Guest Post: Reflections on the High Court's Judgment in Fahad Shah's Case

(This is a guest post by Rajyavardhan Singh)

A recent post on this blog by the editor argued that the Supreme Court in Union Territory of J&K v. Peerzada Shah Fahad had erred in declaring the J&K and Ladakh High Court’s judgement (“Fahad Shah”) per incuriam merely for referencing the "clear and present danger" test from Schenck v. United States (“Schenck”) in the context of bail under Unlawful Activities Prevention Act, 1967 (“UAPA”). It argued that the High Court in Fahad Shah did not misuse Schenck to assess free speech so as to render it per incuriam, but instead adapted it to set a threshold for justifying arrests and detention under UAPA. Further, it criticised the Supreme Court’s dismissal as potentially hindering other courts from considering valid reasoning.

Reading the analysis led me down a fascinating rabbit hole, exploring a rather distinct yet related question: Whether the invocation of the "clear and present danger" doctrine was normatively sound in this context?

Upon careful perusal, I submit that the High Court's reasoning suffers from two interconnected flaws that extend beyond the mere citation of foreign precedent. First, it commits a false equivalence by conflating a doctrine specifically designed for post-facto speech restrictions with the preventive nature of the UAPA, thereby misaligning the temporal and causal requirements. Second, and more problematically, it attempts a flawed transposition of American free speech doctrine into an Indian anti-terror statute, disregarding not only the Supreme Court’s deliberate rejection of such transplants but also the carefully calibrated evolution of domestic anti-terrorism jurisprudence.

1. False Equivalence

The High Court's invocation of the "clear and present danger" test in interpreting Section 43D(5) of the UAPA marks a significant departure from the legislative intent of the statute. While Sekhri contends that the court merely borrowed evocative prose from Schenck to express a proximity requirement for arrests, this interpretation understates the conceptual confusion such borrowing creates. Although he is right in observing that the High Court was "crafting an idea to address a problem using remnants of old concepts from different contexts," the Court's seemingly harmless transplantation nonetheless obscures a fundamental category error.

For what must be understood is that the "clear and present danger" test, even when repurposed, carries with it specific analytical assumptions about causation and imminence that are fundamentally at odds with the preventive nature of the UAPA framework. As evidenced in paragraph 31 and 32 of the High Court's judgement:

"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.”

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." [Emphasis mine]

This borrowed standard implicitly requires a degree of temporal and causal proximity that the UAPA deliberately eschews. When the High Court states that authorities must "justify the arrest on the anvil of 'clear and present danger' of the accused to society at large" it imposes a reactive paradigm on a preventive statute. This, I submit, is not merely a semantic sleight-of-hand—but much rather represents a substantive reconfiguration of the UAPA's operational logic. The specific importation of Schenck's framework introduces evidentiary and temporal requirements that could effectively nullify the UAPA's preventive capacity, particularly in cases involving long-term planning or preparatory acts.

This is precisely why the UAPA deliberately moves away from such immediate temporal requirements, allowing intervention based on reasonable grounds even when threats aren't imminent.

2. Flawed Transposition

The High Court's use of Schenck's language to express established principles about justified arrests overlooks the dangers of decontextualised legal borrowing. While Sekhri quite rightly notes that "there is no complete ban on citing a case that may have been disagreed with or frowned upon in the past" so as to render it per incuriam, nevertheless I argue that the manner of citation matters. Otherwise, it risks oversimplifying the nuanced jurisprudential reasons why Indian courts have rejected the "clear and present danger" test in cases like Babulal Parate v. State of Maharashtra, State of Madras v, V.G. Row and more recently in Arup Bhuyan v. State of Assam.

Importantly, the High Court's judgement does more than merely reference Schenck; it attempts to transpose a specific legal test designed for post-facto speech restrictions into the realm of anti-terror legislation. This, in turn, creates two fundamental problems. First, it muddles the distinct jurisprudential frameworks governing speech restrictions and terrorism. Second, it disregards the Supreme Court's careful development of native doctrine around preventive detention, which has evolved to balance security imperatives with constitutional rights in India's specific context (As Shastri J. emphasised in V.G. Row, India's constitutional scheme demands "different techniques and approaches" that account for our unique security challenges).

The flawed transposition becomes even more apparent when we trace how the borrowed test would operate in practice. Under Schenck, the "clear and present danger" framework was designed to evaluate whether speech had sufficient proximity to harm to justify restriction. This required courts to analyse: (1) the immediacy of potential harm, (2) the direct causal link between speech and danger, and (3) the substantive likelihood of the feared outcome.

When the High Court attempts to transpose this framework to UAPA arrests, it reveals both the appeal and limitations of such doctrinal borrowing:

First, while the "clear and present danger" test might seem useful for cases like Mr. Shah's, where a significant temporal gap exists between alleged acts and arrest. It creates an impossible ‘temporal paradox’—requiring authorities to show a "present" danger for actions specifically aimed at preventing dangers from becoming "present." This framework might work when questioning decade-old publications but becomes incoherent when applied to UAPA cases more broadly. While the High Court's instinct to question the necessity of arrest for historical acts is sound, importing Schenck's test unnecessarily complicates what could be a straightforward proportionality analysis.

Second, even in cases involving journalistic activities, the causal chain analysis from Schenck proves problematic. The High Court's attempt to require a direct link between past publications and present security threats, while protective of press freedom, fails to account for how written content might contribute to security risks over time through gradual radicalization or by providing operational intelligence to hostile actors. The "clear and present danger" framework's insistence on direct causation could blind courts to these more subtle, long-term security concerns while offering little additional protection against arbitrary detention that existing proportionality standards don't already provide.

Thus, while the High Court's judgement admirably attempts to protect against arbitrary detention for dated allegations, its choice of doctrinal tool creates more problems than it solves. Rather than importing foreign standards without fully contextualising them—especially from reactive contexts to preventive ones—a more effective approach would involve creating guidelines specifically tailored to address temporal remoteness under UAPA. Such guidelines could consider factors like the ongoing relevance of old publications, shifts in context since their release, and the proportionality of current detention. This approach would better serve the Court’s objectives while preserving doctrinal coherence.

To Conclude

Section 43D(5) of the UAPA, while imposing strict conditions for bail, does not override the fundamental requirement that arrests must be necessary and proportionate. In Fahad Shah, the High Court could very well have examined whether the significant temporal gap between the alleged journalistic activities and the arrest met these essential standards (given the decade-long gap between Mr. Shah’s alleged acts and his arrest) without resorting to the analytically incompatible 'clear and present danger' test.

In Union of India v. K.A. Najeeb, the Supreme Court has already established that statutory restrictions like Section 43D(5) cannot displace constitutional safeguards enshrined under Part III in evaluating preventive detention:

18. “It is thus clear to us that the presence of statutory restrictions like Section 43­D (5) of UAPA per­ se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43­D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

This approach would have allowed the court to conclude that an inordinate delay between the alleged acts and the arrest, without compelling justification, suggests either a diminished need for preventive detention or an abuse of process—both warranting bail. Such reasoning would not only have led to the same conclusion but also promoted a more principled development of bail jurisprudence under special legislations like the UAPA, ensuring doctrinal consistency.