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The Supreme Court judgment restoring the bail granted to Kerala students Thwaha Fasal and Allan Shuaib, in a case registered by the Kerala Police and later taken over by the National Investigation Agency under sections of the Unlawful Activities Prevention Act (UAPA) of 1967 for their alleged Maoist links, has significant observations on handling of the harsh anti-terrorism law.
The Supreme Court observed that mere support given to a terrorist organisation as a member or otherwise is not sufficient to attract an offence under the UAPA. A bench of Justices Ajay Rastogi and Abhay S. Oka made it clear that:
“…[T]he offence under sub-section (1) of Section 38 of associating or professing to be associated with the terrorist organisation and the offence relating to supporting a terrorist organisation under Section 39 will not be attracted unless the acts specified in both the Sections are done with intention to further the activities of a terrorist organisation.
“To that extent, the requirement of mens rea is involved. Thus, mere association with a terrorist organisation as a member or otherwise will not be sufficient to attract the offence under Section 38 unless the association is with intention to further its activities. Even if an accused allegedly supports a terrorist organisation by committing acts referred in clauses (a) to (c) of subsection (1) of Section 39, he cannot be held guilty of the offence punishable under Section 39 if it is not established that the acts of support are done with intention to further the activities of a terrorist organisation.
“Thus, intention to further activities of a terrorist organisation is an essential ingredient of the offences punishable under Sections 38 and 39 of the 1967 Act.”
The NIA special court on September 9, 2020, in its judgment releasing both the accused on bail had made a similar observation which was later set aside by the Kerala high court, cancelling the bail of the second accused Thwaha Fasal and sending him back to jail.
Now, the Supreme Court has restored the judgment passed by the trial court which in clear terms stated that the case does not hold prima facie evidence to attract the stringent anti-terror law.
The Supreme Court judgment reads:
“We have examined the material against both the accused in the context of sub-section (5) of Section 43D. Taking the materials forming part of the charge sheet as it is, the accusation against both the accused of the commission of offences punishable under Sections 38 and 39 does not appear to be prima facie true.”
The bench substantiated the decision to set aside the high court order aside, saying that:
“While deciding a bail petition filed by an accused against whom offences under Chapters IV and VI of the 1967 Act have been alleged, the Court has to consider whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. If the Court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the accused is prima facie true, then the accused is entitled to bail.
“Thus, the scope of inquiry is to decide whether prima facie material is available against the accused of commission of the offences alleged under Chapters IV and VI. The grounds for believing that the accusation against the accused is prima facie true must be reasonable grounds. However, the Court while examining the issue of prima facie case as required by sub-section (5) of Section 43D is not expected to hold a mini trial. The Court is not supposed to examine the merits and demerits of the evidence.
“If a charge sheet is already filed, the Court has to examine the material forming a part of charge sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the Court has to take the material in the charge sheet as it is.”
Reinforcing the trial court’s judgment, the Supreme court also observed that:
“At formative young age, the accused nos.1 and 2 might have been fascinated by what is propagated by CPI (Maoist). Therefore, they may be in possession of various documents/books concerning CPI (Maoist) in soft or hard form.
“Apart from the allegation that certain photographs showing that the accused participated in a protest/gathering organised by an organisation allegedly linked with CPI (Maoist), prima facie there is no material in the charge sheet to project active participation of the accused nos.1 and 2 in the activities of CPI (Maoist) from which even an inference can be drawn that there was an intention on their part of furthering the activities or terrorist acts of the terrorist organisation.”
The court emphasised that:
“Apart from the fact that overt acts on their part for showing the presence of the required intention or state of mind are not borne out from the charge sheet, prima facie, their constant association or support of the organization for a long period of time is not borne out from the charge sheet.”
The Supreme court held the view that:
“The High Court did not notice that by taking the material collected during the investigation which forms a part of the charge sheet as it is, the Special Court had recorded prima facie finding regarding the absence of any material to show intention on the part of the accused to further the activities of CPI (Maoist).
“The High Court has not recorded prima facie finding on this aspect. By applying the law laid down in the case of Watali (National Investigation Agency v Zahoor Ahmad Shah Watali on 2 April, 2019) there were no reasonable grounds for believing that the accusations against the accused nos.1 and 2 of commission of offences under Sections 38 and 39 were prima facie true.”
On November 1, 2019, when they were picked up by the police at Pantheerankavu in Kozhikode, Allan Shuaib, a law student was 19 and Thwaha Fasal, a part-time journalism student, was 24. Both of them were active workers of the CPI(M), the ruling party of Kerala.
Police slapped sections 20, 38 and 39 of the UAPA against them for alleged association with the proscribed CPI(Maoist). The ruling CPI (M) was caught on the back foot on multiple counts from the minute the two were booked. The party’s unrelenting opposition of the draconian law was questioned by the left-leaning section of the polity and the far right accused them of facilitating terrorists in the garb of party cadre. Even the party leadership was divided over whether to support them or not, with politburo member M.A. Baby and Dr. T.M. Thomas Issac openly supporting them.
Allan Shuaib, in particular, was from a known family with allegiance to the left. His grandmother was a well-known social activist in Kozhikode and had been associated with the CPI(M) till her death in 2018. Dr. Issac even paid a visit to Allan’s house, pledging solidarity, a move that did not go very well with the chief minister, according to some party sources. The party rank and file were starting to split vertically as Thwaha and Allan maintained that they were only CPI(M) workers.
After the initial period of confusion and dilemma CM Pinarayi Vijayan himself put his weight behind the police theory that Allan and Thwaha were indeed Maoist activists, an act many political observers criticised. They felt that as the head of the state government, he should not have commented on the ongoing investigation this way.
The statement he made inside the assembly – “those young men did not get arrested for merely drinking tea on the road side” – sparked controversy with the opposition grabbing the opportunity with both hands. After mounting pressure from the left leaning public sphere, it was learned that the state government was considering a review of the case by the UAPA review committee, a mandatory body as per section 37 of the act, but it was spared the effort as the National Investigation Agency, took over the case.
In the charge sheet submitted by the NIA in the special court at Kochi, it set out serious charges against the accused including that they had knowingly and intentionally, associated themselves and acted as members of CPI (Maoist), proscribed as a terrorist organisation by the Union government under section 35 of the UAPA, attended various conspiracy meetings along with other underground part-time and professional members of CPI (Maoist) and recruited cadres for the outfit.
The charge sheet goes on to accuse Thwaha of knowingly possessing documents supporting and published by CPI (Maoist) and preparing propaganda materials supporting secession of Kashmir from the Indian Union.
It was after 10 months of incarceration that both of them were released on bail by the special court, in September 2020, a respite that was short lived in case of Thwaha Fasal, whose bail was cancelled by the high court in January 2021. The different treatment meted out by the high court to Allan and Thwaha was also subjected to scrutiny by the Supreme Court.