In November 2023, the High Court of J&K and Ladakh passed its judgment in Peerzada Shah Fahad v. Union Territory of J&K. Readers may recall that this judgment concerned a journalist, Mr. Shah, who had been prosecuted for offences under the Unlawful Activities Prevention Act 1967 ['UAPA']. In connection with which he had also been arrested and denied bail.
The judgment of the High Court was the result of Mr. Shah challenging two orders, one by which charges had been framed against him for offences under the UAPA and the other by which his bail application had been rejected by the lower court. The High Court granted him bail, and also ruled that some of the charges against him, including the most serious UAPA charge, were unsustainable. [The judgment was covered on the Blog here and was also discussed in the press here, here and here].
This judgment was challenged by the Union Territory of J&K and Ladakh before the Supreme Court. The Union, presumably, sought that the bail so granted be denied and that the charges originally framed against Mr. Shah be restored. It appears that, on the first date of hearing in September 2024, the Union took an adjournment. After which the case came up for hearing on 14.10.2024, where the petition was disposed off. The two orders suggest that the Court did not issue any notice to the opposite side, i.e. Mr. Shah, before deciding the petition.
That a petition was decided without hearing the proposed respondent is not uncommon as many petitions to the Supreme Court are dismissed at the outset as the Court considers no interference is being called for with the lower court's orders. In this case, though, the Court did not simply dismiss the petition. While it held that there was no reason to deny bail and return Mr. Shah to custody, the Supreme Court made a key observation in respect of the validity of the reasoned 25 page judgment of the High Court: It declared that the judgment was per incuriam and shall not be cited as precedent (para 6). In other words, no other court can henceforth rely upon the observations made by the J&K and Ladakh High Court, nor can counsel try to use them in support of their case.
Why did the Supreme Court arrive at such a conclusion? Paragraph 6 of the brief two page order passed on 14.10.2024 states that the per incuriam finding was because the High Court's judgment were contrary to judgments passed by the Constitution Benches of the Supreme Court. To understand which judgments, we must turn to Paragraph 4 of the same order, which extracts submissions made by the Solicitor General. To avoid any confusion I have copied the relevant part below:
"The learned S.G., Mr. Mehta has drawn our attention to the para 28 of the impugned judgment, whereby the High Court has placed reliance on Schenck Vs. United States (249 US 47 (1919) : 1919 SCC Online US SC 62). He submitted that the two Constitution Benches in Babulal Parate vs. State of Maharashtra (AIR 1961 SC 884) and in State of Madras vs. V. G. Row [(1952) 1 SCC 410] and one Three Judge Bench in Arup Bhuyan vs. State of Assam [(2023) 8 SCC 745] have rejected the application of the doctrine of “clear and present danger”, as laid down in the said judgment, i.e., in Schenck Vs. United States (supra), and therefore, the observations made in the impugned judgment would be per incuriam. ..."
There is no doubt that the Indian Supreme Court does not fully approve of the test in Schenck and that if a High Court relies upon Schenck without understanding its clarifications by the Indian Supreme Court, it is proceeding in error. But underlying all of this analysis is a rather obvious premise: the High Court ought to have been using Schenck for the reasons why the Indian Supreme Court did not approve it, for it to have ever fallen into error. But if it was not using Schecnk for these purposes, there was no problem, because there is no complete ban on citing a case that may have been disagreed with or frowned upon in the past.
Let me explain this further. A judicial decision gives us an answer to a problem, but rarely does it give this answer in a straightforward or formulaic manner. Judges give their answer in ways that can help in future cases, and do so with their unique sense of flourish (or dose of dour). Schenck is one such judgment, in which the U.S. Supreme Court not only decided the problem before it — the validity of the Espionage Act — but did so by providing a test for future courts to decide issues of the legality of similar statutes. Now it is obviously open for future courts to disagree with this old test and come up with their own tests, which is what happens with India's treatment of Schenck. The result is that the test laid down in Schenck cannot be used to decide the kind of problems that it was intended to solve. It does not mean that no court can use the decision to aid its imaginative process of solving other problems.
To decide, then, whether or not the High Court in Mr. Shah's case had fallen into error in citing Schenck, it is first necessary to determine just what was the problem that it was dealing with. Was the petition testing the legality of any statute on grounds of interference with freedom of speech and expression? It was not. It was deciding a challenge to arrest and detention by a person who had been arrested in 2022 on the basis of accusations against him pertaining to acts done in 2011. In other words, was an arrest in 2022 justified for alleged illegal acts committed in 2011?
A reading of the High Court's judgment from November 2023 makes it clear that there are only three places in which Schenck, or the idea of 'clear and present danger' which the Supreme Court order cites, are referred to. The first of these is paragraph 28 of the High Court's judgment (which is also mentioned in the Supreme Court's order):
The charge against the Appellant is basically associated with his right to freedom of speech and expression, which prima facie appears to have gone wrong. In Schenck Vs. United States, the charge against the Appellant was under the provisions of the Espionage Act that impeded the US war efforts against the German Empire in world war I, by mailing letters to discourage conscripts who had qualified to give their service as soldiers against Germany, from joining the US Army. The Appellant sought the quashing of the Espionage Act as it infringed his first amendment right of free speech. Justice Oliver Wendel Holmes writing for the court held “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent. It is a question of proximity and degree”.
The second and third references are not to Schenck, but only to the idea of a 'clear and present danger' at paragraphs 31 and 32 of the judgment — and neither of these have been referred to by the Supreme Court. What do these paragraphs show us? That the High Court did not use 'clear and present danger' as a test to decide the validity of interference with free speech and expression, but as a kind of placeholder to create a new threshold to determine circumstances where arrest and detention would be justified under the UAPA.
Paragraph 31: " The legislative intent behind s. 43D (5) and its proviso was to ensure that those who were a “clear and present danger” to the society, whose relationship with the offence is proximate and direct, do not get bail during the pendency of the trial lest they take to their nefarious ways again, once released. It was not to keep incarcerated the unwary transgressor who found himself at the wrong place at the wrong time. ...". [Emphasis mine]
Paragraph 32: "We hold, that the investigating agency, investigating a case under the UAPA, has the unbridled authority to arrest or not to arrest under the provisions of the UAPA. However, upon arrest, the investigating agency would have to justify the arrest on the anvil of “clear and present danger” of the accused to the society at large, if enlarged on bail. The existence of prima facie evidence against the accused is to no avail if there is no justification for the arrest based on the doctrine of clear and present danger to the society. If the investigating agency does not satisfy this Court and is unable to justify the arrest (as warranted in Joginder Kumar) the same would result in the violation of the rights of the accused under part III of the Constitution as adumbrated in K.A Najeeb's case, and the accused may be enlarged on bail. In order to assess whether the accused is a clear and present danger, there can be no rule of thumb and it must be seen in the backdrop of the specific facts and circumstances of each case." [Emphasis mine]
What we have here, is a court crafting an idea for solving a problem with remnants of old concepts from different contexts. And in crafting this new idea the J&K and Ladakh High Court did not simply cite from Schenck, but it turned to a concept which the Supreme Court of India has wholeheartedly endorsed time and against: that a person ought not to be arrested merely because he can, but there must be grounds for an arrest.
Moreover, it would be a disservice to say that this is an entirely new idea to begin with. Within the Indian context, there were already decisions, by various courts, which stressed upon the need for some proximity between the allegations and the exercise of powers of arrest. All that the J&K and Ladakh High Court did was to express this rationale in different, more evocative, prose. That it did so by bringing to use the prose from a decision which had been disagreed with in a different context, could not be a reason to deprive all other courts from even considering the High Court's reasoning.
If the the only reason to hold that the judgment of the J&K and Ladakh High Court in Mr. Shah's case is per incuriam is because it decided to adopt the same catchy phrase from a decision which earlier benches of the Indian Supreme Court had disagreed with for different reasons—and I say 'if' because the petition itself may have raised many other grounds, none of which are captured in the order unfortunately—then it appears that the Supreme Court order dated 14.10.2024 has committed a most serious error.
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