'Right to Protest a Constitutional Guarantee': Kochi NIA Court Grants Bail to 2 UAPA-Accused

Allan Shuaib and Thwaha Fasal had been charged under the Unlawful Activities (Prevention) Act after both police and the NIA said that they were affiliated to the banned Communist Party of India (Maoist).

New Delhi: Granting bail to two students held by Kerala Police 10 months ago and handed over to the NIA, a special NIA court in Kochi said that mere possession of Maoist literature, presence in anti-government protests or strong political beliefs does not make a person complicit in terrorist activity.

Allan Shuaib and Thwaha Fasal had been charged under the Unlawful Activities (Prevention) Act after both police and the NIA said that they were affiliated to the banned Communist Party of India (Maoist). They were granted bail on Wednesday, September 9.

The court observed that the prosecution could not provide concrete evidence to prove their association with the proscribed organisation.

“…[C]onsidering the facts and circumstances of this case, balancing the aggravating and mitigating circumstances, and taking care of the competing rival interests, I find the judicial discretion available with this court, is to be exercised in granting bail to both petitioners/accused subjects to the conditions to be imposed for ensuring a fair trial and safeguarding the legitimate interests of the prosecution,” NIA judge Anil K. Bhaskar said in his order.

Also read: Allowing the State to Designate Someone as a ‘Terrorist’ Without Trial is Dangerous

The Pantheerankavu ‘Maoist’ case

The case, popularly known as the Pantheerankavu Maoist case, had shot to prominence last November, when Shuaib (19) and Fasal (23), who were studying law and journalism respectively, were arrested by state police from Kozhikode. Both were associated with the ruling Communist Party of India (Marxist), 

Accusing Shuaib and Fasal (and one Usman who it has been alleged is absconding) of being active CPI (Maoist) party members who had been distributing “Maoist literature” in order to revive the organisation in Kerala, the police slapped the stringent Unlawful Activities (Prevention) Act against the two.

Police and the NIA, which built the whole case on the basis of documents, posters, diaries, books and other political literature seized from the houses of the accused, had also alleged that Thaha had “raised pro-Maoist slogans” when his house was being raided. 

The case was transferred to the NIA in December, and both Shuaib and Fasal had been under judicial custody since then. Their bail applications were rejected by the sessions court multiple times during this period. 

Also read: NIA Cites Activist’s Use of Lenin’s Photo, Words Like ‘Lal Salam,’ Comrade’ to Justify UAPA Charges

The case triggered a political row between the ruling CPI(M) and a large section of civil society in Kerala. The CPI(M) suspended the two from the party immediately after police arrested them. 

All the while, public intellectuals and independent activists condemned the Pinaryi Vijayan government for giving a free hand to state police and invariably branding dissenters as “Maoists or terrorists.”

The case split opinion in the Communist party. While Vijayan said the accused were Maoists, CPI(M) general secretary Sitaram Yechury, and leaders like Prakash Karat M.A. Baby and Thomas Issac, supported the accused duo, pitching themselves directly against Kerala’s Left Front government.

CPI(M) general secretary Sitaram Yechury, Kerala chief minister Pinarayi Vijayan, CPI(M) politburo member Prakash Karat and other leaders attend the 5-day- long 22nd Congress of the CPI(M) at RTC Kalyana Mandapam in Hyderabad.(PTI Photo

Observations of the NIA Court

As the bail hearing progressed on Wednesday, September 9, the NIA court considered 12 categories of evidence, mostly related to political pamphlets and literature, produced by the prosecuting team, and weighed them against the arguments made by the defence counsels Isac Sanjay and Tushar Nirmaly Sarathy. 

The court found it strange that a large part of the documents that were seized from the houses of the two accused and which the NIA believed was incriminating were freely available in the public domain and have been discussed widely.

Mao Tse Tung. Photo: Public domain/Wikipedia

Some of the documents the NIA had produced as evidence were notices to demand implementation of the Madhav Gadgil Committee report to protect ecology in Western Ghats and safeguard Adivasi interests, a book called Great Russian Revolution, portraits of communist leaders Mao Tse Tung and Che Guevera and of Kashmir’s separatist leader S.A.S. Geelani and books that propagated “Marxist ideologies” and “Islam ideology”. 

The NIA also produced at court more allegedly incriminating literature including critical pamphlets against UAPA, on Turkey’s war against Kurds, and on the Indian government’s actions in Kashmir valley.

To build the case on their association with the Maoist party, the NIA said that the two participated in several protests and meetings in solidarity with the Kurds, against the murder of Jisha, against demonetisation, and cases of police atrocities.

Along with this, the NIA said that it recovered Maoist party documents, central committee reports, and party flags in their houses.

The Court observed that none of these materials point to any violent terrorist activity by the two, and dismissed the NIA’s contention.

“…[T]hese all pertain to issues debated and discussed in the social and political sphere and all the protests were conducted peacefully without any element of violence,” the court order said. 

Also read: Elgar Parishad Case: NIA Calls Kabir Kala Manch ‘Maoist Front’, Takes Activists into Custody

Regarding the charge that the accused were found in possession of Maoist party documents, the court said that most of these documents were available to the public on the internet. Coming down heavily on the NIA team, the order said:

“[The documents] prima facie doesn’t indicate any attempt to excite the people to violently protest against the government…people were not called upon to support CPI (Maoist) movement but only to protest against the government action which they claim to be wholly unjust. It is not of our concern whether the incident referred is actually a justifiable one or not.”

The court added that the NIA has produced only one document that is said to have been prepared by Fasal on behalf of the CPI (Maoist), and that it is a banner to be exhibited at public places to “solicit support to the freedom struggle of Jammu and Kashmir, oppose the control of the Indian government at Jammu and Kashmir and to fight against Hindu Brahmin Fascist Government.”

Regarding the banner, the court noted, “It is to be taken note that these banners were prepared in the aftermath of the abrogation of Article 370 and 35 (A) of Indian Constitution by the Indian Parliament. Any evaluation diverted from the context will lead to bad conclusions.”

Kashmiris walk past broken window glass after clashes between protesters and the security forces on Friday evening, during restrictions following the scrapping of the special constitutional status for Kashmir by the government, in Srinagar August 17, 2019. Photo: Reuters/Danish Ismail

“Right to protest is a constitutionally guaranteed right,” Judge Bhaskar further said, adding that “a protest against 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.”

It further said that a contextual evaluation of the “objectionable writings” produced as evidence against the accused are “not banned or prohibited” and does not prove “any attempt to create any hatred or contempt to the government of India nor does it excite any disaffection.”

The court said that reading Maoist literature and class struggle, or even being a Maoist, is “not a crime” although it does not synchronise with “our constitutional polity”. The political beliefs of a person can only be considered adverse if there is any “positive act from the side of the accused to instigate violence”.

Also read: Rights Bodies Urge President Kovind to Note Several Blatant Human Rights Violations

The court also said that it becomes evident that both the accused held strong political beliefs, and participated in political activities that were critical of the government, but that does not mean that both were “cadets” of the Maoist party or their activities were controlled by the proscribed organisation. 

The court added that since the accused “used to be proactive in every contentious social and political issue,” it appears that they were prone to “extremist ideologies” and that may have drawn them towards making contact with the banned organisation.  However, it added that the prosecuting team could not gather enough evidence to prove their complicity in a crime, and were forced to drop UAPA sections against the first accused Shuaib in its final report.  

In these circumstances, Judge Bhaskar said, the court should adopt a lenient view, and hoped that the bail would give them a chance to re-evaluate their political positions.