Supreme Court upholds bail for Kashmiri journalist Fahad Shah, critiques High Court’s UAPA ruling

While choosing not to revoke Fahad Shah’s bail, the Supreme Court on Tuesday declared the Jammu and Kashmir and Ladakh High Court’s ruling on bail under the Unlawful Activities (Prevention) Act (UAPA) as legally flawed.

The High Court had previously granted bail to journalist Peerzada Shah Fahad, asserting that a defendant could be granted bail if they posed no “clear and present danger” to society.It also ruled that diminishing India’s global reputation does not constitute a terrorist act under Section 15 of the UAPA.

The Supreme Court’s bench, led by Justices Bela Trivedi and Satish Chandra Sharma, labeled the High Court’s decision as per incuriam, meaning it should not be used as legal precedent, but chose not to revoke Fahad Shah’s bail, reported Live Law.

The High Court had cited the 1919 U.S. Supreme Court case Schenck v. United States to emphasize the necessity of proving a “clear and present danger” for UAPA arrests.

The US Supreme Court while addressing the limits of freedom of speech recognized that while the prohibition against abridging free speech is significant, it is not absolute and may be subject to circumstances.

The Court stated that for a speech to not be protected, the central issue is whether the words create a “clear and present danger” of causing substantive evils that Congress has the authority to prevent.