'Offering Funeral Prayers for a Slain Militant Not Anti-National': J&K and Ladakh HC

The court made the remarks while upholding the grant of bail to two men booked under the UAPA, noting that personal liberty is the most precious right guaranteed under the constitution.

New Delhi: The Jammu & Kashmir and Ladakh high court, in a September 1 judgment ruled that the public at large offering funeral prayers for a slain militant cannot be construed as ‘anti-national’ activity to the extent that they are deprived of their personal liberty as guaranteed by Article 21 of the Constitution, LiveLaw has reported.

The court’s remarks came while it was hearing two appeals filed by the government against the grant of bail to two applicants by a special Unlawful Activities (Prevention) Act (UAPA) court.

The order also comes in a scenario where the J&K government has stopped handing over bodies of armed militants to their families and has been burying them in remote locations, citing COVID-19 concerns. In 2020, around 140 militants were buried in such locations, mostly in northern Kashmir, a report by Siddiqa Ahmed noted.

A report from 2020 by Umer Maqbool for The Wire had quoted villagers of Gantamulla who said they had “silently buried” more than 100 militants in a graveyard meant only for unidentified and non-local militants, as security forces believed that their funerals in populated areas of Kashmir could trigger law and order problems.

Instances of police in the Valley booking attendees of militants’ funerals have also been reported.

Case background

Following the killing of a local Hizbul Mujahideen militant Mudasir Jamal Wagay by security forces in November last year, one Mohammed Yusuf Ganai allegedly provoked villagers in a Kulgam village to perform ‘Gaibana Namazi-Jinaza’ (funeral prayers in absentia) for the slain militant.

Upon this “provocation”, Javaid Ahmed Shah, the Imam of Masjid Sharief, offered Janaza (funeral prayers). It is alleged that the sentiments of those in the assembly were incited during janaza as they were “urged to continue to struggle till freedom”.

As such, a first information report (FIR) was registered against 10 individuals, including the two respondents, at the Devsar police station and they were charged with offences under Section 13 of the UAPA.

The special judge, Anantnag, granted bail to the two separate applicants on February 11 and 26 of this year, respectively.

The government-appellant contended that the UAPA court, while granting bail, had not considered that there was sufficient evidence to connect all the accused (including the respondent in the case) with the commission of the offence.

Also read: Is the Supreme Court’s Order Granting Bail To UAPA Accused a Silver Lining?

Further, the government argued that incriminating material in the police’s case diary explicitly establishes the prima facie involvement of the accused in the commission of the offence.

Finally, the counsel for the government said that Section 43-D of the UAPA places a bar on the grant of bail to the accused when it can be reasonably believed that the accusations against them are prima facie true.

The relevant point under Section 43-D of the UAPA reads: “…no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release.”

However, the court maintained that Chapters 4 and 5 of the UAPA deal with accusations of terror activities and not saying funeral prayers. As such, the bench of Justices Ali Mohammd Magrey and M.D. Akram Chowdhary said that the trial court was right in its impugned order granting bail to the two respondents, noting that personal liberty is the most precious right guaranteed under the Constitution.

“Offering of funeral prayers of a killed militant by the public at large, even at the instance of the respondents herein, who are stated to be elderly people of their village, cannot be construed to be anti-national activity of that magnitude so as to deprive them of their personal liberty as guaranteed under Article 21 of the Constitution of India,” Live Law quoted the order as saying.

The court noted that nothing incriminating against the respondents has been found through the course of the investigation so as to deny them the grant of bail. It also noted that the bar on bail under Section 43-D of the UAPA is not attracted in the case.

Remarking that it found no grounds for interfering with the impugned order of the special judge, Anantnag, the court dismissed both the government’s appeals.

The J&K administration has also recently moved to penalise government workers with family or other connections to members of banned outfits.

In August, after terminating nearly three dozen employees on charges of having links with Jamaat-i-Islami and other groups, the administration invoked Article 311 of the Indian constitution to sack four more employees, including a professor and a scientist, without any inquiry or a chance of fair representation.