Labelling J&K 'Occupied Territory', Calling For Its Secession From India Is An 'Unlawful Activity' Under UAPA: J&K&L High Court

The Jammu & Kashmir has held that advocating for the secession of Jammu & Kashmir from the Union of India constitutes an "unlawful activity" under the Unlawful Activities (Prevention) Act, 1967, and squarely attracts Section 13(1) of the Act.

A Division Bench of Justice Sanjay Parihar and Justice Sanjeev Kumar set aside the trial court's order discharging the accused in a case involving allegations of raising pro-secession slogans after Friday prayers in Bandipora in March 2015.

The High Court observed that the trial court erred in holding that mere slogan-shouting, in the absence of violence, does not fall under the UAPA provisions.

It observed that "The view taken by the Trial Court is palpably wrong. What Section 13(1), read with Section 2(1)(o) of the UAPA, punishes is not merely violent acts, but inciting, advocating, or abetting unlawful activity, which includes advocacy for secession from the Union of India."

The court noted that the FIR in question alleged that the respondents were inciting the public to "take up a struggle to separate Jammu & Kashmir from India," and branding the territory as "occupied." The statements of witnesses recorded under Section 161 CrPC supported the allegations and confirmed that the accused were exhorting people to seek separation.

The Court held that such statements prima facie established an "unlawful activity" as defined in Section 2(1)(o) of the UAPA and punishable under Section 13(1) of the Act.

The bench said, "The respondents were not merely shouting slogans. They were inciting people to undertake a secessionist struggle, which is the very mischief UAPA seeks to prevent."

The trial court had discharged the accused by relying on the Supreme Court's ruling in Balwant Singh v. State of Punjab, (1995) where the Court held that mere slogan-shouting, in the absence of incitement to violence or public disorder, would not constitute sedition.

However, the High Court found the reliance misplaced:

It said that “The facts in Balwant Singh were entirely different and pertained to charges under Sections 124A and 153A IPC. The concept of 'unlawful activity' under UAPA is distinct and broader. The prosecution in this case was still at an early stage, and the trial court could not have pre-judged the evidence,” the Bench noted.

Restoring the chargesheet, the Court directed the trial court to proceed with framing charges under Section 13 of the UAPA against the respondents and continue with the trial in accordance with law.

It held that “the impugned order suffers from non-application of mind and erroneous interpretation of the law,” allowing the appeal filed by the prosecution.

APPEARANCE:

Maha Majeed, Assisting Counsel vice Mr. Faheem Shah, GA. for Petitioners

Case-Title: UT of J&K vs Ameer Hamza Shah, 2025

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