(Image Courtesy : Kerala Kaumud)
A special NIA court in Kochi has granted bail, on September 9, to two students, Allan Shuaib (20) and Thwaha Fasal (24) who were detained under Unlawful Activities (prevention) Act (UAPA) for allegedly being members of Communist Party of India (Maoist) [CPI(M)] which has been listed as a terrorist organisation under UAPA. They had been in custody since November 2019 and are to be set free after about 10 months.
They were arrested on the grounds that they were in possession of documents supporting CPIM, attended meetings of CPIM, prepared cloth banners supporting secession of Kashmir from India. The two boys were apprehended by the police from a roadside, on November 1, 2019 as they found them to be suspicious and they found some material in their bags on basis of which they were charged under the stringent sections of UAPA. These materials included some documents, some books, a notepad with “code language” as well as two books titled “Caste Issues in India” and “Organizational democracy – disagreement with Lenin”.
The police even searched each of their houses and from Shuaib’s house recovered portraits of Che Guevara, poster images reading “Ban UAPA”, “Kurdistan Solidarity network Kerala”, “Kashmir Terrorism”, among others. From the house of Fasal, they retrieved images of CPIM flag, photo of Maoist leader Roopesh, files related to CPIM Central Committee Program, Image of hanging prime Minister Modi and so on. It is however, pertinent to note that the perusal of call records, Facebook account and email account did not produce any incriminating evidence against them.
Shuaib and Fasal had both sought bail from Sessions Court, Kozhikode which was rejected and in appeal, High Court as well dismissed the same, taking prima facie view that sufficient materials exists to continue investigation under UAPA. Initial investigation was carried out By Kerala police and later the case was transferred to National Investigation Agency (NIA) in December 2019.
The NIA filed its final report before the special court on April 27, 2020 but permission for further investigation was still sought from the court, which was granted.
In the bail applications, it has been contended that the prosecution failed to collect sufficient materials against the accused and that the material fails to prove involvement of the accused in any violent or terrorist acts and neither is there any convincing evidence to prove they are members of CPIM. It was further submitted that the accused, due to their inquisitiveness, have gathered material and books related to Maoism.
The prosecution contended that if the accused are released on bail, they will join the People’s Liberation Guerrilla Army and may wage a war against the country.
The court’s observations
The court observed that the object of detention pending criminal proceedings is not punishment, and that the law favours allowance of bail, which is the rule and refusal of it is an exception.
Section 43D (5) and (6) of UAPA speak of provisions for bail that puts additional restrictions on bail. It states that if the report submitted to the court or if the case diary states that there are reasonable grounds for believing that the accusation is prima facie true, then the bail shall not be granted.
The court observed that while it has to act in accordance with section 43D of UAPA while granting bail it also has “equal responsibility to see that human rights are not violated in the process of combating terrorism”.
The court also held that while exercising discretion in grant of bail, the court has to balance mitigating and aggravating circumstances. The court also cited Shafi v. State of Keraal (2019 KHC 5653) whereby the Kerala high Court had held that,
“the law of bails has to dovetails two conflicting demands, namely, on one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental cannon of criminal jurisprudence viz. the presumption of innocence of an accused till he found guilty”
Analysing section 38 and 39
The accused were charged under section 38 (associating with terrorist organization) and section 39 (garnering support for terrorist organization) of UAPA.
The court observed that under section 38, the person should have associated himself and the association should be with the intention to further the activities of the terrorist organization. Hence, unless both postulates exist together, section 38 cannot be invoked.
The court further observed that under section 39, the first postulate related to giving support, inviting support, arranging or managing a meeting and addressing a meeting for encouraging support for the organisation, and the second postulate is that there should be an intention to further the activities of the terrorist organization Hence, unless both postulates exist together, section 39 cannot be invoked.
The accused contended that mere association or membership in a banned organization ipso facto does not prove involvement in terrorist acts and hence unless the affiliation is with clear intention to further the terrorist activities, the case is not made out.
The prosecution contended that if such an interpretation is allowed, then terrorism will flourish.
The court observed that the petitioners’ contention cannot be brushed aside. The court finally observed that the sections 38 and 39 include only those activities that have the intent of encouraging or furthering or promoting or facilitating the commission of terrorist activities.
The court’s findings
The court examined all the material put before it in the final report and observed that all the literature was relating to burning social and political issues and “nothing is there to further or to encourage terrorist activity or facilitate its commission”.
Considering the second ground that the petitioners had participated in protest marches to extend solidarity to Kurds, to protest against police atrocities, against demonetisation, the court observed, “these issues are debated and discussed in social and political sphere and all protests were conducted peacefully”.
Thirdly, the notices and pamphlets issued by CPIM in possession of the petitioners were also relating to such socio-political issues and the court held that “prima facie it does not indicate any attempt to excite the people to violently protest against the government. By this notice people were not called upon to support CPIM but to only protest against the government action which they claim to be wholly unjust.”
Fourthly, the court considered one document said to be prepared by Fasal in support of the freedom struggle of Kashmir and to oppose government control over J&K, the court held thus,
“right to protest is a constitutionally guaranteed right… a protest against the policies and decisions of the government even if it is for a wrong cause cannot be termed as sedition or an intentional act to support cession or secession.”
The court further held that, “A contextual evaluation of the objectionable writings referred above, doesn’t prima facie prove any attempt to create any hatred or contempt to government of India not does it excite any disaffection”
The court also commented on literature related to Maoism stating that being a Maoist is not a crime even if the ideology does not synchronise with our constitutional polity.
The court observed that there are many missing links in establishing that the accused were members of CPIM and also pointed out that the charges under section 20 of UAPA was dropped in the final report as the prosecution does not have a case that the accused were even members of CPIM. The court stated that there is no allegation of violence, neither possession of internal documents of CPIM, but merely a leaning towards Maoism. Even the evidence of the witnesses indicate that the accused were attracted to Maoism.
The court, while granting the bail, held that the accused are young and there is a possibility that they might come in contact with a banned organisation as they are prone to extremist ideology. Yet the court held that there is possibility of reformation and hence the court has to be lenient while granting bail with a clear message that the chance given for reformation shall not be mistaken as an opportunity to fasten their bond with a banned terrorist organisation and to be part of it.
The court granted bail on strict conditions imposing restrictions on their movement beyond the state and a surety of a parent and a close relative of Rs. 1 lakh each, for both accused, while asking the police to keep a close watch on whether they are indulging in any criminal activity supporting the CPIM.
The complete order may be read here.