had to separately inquire into in every case. If, as it held in Fahad Shah, the arrest itself was not made out, then there was no question of Section 43-D(5) of the UAPA acting as a barrier to release.

At its highest, the judgment in Fahad Shah has reinforced what ordinary law already demanded of courts — a thorough scrutiny of the validity of arrest prior to authorising any further remand to custody. Strong reminders of the judicial obligation to seriously scrutinise the police version and examine the need for an arrest came from the Bombay High Court in Chanda Kochhar (an IPC case) and more recently by the Supreme Court in Pankaj Bansal (a PMLA case). Fahad Shah reiterates the logic in a UAPA context. The judgments show how courts can read more bite into the existing statutory yardsticks for effecting arrests if they try. That Mr. Shah remained in custody for almost two years in a case where the High Court finally held that he needn't have been arrested sums up how hard courts end up trying.

Where Fahad Shah does not develop the law is its choice to ground its reasoning in the Constitution and not the text. While reaffirming law that allows constitutional courts to interfere with orders and grant bail, it did not clarify about the extent to which trial courts can proceed on the same route. One might argue that this is a bogus point — the Constitution reigns supreme, and all courts must enforce its mandate. But the specific reference to constitutional courts has allowed prosecutors to raise an objection and for trial courts to pass the buck. Had the Court tethered its reasoning to the statutes more than the constitution, it would have helped diffuse such claims from being raised in the everyday application of the laws. 

Fahad Shah reminds us that the only avenues for bail in such cases appear to be moving (constitutional) courts by invoking Article 21, or by challenging the validity of the accusations itself. Thus, what the High Court does not do, is develop the law on bails in UAPA cases where charge has been framed, where the court does not conclude that the charges or bogus or arrest was improper. To repeat, the issue is an obvious one: when a court frames charge, it delivers a finding accepting that accusations are prima facie true, which is the threshold identified for rejecting bail under Section 43-D(5) of the UAPA. In ordinary non-bailable cases, the absence of a Section 43-D(5) means that even if charges are framed bail can still be granted if the circumstances so warrant, since there is no peremptory bar operating. For instance, where the case has dragged on for years and there is no threat to evidence being recorded. This is seemingly not available in the UAPA which can cause serious prejudice to those persons unable to exercise remedies by going to a High Court. 

To explain the issue through the logic that is endorsed by the High Court — while it held in Para 32 that the issue of arrest ought to be scrutinised on the anvil of a 'clear and present danger' test, it did not go so far as to hold that the continued detention of the accused also ought to be tested on that anvil, and that is a problem.