Monitor reporter’s trial opens: Why India treats journalists as terrorists

Kashmiri journalist Fahad Shah appeared before a packed Jammu courtroom on April 13 via video conference, looking frail and frustrated. Editor of The Kashmir Walla and longtime contributor for The Christian Science Monitor, Mr. Shah has spent more than a year in jail, detained on various terrorism charges. The primary case stems from an article published on his site 11 years ago. Police say the opinion piece provoked terrorism in Kashmir, a heavily militarized Himalayan region that India has systematically stripped of its freedom in recent years.

On screen, Mr. Shah stood next to scholar Aala Fazili, author of the offending article. Both are booked under the draconian Unlawful Activities (Prevention) Act (UAPA), often referred to as India’s terrorism law, and have been waiting months for their day in court. 

Proceedings lasted about 20 minutes, and Mr. Shah did not get a chance to speak. Instead, he pleaded not guilty in a statement prepared from Kot Bhalwal jail. The trial picks back up May 22, when witnesses will be called to testify.

The start of Mr. Shah’s trial draws attention to India’s far-reaching anti-terror law. Indeed, Mr. Shah is one of several journalists waiting for justice under the stringent UAPA, which critics say uses national security fears to sidestep justice and silence government critics. Kunal Majumder, India representative for the Committee to Protect Journalists, says the number of incarcerated journalists in India is at a 30-year high, and the majority are being tried or investigated under UAPA.

“This clearly indicates a pattern,” he says. “In some instances, like with Mr. Shah, multiple investigations under UAPA have been opened against journalists, making it immensely difficult for them to get bail.”

Journalist Geeta Seshu from Free Speech Collective has seen UAPA used liberally against journalists since 2018.

“They operate without a shred of evidence, provide little or no chance of bail, and finally, after long years of struggle, result in poor conviction rates,” she says. “Each instance erodes press freedom, case by case.”

An escalating trend

In 2010, the right-wing Bharatiya Janata Party (BJP) booked journalist Shahina KK under UAPA after she interviewed two witnesses in the bomb blast that took place in Bangalore in 2008. Her report highlighted lapses in the police investigation. 

“Shahina KK was one of the first journalists in the country who was accused of violating UAPA in relation to her reporting,” says Mr. Majumder. “She is still trying to clear her name after 12 years.”

Media watchers say this trend has ramped up in recent years. In 2018, photojournalist Kamran Yousuf was arrested under UAPA. He was acquitted by the terrorism court last year. Rupesh Kumar Singh of Jharkhand was arrested twice under UAPA for alleged Maoist links – first in June 2019, then again in July 2022 under the same charges. 

In 2020, journalist Siddique Kappan from Kerala was arrested while on his way to report on the gang rape and murder of a Dalit woman in Uttar Pradesh. The police arrested and charged him under UAPA before he could report the story. That same year, at least three other journalists were charged under the UAPA. 

In October 2021, photojournalist Manan Ahmad Dar was arrested under terrorism charges, though he recently got bail, with the court calling the charges against him “mere assumptions.” It can take years to get bail under the UAPA, an act which criminal lawyer Areeb Uddin Ahmed argues does not follow normal tenets of India’s justice system. He says provisions in the UAPA make it notoriously difficult for courts to grant bail. 

“As a principle of law, bail is a rule not an exception. Whereas in this act, bail is a rare exception,” he says. “The sole objective is to restrict their personal liberty.”

Mr. Shah has posted bail twice for UAPA-related charges, only to be immediately re-arrested under the same law. From February to May last year, he was arrested a total of five times.

Due process or tool of control?

Supporters of the anti-terror law reject accusations of abuse, saying Mr. Shah’s case follows due process.

“When you misuse your cover as a journalist to work against the state, militate against the state, to create discontent against the state, obviously the state is going to react,” says Kanchan Gupta, senior adviser with the Ministry of Information & Broadcasting.

"It is absurd to suggest that journalists as a class are being targeted,” he adds. “Journalists in India are not above the law. Journalists are not some entitled lot who will say that the law does not apply to them.”

But to Free Speech Collective’s Ms. Seshu, the connection between the UAPA usage and government intimidation is clear.

“In the recent past, anti-terror laws have been used against journalists who cover conflict, which is one of the most difficult of journalistic tasks,” she says. “Terror cases against them seek to de-legitimize their work … and act as a warning to all journalists to stay in line.”

This kind of legal persecution “takes a toll,” she adds, not just on the accused but their entire professional network. 

The Kashmir Walla staff have certainly felt Mr. Shah’s absence. The team has juggled court appearances and daily reporting duties, all while worrying for their safety. Some journalists have left the industry altogether. Others have been more careful about where and what they report. 

“The message it sent to journalists was to self-censor,” says one local journalist who wished to remain anonymous for their protection. “Fahad’s case, unfortunately, ensured that the message was well received. No one reports critical stories anymore.”

There has been one heartening development since Mr. Shah’s trial kicked off – on Thursday night, the High Court of Jammu and Kashmir released its judgment quashing the use of India’s Public Safety Act (PSA) to detain the editor. Local police invoked the PSA on March 15, 2022, claiming Mr. Shah was filled with hatred against the union of India, but the court found these claims baseless. The court observed that police “used both the expressions ‘Public Order’ and ‘Security of the State’ with a wavering mind and uncertainty,” adding that the order “cannot sustain the test of law.”

Soutik Banerjee, an advocate assisting Mr. Shah’s legal team, describes the ruling as a positive development, writing in a statement that it “exemplifies that there has been arbitrary and malafide use of extraordinary laws against Fahad. … Only time will tell if UAPA charges will also apply.”

Editor’s Note: Fahad Shah is a regular Monitor contributor. We, along with other news outlets, are advocating for his release. You can find our joint statement here.