Srinagar: A court in Jammu has granted bail to Ph.D. scholar Abdul Aala Fazili, nearly three years after he was arrested under the stringent Unlawful Activities (Prevention) Act (UAPA) over an article he allegedly wrote in 2011. The court ruled that Fazili's detention was not justified, as there was no evidence linking his writing to acts of terrorism.
"There is no call to arms by the author, no incitement to an armed insurrection against the state, nor incitement to violence of any kind—much less acts of terrorism or attempts to undermine the authority of the state through violence," read the order pronounced on Saturday by Madan Lal, 3rd Additional Sessions Judge.
Fazili was arrested in April 2022 after the Jammu and Kashmir State Investigation Agency (SIA) claimed his article, "The Shackles of Slavery Will Break," published in The Kashmir Walla, was "highly provocative, seditious, and intended to create unrest in Jammu and Kashmir." However, the court found that the government itself had ignored the article for over a decade, which indicated that it had not posed an immediate or long-term threat to law and order.
"The government neither took notice nor any action on the said article from November 6, 2011, till April 4, 2022, from which it can be inferred that this article has neither affected law and order nor aggravated militancy-related incidents," the court stated.
The Jammu and Kashmir High Court had previously observed that there was no evidence to suggest that the article led anyone to commit violence. "There is no evidence on record. The entire charge sheet (filed by the SIA in the case) is silent with respect to this fact—that somebody has chosen the path of violence merely because the article was provocative in nature. The charges levelled against the applicant (Fazili) are based on assumptions, without any legal foundation, and he has been languishing in judicial custody since April 17, 2022," the court noted.
The prosecution relied heavily on the testimony of Yash Raj Sharma, an employee of The Kashmir Walla who was hired in 2018—seven years after the article was published. Since the magazine only publishes pieces after author verification, Sharma had claimed that Fazili was the author.
But the court rejected this claim, finding Sharma's testimony to be not credible: "The prosecution/respondent is relying upon the statement of only one witness, Yash Raj Sharma, who was appointed by accused No. 2 in the year 2018 as an employee of The Kashmir Walla, which published the offending article. His statement cannot be relied upon regarding an occurrence that took place in 2011."
Despite the serious charges under UAPA, the court ruled that Fazili could not be indefinitely detained based on assumptions. The judgment cited Supreme Court precedents emphasising the need for a fair balance between national security and individual liberty.
"'Bail is the rule and jail is the exception' is a settled law. Even in a case like the present one, where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good, with the only modification that bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the court cannot decline to grant bail," the court stated, quoting the Supreme Court's ruling in Jalaluddin Khan vs. Union of India (2024).
The court also referenced Vernon Gonsalves vs. State of Maharashtra (2023), stating: "Mere possession of literature—even if it inspires or propagates violence—by itself would neither amount to a 'terrorist act' within the meaning of Section 15 of the Act, nor any other offenses under Chapters IV and VI of the Act."
While granting bail, the court imposed a set of strict conditions to ensure Fazili remained under surveillance and did not attempt to evade legal proceedings.
Fazili has been directed to furnish a personal bond of Rs one lakh and two solvent sureties of the same amount. Furthermore, Fazili must report once a week to the nearest Mahore police station. In order to guarantee his continuous involvement in court procedures, he must also show up for all scheduled hearings. Fazili has been explicitly barred from leaving the Union Territory of Jammu and Kashmir without prior court approval. Additionally, he shall surrender his passport before this Court, if issued but not already surrendered and shall not involve in any criminal activity leading to the registration of fresh FIR, if they do so, their bail shall be treated as cancelled.
The bail order's restriction on Fazili contacting prosecution witnesses who have not yet testified is an important component. Any attempt to coerce or threaten witnesses would be viewed as a grave violation of bail terms, the court emphasised and may result in his re-arrest. "It is to be noted here that 10 out of 44 witnesses have been recorded by this Court so far," the order read.
Lastly, Fazili is required to provide a functioning mobile phone number to authorities and must ensure that it remains active at all times. The court made it clear that any violation of these conditions would lead to the immediate revocation of bail and Fazili's re-incarceration.
"In view of the court, this is a deserving case in which the accused, at this stage of the trial, should be released on bail," the judge stated in the final order.
Fazili was released from Kot Bhalwal Jail in Jammu and returned home on Tuesday evening. His release comes over 15 months after Fahad Shah, editor of The Kashmir Walla—the Srinagar-based digital magazine that published the disputed article—was granted bail by the High Court following his arrest by the SIA in connection with the case.
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