Fahad Shah’s Re-Arrest After Bail: Why It May Be an Abuse of Legal Process

Before Fahad Shah could be released on interim bail, he was quickly re-arrested in connection with a different case.

Fahad Shah, 33, is an independent journalist and the editor in chief of the Kashmir Walla — a digital news magazine based in Kashmir.

(Image altered by The Quint)

On the evening of 26 February, journalist Fahad Shah’s lawyer was expecting his release, after he was granted interim bail in connection with a UAPA case, when he found out that the editor of The Kashmir Walla had been arrested again.

This time, the arrest was in a different case, the FIR for which had been filed under sections 153 (provocation with intent to cause riot) and 505 (statements conducing to public mischief) of the Indian Penal Code.

That evening, as Shah’s family and friends waited for him to come home, he was handed over by the Pulwama Police to a police party from Shopian. The police said another FIR is pending there and they require him for the same, Shah’s lawyer Umair Ronga confirmed to The Quint.

Shah was on Wednesday, 3 February, remanded to police custody till 8 March and is presently incarcerated at the Imam Sahib Police Station in Shopian. His present place of detention is approximately 100 km away from Shah’s home and his parents have not been able to visit him yet, owing to age-related difficulties, shared Ronga.

Ronga has already moved the court with a plea for regular bail for Shah.

But who is Fahad Shah and what are the cases against him?

The Journalist

Fahad Shah, 33, is an independent journalist and the editor of The Kashmir Walla – a digital news magazine based in Kashmir.

Dubbed a “brave and honest champion of Indian journalism” by the Columbia Journalism Review, Shah’s coverage of February 2020’s Delhi riots won him the 25th Human Rights Press Award. Reporters Without Borders (RSF), too, nominated him for 2020’s Press Freedom Award, stating:

“The outlet that he runs has played an important part in defending press freedom, using innovative methods to keep 8 million Kashmiris informed despite the fact that they have been cut off from the outside world since the territory’s autonomy was rescinded in August 2019.”

They further said that Shah is “regularly summoned for questioning by the police about his reports in order to intimidate and threaten him” and to make him reveal his sources “which he refuses to do under any circumstances”.

Cases Against Him

On 4 February, Shah was arrested over charges of posting purportedly “anti-national” content in connection with The Kashmir Walla’s coverage of a gunfight between government forces and alleged militants. The stringent Unlawful Activities Prevention Act (UAPA) was invoked, but an NIA court still granted interim bail to Shah till 12 March.

However, before Shah could exit jail, he was quickly re-arrested in connection with a case pertaining to the magazine’s report on a Shopian-based school being allegedly pressurised to hold a Republic Day function.

The report dates to 27 January 2021, and the FIR, according to The Kashmir Walla’s own report, was filed as early as on 30 January 2021 – more than a year prior to his arrests.

Inspector General of Police, Kashmir Range, Vijay Kumar has been quoted in media reports as saying:

“Fahad Shah is wanted in three cases for glorifying terrorism, spreading fake news & inciting general public for creating L&O situations: FIR No. 70/2020 of PS Safakadal Srinagar, FIR No. 06/2021 of PS Imamsahib, Shopian & currently has been arrested in FIR No. 19/2022 of PS Pulwama.”

Ronga, however, maintains that his client is innocent in each and every aspect.

“He has not violated any law. The facts, circumstances, show nothing at all. These are baseless cases, they will definitely go. We are just waiting for him to get bailed out, and we will file petitions for quashing these cases in the high court.”

Personal Liberty, Legal Process, & How Higher Courts View Arrests

However, while Shah awaits bail, and as questions emerge over his consecutive arrests, several legal experts seem to agree that his repeated incarceration may be an abuse of the legal process.

Here’s what they said:

“Fahad Shah’s re-arrest right after he received bail is a clear abuse of the legal process intended to deny him personal liberty. This is particularly egregious in the context that this is a journalist who has reported on an incident, which is his job, and he is constitutionally protected as a journalist under Article 19.”

Lawyer and activist Vrinda Grover to The Quint

Article 19, a fundamental right under Part III of the Constitution of India, guarantees freedom of speech and expression to all citizens of the country. The fact that press freedom is implicit under Article 19(1)(a) dates back to the Constituent Assembly debates when BR Ambedkar, on being asked about the same, said that when anyone chooses to write in a newspaper, they are merely exercising their right of expression.

Madiya Mushtaq, a Baramulla-based lawyer, also agrees with Grover, adding:

“There were three FIRs filed against him. If there were merits to all three of them, then the investigations should have run concurrently."

She further explains:

“While the investigation for that (UAPA) case was going on, the investigation could have run concurrently for the other FIR also. It does not have to be consecutive. It does not have to be that only because you see this person is coming out (on bail), you remember you have another FIR that you need to think of and that you need to investigate right now.”

Madiya Mushtaq, Baramulla-based lawyer

Shah’s repeated arrests come even as the higher courts continue to remind the police and the lower courts to avoid arrests.

“Merely because an arrest can be made because it is lawful does not mandate that arrest must be made,” a Supreme Court bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy had observed in August 2021.

The Allahabad High Court had, that same year in Sanjiv Pandey vs State Of UP , reminded the police that the arrest of a person should be the last option and “should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required”.

This is of even more consequence considering that Shah's arrest in this case took place more than a year after the FIR was registered.

Further, the maximum punishment that Shah can get in this case is for Section 505 IPC, which is three years imprisonment. In keeping with the apex court’s Arnesh Kumar judgment from 2014, arrest should be the exception where the offence is punishable with less than seven years imprisonment. Instead of arrest, notice for appearance under Section 41A of the Criminal Procedure Code should be served to the accused in such cases.

According to Vrinda Grover, “This kind of weaponisation of criminal law against journalists in Kashmir is meant to silence the truth, and is meant to deny all of us our right to know what the facts are and to form an opinion – which ought to be the bedrock of any democracy.”

'How Media Can Be Crushed & Forced Not to Function...'

At the same time, Shah’s own lawyer Umair Ronga shares that he has "been seeing such incidents very frequently in the last few months".

"You must have seen the case of Sajad Gul,” he adds.

Sajad Gul, 26, another Kashmiri journalist, was first arrested on 6 January and booked under sections 120B (Punishment of criminal conspiracy), 153B (assertions prejudicial to national integration) and 505 (Statements conducing to public mischief) of the Indian Penal Code (IPC). His arrest came after he had reportedly posted a video on social media of a protest against the killing of an alleged Lashkar-e-Taiba commander.

However, on 15 January, the Jammu and Kashmir district court at Bandipora granted Gul bail. A day later, he was slapped with the Public Safety Act (PSA) and shifted to Kot Bhalwal jail in Jammu.

Incarceration of journalists appears to have become increasingly common in the valley. On 14 February, International Press Institute, Reporters Without Borders, Pulitzer Centre, along with 55 other press freedom and human rights organisations wrote a letter to J&K Lieutenant Governor Manoj Sinha, pointing out that “journalism is an act of public service, not a crime.”

In their letter, they demanded the release of Shah and Gul, as well as all other journalists in jail, including Aasif Sultan (36) and Manan Gulzar Dar (24).

Two years ago, in an interview with Columbia Journalism Review, Fahad Shah had said:

“The world has seen how media can be crushed or forced not to function, so it is more important than ever for people and organisations to support independent media houses, smaller media platforms, and offer opportunities to people who are out there reporting despite every hardship.”