With Arrest of Editor After Reporting Both Sides Of Story, Govt Escalates Criminalisation Of Journalism In Kashmir

ARTICLE 14 CORRESPONDENT
 
18 Feb 2022 28 min read  Share

As the Jammu and Kashmir government stamps out the last vestiges of the free press in Kashmir, the arrest and incarceration of website editor Fahad Shah arrest marks an unprecedented level of intimidation, with security forces raiding homes of journalists, calling them in frequently for questioning, pressurising families and filing criminal cases. Bylines and tweets have disappeared, and some reporters have fled Kashmir.

Editor Fahad Shah's arrest on 4 February 2022 marked an unprecedented level of and escalation in the intimidation of journalists/UMER ASIF

Srinagar: Two weeks have passed since Kashmiri journalist Fahad Shah was arrested on 4 February at a police station in Pulwama, an hour’s drive from Srinagar, where he worked as a freelance reporter and the editor-in-chief of an independent news website The Kashmir Walla


The day after he was arrested—after publishing a story that quoted the police and the family of a teenager killed in what officials said was a firefight—Shah was seen returning to the police station from the Pulwama district court in handcuffs. 


Shah’s arrest marked an unprecedented level of and escalation in the intimidation of journalists, with raids on homes, frequent questioning and pressure on families. The persecution has been emotionally and financially draining on a young crop of reporters. 


Many journalists feel they have no choice but to censor themselves. Some have left Kashmir. Others are looking for opportunities in other cities. All those who spoke to us for this story did so on condition of anonymity for fear of police attention. 


Colleagues who visited Shah told Article 14 that he was shaken, aching to get out and adamant that his parents not see him behind bars. His initial 10-day detention extended on 14 February for seven days, Shah spoke of the police lockup getting “very cold” at night during the receding winter. 


With three police cases registered against him in less than two years, interrogations and a detention at gunpoint, Shah, 33, was not oblivious to the danger of arrest, a close friend of his told Article 14, speaking on the condition of anonymity. 


The friend said that Shah had a wry sense of humour and may have even cracked a few dark jokes about its inevitability, but he never let himself believe that it would happen. He said that Shah was adapting to the police summons and interrogation over his stories, and convinced himself that things would get no worse. 


To not dwell on the worst-case scenario is, in some ways, many journalists said, a survival mechanism for those trying to report in the middle of one the worst crackdowns on the media in Kashmir. 


35 Journalists Face Police Attention

Since the government of Prime Minister Narendra Modi rescinded Jammu and Kashmir’s (J&K) autonomy on 5 August 2019 and demoted India’s only Muslim majority state to a union territory, at least 35 journalists in Kashmir have faced police interrogation, raids, threats, physical assault, or criminal cases for their reporting, according to the New York-based Human Rights Watch, an advocacy group. 


The crimes journalists are accused of range from terrorism and sedition, why can carry life sentences, to criminal conspiracy, rioting, and incitement to cause fear and harm the public. 


Like so many journalists in Kashmir, Shah rarely discussed how dangerous things were getting with his family. They knew about the police summons but were shocked by his arrest, a relative told Article 14.  “We were worried, but this is his profession,” said the relative. “Journalism is not a crime and so we never told him to leave it.”


Despite concern and condemnation expressed by Kashmiri political leaders,  a host of institutions, including press bodies and the United Nations, and the explosion of outrage on social media that follows each arrest, the crackdown has escalated. 


Even the Kashmir Press Club, a safe space where journalists worked since 2018, was closed after the government cancelled the allotment of its premises in January. The 2020 Media Policy of the J&K government says that any individual or group reporting in a manner deemed “unethical or anti-national” will be “disempanelled” and face legal proceedings.


Ashok Swain, professor of peace and conflict research at the Sweden-based Uppsala University, said with growing international concern, particularly in the West, about India’s deteriorating state of democracy and gross violations of minority rights, the Indian government, to strengthen its ties with the United States, doesn’t want the Kashmir story to be available to the international media and activist groups. 


“This has led the regime to follow a policy of silencing Kashmiri journalists,” said Swain. 


Article 14 sought comments from inspector general of police, Kashmir, Vijay Kumar, and director general of police, J&K, Dilbagh Singh, on the arrest of Kashmiri journalists and press freedom in Kashmir. We will update this copy if they respond. 


In an interview to the Deccan Herald in April 2020 after two journalists were booked under the UAPA, Kumar said the J&K Police had the highest regard for the freedom of the press. In December 2021, in an interview to The Economic Times, Kumar said that since 2016, police have registered 49 cases against journalists, including 17 cases of criminal intimidation, 24 cases of extortion and eight cases of UAPA for glorifying or participating in terrorist activity. 


“Yes, questioning and summoning is done sometimes to get things clarified,” said Kumar. “If we get somebody’s digital evidence, we have to cross check that.”


‘Despite Anti-India Stance, Media Treated With Kid Gloves’

Lt Gen (retd) Syed Ata Hasnain, who  commanded the Indian Army's 15 Corps in J&K, and is the Chancellor of the Central University of Kashmir, said that the media in Kashmir never adopted a “nationalistic approach” that “could have helped ensure that Pakistan’s proxy war could be effectively countered,” but despite its “anti-India stance,” it was still treated with “kid gloves.” 


“The current policy probably considers some elements of the media to be toeing an approach not conducive to the integration it (the government policy) seeks," Lt Gen Hasnain told Article 14. "Hence it's likely that selective elements with an anti-national bias are being investigated.”


Kashmiri journalists find nothing selective about the ongoing crackdown against the media.


“The government is unwilling to listen to any argument and has become intolerant even to a single word of criticism,” said Anuradha Bhasin, the executive editor of  The Kashmir Times, J&K’s oldest English-language newspaper, which went out of circulation in Kashmir in October 2020 after its office in Srinagar was sealed by the government.


“Journalists were sandwiched between militants and the state when Kashmir’s armed insurgency broke out in the 1990s. Our colleagues were killed, kidnapped and intimidated but the difference was that diplomatic channels were open with the government at various levels earlier,” she said. “They’re now completely shut.”


A Slew Of Criminal Cases 

Shah was arrested after a 31 January 2022 first information report (FIR) filed at the Pulwama police station said “some Facebook users and news portals are uploading photographs/videos that can provoke the public to disturb law and order” and were “tantamount to glorifying the militant activities and dent the image of law enforcing agencies besides causing disaffection against the country”. 


The FIR invokes the Unlawful Activities (Prevention) Act (UAPA) 1967, India’s draconian anti-terror law, specifically section 13—takes part in or commits, or advocates abets or incites the commission of, any unlawful activity—punishable with up to seven years in prison and a fine. 


The FIR also invokes section 505 of the Indian Penal Code 1860—statement conducting to public mischief—punishable with up to three years in prison or with a fine or both, and section 124-A (sedition), punishable with imprisonment of up to three years to life, with or without a fine. 


Over the past two years, Shah was summoned for questioning for stories related to operations carried out by security forces in Nawakadal in Srinagar, and about the Indian army forcing a school in Shopian to hoist the national flag on Republic Day. 


On 5 February, the J&K Police tweeted that in addition to the latest FIR 19/2022, Shah was named in two other cases “glorifying terrorism, spreading fake news and inciting general public for creating L&O (law and order) situations”.


A month before Shah was arrested,  Sajad Gul, a journalism student and a trainee reporter with The Kashmir Walla, was arrested on 5 January under IPC sections 120B (criminal conspiracy), 153B (imputations, assertions prejudicial to national integration) and 505B (fear or alarm to the public) for tweeting a video of a family shouting slogans critical of India after their family member Salim Parray,  allegedly a commander of the Lashkar-e-Taiba militant group, was killed by security forces on 3 January. 


A day after, the district court at Bandipora granted him bail on 15 January, the police detained him under the Public Safety Act, 1978, which allows for a person to be detained without trial for two years, and moved him to Kot Bhalwal jail in Jammu, around 250 km south of his home in Bandipora.


The Accusations: From Terrorism To ‘Public Mischief’

Since August 2019, cases have been filed against at least four journalists—Fahad Shah, Gowhar Geelani, Manan Gulzar Dar, Masrat Zehra under the  UAPA. (UAPA cases were filed against Kamran Yousuf and Asif Sultan in 2018).  


At least two journalists, Qazi Shibli and Sajad Gul, have been detained under the PSA. At least one, Shah, has been accused of sedition. At least eight journalists—Shah, Yashraj Sharma, Junaid Mir, Shibli, Sajid Raina, Sajad Gul, Umsair Gul, Peerzada Ashiq—have been accused under various sections of the IPC, primarily those relating to provoking a riot and causing public mischief


On 19 December 2019, the J&K police thrashed two journalists—Anees Zargar and Azaan Javaid—when they were covering a student protest in Srinagar. On 18 September 2020,  Srinagar-based independent journalist Auqib Javeed was assaulted, abused and threatened inside “Cargo”—an infamous interrogation centre in Srinagar—for his report on the intimidation of social media users critical of the government by the police.


Senior journalist and former president of the Editors’ Guild of India Rajdeep Sardesai told Article 14 that putting journalists under pressure by jailing them and taking over the Kashmir Press Club signals that “something is seriously wrong in the way the J&K government is looking at the media".  


Referring to Shah’s case, Sardesai said invoking UAPA against journalists was "unacceptable". 


“It is very unfortunate, and it must stop now. Writing a story is not a criminal offence. Journalism is not a crime as long as you report it accurately and fairly,” said Sardesai. “You can’t say that because of the so-called national security interest, Kashmir is going to be treated totally differently.”


‘This Looks Like An Undeclared Emergency’

Geeta Seshu, the co-founder of Mumbai-based Free Speech Collective, said that the constant intimidation and harassment of journalists  in Kashmir has taken on “demonic proportions.”


Despite the varying degrees of intimidation across decades, journalists in Kashmir have persisted with challenging authority and exposing human rights violations, said Seshu. 


Even after the unprecedented challenges since August 2019, the beleaguered crop of young reporters persisted with bringing to light excesses by the security forces, and the consequences for families caught between the security forces and the militants in the most militarised region in the world. 


But after Shah’s arrest, most journalists have stopped tweeting and filing stories that the government would call “anti-national.” 


A Srinagar-based journalist, who spoke on the condition of anonymity because he fears reprisal, said he was terrified of what felt like the new normal; incessant summoning of journalists, raids at their homes, and booking them for crimes like terrorism and sedition. “This looks like an undeclared emergency,” he said. 


Another  Srinagar-based independent journalist said the fear was that the next story or tweet could land you in jail.  


“The last few months have been pervaded with fear. The back-to-back incidents have many journalists thinking about their safety,” he said. “We can say that as a collective group, Kashmiri journalists are in the midst of self-preservation.” 


‘He Was Shocked, We Were Numb’

On 1 February, two days after The Kashmir Walla reported on a military operation in Pulwama, Shah received a phone call summoning him to a police station in the southern district of Kashmir.  


Three other journalists—Kamran Yousuf, Majid Haydri and Vikar Syed—were summoned a day earlier by the police in Pulwama. They were allowed to go home.  Shah too was allowed to go home, but he was summoned again on 4 February for “recording a statement,” his colleagues at The Kashmir Walla told Article 14


This time, Shah, suffering from a cough when he left his office in RajBagh in Srinagar at around one in the afternoon, drove 30 km to Pulwama with two of his friends, his colleagues said. He told them that he would be back soon. 


Shah reached the police station at around four in the afternoon and waited there for over five hours before he was arrested at nine in the night,  one of his friends told Article 14 on condition of anonymity because he feared reprisal from the government. 


In the phone call that he was allowed, the friend recalled Shah telling his parents, “I was summoned to the police station in Pulwama again and they have detained me. Don’t worry.” 


Shortly after he was arrested, Shah was sent for a medical examination and his friends were told to leave. “He was shocked and mentally shaken. We were numb. We had no idea what to do,” the friend said. “It was the toughest time, leaving him there alone.”


What Was The Story? 

On 30 January, in a gunfight in Naira village in Pulwama district, security forces killed four alleged militants holed up in the house of Ghulam Qadir Mir, including his son, Inayat Ahmad Mir, who the J&K Police declared as a “hybrid militant”(people who slip between militancy and routine life). 


Mir family said he was innocent and demanded the return of his body. 


That same day, The Kashmir Walla carried the version of the family in which they claimed that their 17-year-old family member was innocent as well as the police version that the slain man was a “hybrid militant” who refused to surrender before the security forces.  


The report said that IGP (Kashmir) Kumar had told reporters that the slain man was asked to surrender, but he opened fire at the security forces and was killed. Kumar also said Mir’s father would be booked under the UAPA. 


The family’s version was also carried by national and local news websites  (here and here).  On 30 January, after The Kashmir Walla tweeted a video story of the family’s version at 6:59 pm, the Kashmir Zone Police and the Pulwama Police retweeted a video posted at 8.06 pm, in which a family member of Mir is heard saying that he chose to stay with the militants in the house. 


Steven Butler, the Asia program coordinator of the New York-based Committee to Protect Journalists, told Article 14 that reporting both versions of conflicting points was standard journalistic practice. 


“Quoting family members of someone killed by police or security forces is routinely done by journalists all around the world, regardless if what they say contradicts an official police version,” said Butler. “It’s just good journalism.” 


“If quoting a family member is what lies behind Fahad Shah’s arrest, it’s obviously a gross misuse of the UAPA that sharply undermines press freedom,” said Butler. “Nowhere in the world are government and police forces beyond criticism or questioning.” 


Son Of A Policeman To Website Editor 

The son of a  retired policeman, Shah was born and brought up in Soura, a densely populated and volatile locality in Srinagar, which frequently erupts in protests against the Indian government. Security officials have called it “a hotbed of militancy”. 


After the Modi government rescinded J&K’s special status in August 2019, imposed a communication ban, and flooded Kashmir with 10,000 fresh troops to crush any agitation, Soura is where thousands of Kashmiris carried out marches that ended in violent clashes with security forces. To stop policemen from entering with heavy vehicles, the residents turned the area into a fortress by digging up roads and blocking entrances with garbage bins, rolls of mesh and electric wire. 


At least twice over the past few years, the house where Shah lives with family was at the receiving end of  clashes between security forces and Kashmiris; once in July 2018 when he claimed that security forces had fired a tear gas shell into his room, which caused his mother severe breathing problems, and a month earlier, when he claimed that security forces had vandalised his Maruti Suzuki car parked outside. 


Shah’s parents declined Article 14’s request for an interview in connection with his arrest. 


Shah’s childhood friend, who is a journalist, recalled that he was an avid reader of newspapers and books since they were in school, and politically aware from a young age. “If he wanted to do something, he would push for it,” said the friend. 


Shah is the first person in his family to become a journalist. He attended Zulfkar Memorial Educational Institute in Srinagar and completed his graduation in Mass Communication from Govt Degree College, Baramulla.  


Shah was 19 when he started a blog titled The Kashmir Walla to write about his homeland, which, over the course of a decade, grew into a weekly magazine of “politics, culture, business and literature,” and then a news-driven digital outlet that wielded the power of social media. 


In 2013, Shah was one of the six Felix Scholars at the School of Oriental & African Studies( SOAS), University of London, where he did an MA in Critical Media and Cultural Studies.  That same year, he edited “Of Occupation and Resistance”, an anthology of political essays.  


As a freelance journalist based in Srinagar, Shah has written for several publications including Time, Foreign Affairs, The Atlantic, VICE, South China Morning Post, The Diplomat, Spiegel, and Al Jazeera. He is a correspondent with the Christian Science Monitor, based in Boston, US. 


During the #MeToo movement in 2018, Shah was accused of sexual harassment by a woman who said that he had molested her and her friend at a party in 2017. In his statement, Shah called the allegations a “concerted vilification campaign”. 


“The allegations made against me are completely false because I didn’t cross any line of decency with these women,” he said in a Facebook post at the time. There was also a report of inappropriate behaviour towards a former employee of The Kashmir Walla


After floundering for years due to financial constraints, Shah kept The Kashmir Walla afloat, gradually switching from a weekly magazine 

 of essays, features and poetry that he had originally envisioned to a digital outlet of breaking news and ground reports. 


The Last Of The Independent Media

With much of the media in Kashmir buckling under the government crackdown following the abrogation of J&K’s special status in August 2019, Shah positioned The Kashmir Walla as not just an independent outlet in the Kashmir Valley, but one of the last remaining independent media outlets there. 


The page on The Kashmir Walla website asking readers for support says they were sustained by a journalism grant from Reporters Without Borders and the 200 people who subscribed through the membership program he launched in 2020, but they are almost out of funds. 


“Today, we are in need of more than moral support and it is urgent,” Shah wrote on 13 Janurary 2021 . “We have no money to spend on our newsgathering. Our staff don't get fat salaries. The group of young reporters and editors, who form The Kashmir Walla, have been working with the sole purpose to keep writing and reporting freely and passionately.”


“There were times when our salary would get delayed, but we were aware of the situation,” a journalist at The Kashmir Walla told Article 14. “We stayed because no other publication was doing the kind of reporting we were doing.” 


In 2020, Shah won the ‘Human Rights Press Award’, administered by The Foreign Correspondents’ Club Hong Kong. He was nominated for the 2020 Press Freedom Award, administered by the Paris-based Reporters Without Borders (RSF).


“Fahad Shah is regularly summoned for questioning by the police about his reports in order to intimidate and threaten him, but also try to force him to reveal his sources, which he refuses to do under any circumstances," RSF said in its nomination. "He has also been the target of physical assaults."

 

“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,” said the RSF.


Persecution Before Shah’s Arrest 

Shah was first  detained by the J&K Police on 18 June 2017, when his electronic devices were confiscated and he was questioned for seven hours at the “Cargo” interrogation centre. Kashmir Life reported that he was detained in connection with his visit to Pakistan earlier that year.  


At the time, then city police chief Imatiz Ismail Parray said the police were verifying “certain things”, but there was no question of arresting a journalist. 


As The Kashmir Walla hit its journalistic stride in the months after J&K’s special status was abrogated in August 2019,  the summoning and interrogation became routine. 


Shah was summoned on 20 May 2020 following The Kashmir Walla’s  reports (here and here) on an operation carried out by security forces in Srinagar’s Nawakadal area in which two militants were killed and more than a dozen houses were damaged. International and national publications carried similar reports (here and here).


According to a statement from The Kashmir Walla, the police accused Shah of “maligning the police’s reputation” and questioned him for over four hours at the Cyber Police Station in Srinagar before he was allowed to go home.  At the time, Shah said that the coverage was based on undisputed facts, eyewitness accounts, interviews of the civilian population, and the police.  


Less than two months later, on 10 July 2020, Shah was summoned in the same matter. The Kashmir Walla quoted the police summon as follows: “Your presence is necessary for the purpose of enquiry into the offense committed under section 147 (rioting), 307 (attempt to murder), 109 (abetment), 501 (printing or engraving matter known to be defamatory), 505 (statement conducing to public mischief) IPC. 


Altaf Khan, his lawyer in this case, told Article 14 that Shah had applied for and was granted anticipatory bail by the Srinagar District Court. 


On 31 January 2021, the J&K police registered FIR 06/2021 at the Imamsahib Police Station against The Kashmir Walla and The Kashmiriyat, another independent news outlet, after they reported that a school in South Kashmir’s Shopian was “pressurised” by the Indian Army to hold a Republic Day function. In its complaint, the Army said the report was “fake news.” 


A letter by the principal of the school, submitted along with the army’s complaint, said there was “no pressure.”  The FIR, registered on the complaint of an army officer, invoked IPC sections 153 (provocation with intent to cause riot) and 505 (statements conducing to public mischief).


On 2 February 2021, Shah moved the  Shopian District Court for interim relief from arrest. In an order dated the same day, principal district and sessions judge Sikander Azam ruled there was no “exceptional reason and sufficient ground” to grant the journalists anticipatory bail. 


On 4 March 2021, Shah moved the Jammu and Kashmir High Court asking for a stay on the proceedings and quashing of the FIR, stating that in his petition that The Kashmir Walla stands by its reporting and will produce the related evidence. 


“The news item is a piece of news based on facts collected by the newspaper and does not invoke the iron hand of the state to silence the dissenting voices,” the petition said.  According to a statement by The Kashmir Walla, Justice Rajnesh Oswal had issued notice to police and army to submit a report by the next hearing on 2 April 2021.  


Shah's lawyer Altaf Khan told Article 14 that the Army filed a response on 16 December 2021, the proceedings were completed on 15 February 2022 before Justice Javed Iqbal Wani, who scheduled a hearing for final arguments in two weeks. 


On 4 October 2020, Shah and his colleague Burhan Bhat were allegedly detained at gunpoint by the J&K Police when they were returning from a reporting trip to Punjab. 


In a first-person account, Shah said they were surrounded by J&K police “commandos” with assault rifles at the mouth of the Jawahar tunnel linking Jammu and Kashmir, their phones were confiscated and they were ordered to get into a police vehicle. 


When they refused, Shah said a gun-wielding policeman told them: “I will drag you like a dog, you bastard. Cooperate with us or I will show you what we can do.” 


Shah said they were interrogated at the Qazigund police station where the deputy superintendent of police, Mohammed Shafi, asked them to show “self restraint” and report “cautiously” about matters related to “national security.” When Article 14 spoke with him, Shafi denied that Shah and Bhat were detained. 


Replacing ‘Journalists’ With ‘Facebook Users’ 

The FIR 19/2022, registered at the Pulwama police station on 31 January, does not name Shah or identify him as a journalist. It accuses, as we said, “some Facebook users and news portals of uploading photographs/videos which can provoke the public to disturb law and order”. 


When photographer Masrat Zahra, whose work has appeared in  The Caravan, The Washington Post, TRT World, Al Jazeera and The New Humanitarian , was accused of “uploading anti-national posts with criminal intention to induce the youth and to promote offences against public tranquillity,” and booked under the UAPA on 20 April 2020, the J&K police identified her in their statement as a “Facebook user”, not a journalist. 


On 1 January 2022, 28-year-old Zahra tweeted that she had been studying outside India for the past 10 months, but her family “is being routinely harassed by the authorities in Kashmir.” 


“I cannot keep overlooking it and just uselessly hope for it to end,”  she wrote. “I am worried about the safety of my family.” 


“The police didn’t give me any FIR copy,” Zahra told Article 14. “I don’t even know the status of the case right now.” 


When journalist and author Gowhar Geelani, whose work has appeared in Deutsche Welle, The Dawn, The Print, CNN-News18 and The Federal, was accused of  “indulging in unlawful activities through his posts and writings on social media which are prejudicial to the integrity, sovereignty and security of India,” and booked under the UAPA on 20 April 2020, the J&K police identified him in their statement and the FIR as an “individual”, not a journalist.  


Four days later, in response to a petition challenging the FIR and seeking interim protection from arrest,  the J&K High Court denied him interim protection but then granted it in June. 


Earlier this month, an executive magistrate in Shopian summoned Geelani in connection with an incident on 1 February, when a police constable, Shabir Ahmad Wagay, was fired upon by militants. Geelani was accused of “disseminating information” on social media that would have “endangered the life of the individual”. 


It was unclear what the allegedly offending material was or where it was published. On 17 February, the executive magistrate directed the station house officer (SHO) Heerpora to arrest Geelani “in view of non-appearance”, and to produce him before the court on 19 February.


Why Police Avoid Using The Word ‘Journalist’ In FIRs

Manan Gulzar Dar, a 25-year-old photojournalist, whose work has appeared in The Guardian and the Pacific Press Photo Agency, was summoned to the  Batmaloo police station in Srinagar on 10 October 2020 and detained until the National Investigation Agency (NIA) arrested him on 22 October in a conspiracy case and shifted him to Tihar Jail in New Delhi. 


The NIA raided Dar’s house in Srinagar on 13 October and arrested his younger brother, Hanan Gulzar Dar, a college student, on 19 October, who is lodged in Rohini Jail in New Delhi. 


Dar has been accused of “working for terrorist organisations to radicalise and recruit Muslims in J&K to carry out terrorist activities,” his lawyer Satish Tamta told CPJ, and he has been booked under sections of the IPC and the UAPA. On 14 February, Live Law reported that his lawyers, Tara Narula, Tamanna Pankaj and Priya Vats, had sought his release on default bail because the investigating agency had failed to file the chargesheet within 90 days of his arrest. 


His father Gulzar Ahmad Dar, a retired government employee, told Article 14: “We spoke to both of them (Manan and Hanan). They are worried and repeatedly pleading for their innocence but nobody is ready to listen.”


In a statement on 22 October, the NIA did not identify Dar as a journalist but one of the “13 accused persons” in the case, who were “militant operatives of various militant organisations and have been instrumental in providing logistical and material support to militants.” 


Salih Peerzada, Gowhar Geelani’s lawyer, told Article 14 that the police deliberately avoid identifying journalists as journalists. 


“Identifying them as an accused person makes it easier for the police to book them,” said Peerzada. “If they identify journalists as journalists, they become more liable.”


In the interview to the Deccan Herald after Zahra and Geelani were booked under the UAPA in April 2020, IGP Kumar referred to them as “persons,” and said they “have not been booked for any journalistic work of theirs, but because of the reason that they have posted explicitly seditious, incendiary and incriminating texts on social media…”


The High Court’s Mixed Record Of Defending Liberty

In August 2021, in a case involving Jammu-based reporter Asif Iqbal Naik and his story on the custodial torture of Kishtwar resident Akhter Hussain Hajam, the J&K High Court quashed the FIR against him, with Justice Rajnesh Oswal noting that the manner in which the FIR was registered clearly reflected malafides on the part of the police, who chose a “unique method” of silencing the reporter. 


“No fetters can be placed on the freedom of press by registering the FIR against a reporter, who was performing his professional duty by publishing a news item on the basis of information obtained by him from an identifiable source,” the court said


The J&K High Court also quashed an FIR registered by the police in 2020, and a defamation complaint by a politician in 2021, against journalists, with Justice Sanjay Dhar ruling that “fair and frank reporting of events” by the media cannot be curbed, and that freedom of the press “cannot be put in peril.”


While the J&K High Court has ruled in favour of press freedom and provided relief to journalists in these cases, the plight of hundreds of habeas corpus—250 of which were filed before the J&K High Court within seven weeks of 5 August, 2019—show that constitutional protections belie ordinary citizens in Kashmir. 


In September 2020, Article 14 reported that 64% of habeas corpus—literally, produce the body—petitions were pending for more than a year, when the court itself said they must be disposed or resolved within 15 days.


With UAPA Charges, Shah’s Freedom Is Difficult

On 5 February,  the court of judicial magistrate Faizn Nazar remanded Shah to 10 days in police custody and asked the police to file a report by 7 February. That same day, Shah’s lawyer,  Umair Ronga,  filed a bail application in the court of the judicial magistrate. 


On 14 February, Ronga tweeted: “Complete wilful disobedience to court orders. Despite Court directions, no report was filed even after seven days. We are moving  to the special court designated under NIA Act to uphold the majesty of law.”


On 14  February, Shah’s police remand was extended by seven days. 


On 15 February, Ronga filed a bail application before additional sessions judge Manjeet Singh Manhas based in Srinagar.


Delhi-based criminal lawyer Abhinav Sekhri told Article 14 that getting bail at the trial stage in a UAPA case is more difficult because often courts ask the accused to demonstrate that no "prima facie" case exists.  


“The burden ends up being placed on the accused and not the police,” he told Article 14.  (Sehkri has written here and here on how the UAPA is harsher than other laws and why it is difficult to secure bail for the accused).


On challenging the FIR by way of a petition under Section 482 of the  Code of Criminal Procedure, 1973 before a High Court, Sekhri said that the threshold for securing a quashing is extremely high, especially in a UAPA FIR, as courts usually are reticent in interfering with an investigation at an initial stage. 


“It becomes even harder in cases where police allege a conspiracy and claim that they require time to unearth its entire scope,” said Sekhri. “There is always a risk of prejudging which the courts want to avoid.” 


In the two weeks since Shah was arrested, media watchdogs, human right groups and journalists  have condemned the arrest of Shah and urged the J&K government to respect press freedom in Kashmir.


Amelia Newcomb, the managing editor of the Christian Science Monitor, where Shah is a correspondent, told Article 14:  “Kashmiri journalists like Fahad are facing considerable challenges as they work to report on stories of importance in the region. We urge that he be released, and support efforts of other media organisations also to advocate for his release.” 


On 11 February, Shashi Tharoor, member of Parliament from Thiruvananthapuram, while speaking in the lower house, the Lok Sabha, raised the arrests of Shah, Sajad Gul, and Siddique Kappan, a Kerala-based journalist who on his way to report on the alleged rape of a Dalit woman in Hathras, Uttar Pradesh, when he was arrested by the state police on 5 October 2020. 


Tharoor urged the Union Home Minister Amit Shah to facilitate their “immediate and unconditional release in the interest of preserving the freedom of press in our country”.


The reporter of this story requested anonymity, fearing reprisal from the Jammu and Kashmir government.