‘Pelting stones in Jammu and Kashmir not an ordinary act,’ says Supreme Court

The Supreme Court on Monday turned down Kashmiri separatist Shabir Ahmed Shah’s plea seeking a direction to NIA for supply detention orders against him, saying that he could approach the Jammu and Kashmir Government for it.

“Did you ever ask them to provide those orders to you or you’re asking before us for the first time? You should have asked the government to provide you (documents). Why in bail proceedings? You ask the government to provide you the details,” a bench of Justice Vikram Nath and Justice Sandeep Mehta told senior counsel Colin Gonsalves, who represented Shah.

Solicitor General Tushar Mehta objected to Shah’s demand, saying successive governments detained the separatist leader for his “association with Pakistan” for different time periods and NIA did not have those 55-year-old orders.

Stating that Shah has been detained for 39 years on a common charge, namely, speeches followed by stone pelting, Gonsalves urged that detention orders for the last 10 years may be given. “Whatever you have, give me,” Gonsalves said.

However, Mehta said, “I am NIA; I have not passed any detention order.”

“Pelting of stones in this state (UT of J-K) is not a very ordinary action,” said the bench which had earlier refused to grant him interim bail in a terror funding case.

Finally, the bench deferred the hearing for three weeks to enable NIA to respond to Shah’s latest affidavit.

“Mr Tushar Mehta, learned Solicitor General appearing for the respondent-NIA, prays for three weeks’ time to file response to the rejoinder affidavit filed by the petitioner, as according to him some new facts and documents have been annexed with the rejoinder affidavit. Time, as prayed for, is granted. List the matter after three weeks,” the bench said in its order.

Shah — the chairman of Jammu and Kashmir Democratic Freedom Party (JKDPF), an unlawful organisation — was arrested by NIA on June 4, 2019. He has challenged the Delhi High Court’s June 12 order denying him bail in the terror funding case.

In 2017, NIA registered a case against 12 persons on the allegations of conspiracy for raising and collecting funds for causing disruption by way of pelting stones, damaging public property and conspiring to wage war against the Central Government.

Shah allegedly played a “substantial role” in facilitating a separatist or militant movement in Jammu and Kashmir by inciting and instigating the general public to sloganeering in support of the secession of J-K; paying tribute to the family of slain terrorists or militants by eulogising them as “martyrs”; receiving money through hawala transactions and raising funds through LoC trade, which were allegedly used to fuel subversive and militant activities in J-K.

The high court had said the Constitution provided for a right to freedom of speech and expression, but it also placed reasonable restrictions such as public order, decency, morality or incitement to an offence.

“This right cannot be misused under the garb of carrying out rallies wherein a person uses inflammatory speeches or instigates the public to commit unlawful activities, detrimental to the interest and integrity of the country,” the high court had said.

It had dismissed Shah’s appeal against the trial court’s July 7, 2023, order refusing him bail. It also rejected Shah’s alternate prayer seeking “house arrest” given the serious nature of the charges. The court had noted that he was the chairman of an unlawful organisation, JKDPF.

The high court had examined a table elaborating on the 24 pending cases against Shah, indicating his involvement in a number of criminal cases of a similar nature and relating to conspiring for the secession of J-K from the Union of India.