In an unusual decision, the Court ruled that mere possession of literature about Maoism does not mean terror activity
People are attracted to Maoist philosophy due to the oppression of weaker sections, a Special Court of the National Investigation Agency (NIA) in Kerala has held while granting bail to two persons who were arrested under the Unlawful Activities (Prevention) Act (UAPA).
In an order that has been described as unusual by members of the police and the legal fraternity, Judge Anil K Bhaskar ruled: “Possession of literature and reading materials on Communist ideology, Maoism, class struggle etc doesn’t prove anything adverse to the accused. Being a Maoist is not (a) crime, though the political ideology of Maoists does not synchronise with our Constitutional polity.”
“It becomes adverse only when there is a positive act from the side of the accused to instigate violence. Prima facie there is nothing to suggest any overt act on the side of the accused in this regard,” the court has said.
Allan Shuaib (20) and Thwaha Fazal (24), both cadres of Communist Party of India (Marxist), the ruling party in Kerala, were arrested for alleged Maoist links in November last year and were facing charges under UAPA.
The NIA prosecution had submitted evidence in 12 categories against Alan and Thwaha. They included documents connected to Maoism, pamphlets and notices favouring the implementation of the Madhav Gadgil environment report, the Kashmir issue, among others.
But the court described all the documents on the subjects listed were “burning social and political issues.” The court held that neither of two accused-petitioners could be described as members of a terrorist organisation because reading literature on such subjects or participating in protests could be questioned. In addition, the protests did not even lead to violence.
In the sixth and seventh category, the NIA presented a pamphlet titled Enemy tactics and counter-tactics. The NIA claimed that both Alan and Thwaha were being controlled by CPI (Maoist).
In one of the categories, the NIA produced certain official documents of some meeting sites pointed out by the accused. But the NIA failed to provide evidence that the accused had any plans of causing any damage. The NIA produced an oral statement of witnesses who had acquaintance with the accused. But none of the witnesses had given any specific statement to the effect that Alan and Thwaha are the members of banned organisations.
The NIA produced video clips of Maoists seized from the accused. The court said those video clips were available in the public domain and not banned ones. The court also held that there was no evidence to substantiate the charge that a book of codes found indicated that they were indulging in terrorist activity.
The local police had charged Allan and Thwaha under Sections 38 and 39 of UAPA and Section 120B of the Indian Penal Code. Section 38 states that a person, who commits the offence relating to membership of a terrorist organisation, shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both.
Section 39 states that a person to further the activity of a terrorist organisation, addresses a meeting to encourage support for the terrorist organisation, or to further its activity shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both. And 120B of IPC is connected to criminal conspiracy.
The second accused was also charged under Section 13 of UAPA. Section 13 states that whoever takes part in or commits, or advocates, abets, advises, or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine.
The court held: “A prolonged incarceration of the petitioners till the disposal of the case doesn’t appear to be inevitable. As held by the Hon’ble Apex Court in State of Kerala V. Reneef in 2011 (i) SCC 784) the delay in concluding the trial is one of the important mitigating factors in deciding whether to grant bail. The discussions made above will reveal that the mitigating circumstances out weigh the aggravating circumstances.”
As members of the legal fraternity expressed surprise over the verdict, Kerala high court advocate Hareesh Vasudevan Sreedevi, pointed out that getting bail is quite difficult in a UAPA case.
“Here Alan and Thwaha have been granted bail. That means that the NIA and the Kerala government have failed. How do we get bail in the UAPA case? It happens only if the prosecution fails to prove its points even in the prima facie stage. In the case of Alan and Thawha, the NIA failed to prove its points even at the prima facie stage,” the lawyer said.
“The 12 categories put forward by the NIA prosecution have been disposed of by the NIA court itself. They are not going to win this case even if they appeal,” the lawyer added.