Thiruvananthapuram: A Special National Investigation Agency (NIA) court decision on 9 September to grant bail to two men arrested last year from Kozhikode for allegedly being Maoist sympathisers, and the court’s careful observation that mere association with a banned organisation does not attract application of the grave offence of facilitating a terrorist act, has brought under scrutiny the Kerala state government’s indiscriminate use of the draconian Unlawful Activities (Prevention) Act (UAPA), 1967.
Law student Allan Shuhaib, 20, and journalism diploma holder Thaha Fasal, 24, were granted bail by a special NIA court in Kochi. They were released on 11 September, after 10 months in the High-Tech Central Prison in Viyyur near Thrissur, Central Kerala.
Inspired by Leftist ideology, the young men were familiar faces in Kozhikode’s local politics as loyal and active cadres of Kerala’s ruling Communist Party of India (Marxist) until their arrest on 1 November 2019.
According to the First Information Report (FIR) in the case, Shuhaib and Fasal reportedly tried to evade a police sub-inspector and his team combing the outskirts of Kozhikode. The duo was with a third young man named Usman, who fled on seeing the police. Shuhaib and Fasal were arrested and taken to Pantheerankavu police station. The prosecution’s case was that Maoist literature and pamphlets for protests were found with them. These were recovered from Shuhaib’s shoulder bag and Fasal’s red plastic file, according to the FIR.
“Right to protest is a constitutional right,” Judge Anil K Bhaskar said in his bail order. The order pointed to the prosecution’s inability to establish in its final report that the accused were indeed cadres of CPI (Maoist) or that their activities were controlled by the banned organisation. The NIA took over the case in December 2019. The NIA Act includes in its schedule the UAPA, giving the anti-terror agency pan-India jurisdiction over UAPA cases’ investigation.
“Right now, even the prosecution does not have a case that the accused are members of the banned organisation,” said the order, adding that the section of the law invoked for their membership of the banned organisation had been dropped from the chargesheet.
The two accused in the case have not spoken to the media since being released on bail, and their families have made limited statements that the boys will return to their stalled education and career. Shuhaib was a law student at Kannur University when he was arrested, while Fasal had completed his journalism diploma before his arrest.
Their arrest by the Kerala police and the handing over of the case to the NIA had evoked public resentment as action against dissent. Chief Minister Pinarayi Vijayan, who holds the home portfolio, had declared in the Kerala Legislative Assembly that the two are “not sweet-eyed does”. But the bail order elaborately took apart the NIA’s application of severe sections of the UAPA against them.
‘Incriminating Material’ Holding Up The Case
The prosecution’s case was that the police had found incriminating material in Shuhaib’s shoulder bag, including a notice demanding that the recommendations of the government-appointed expert panel on the ecology of the western ghats, called the Madhav Gadgil Committee Report on the Western Ghats, be implemented, pamphlets condemning the alleged extra-judicial killing of four suspected Maoists inside the Manjakketty forest of Attappady in the northern district of Palakkad in October 2019, printed leaflets demanding restoration of tribal land in Wayanad, a copy of a political magazine ‘Maruvakku’ (Riposte) and a spiral-bound notebook with alleged coded notes. A pocket diary and a letter pad with notes on the right to dissent were also found in Shuhaib’s bag.
According to the bail order, Fasal was carrying a plastic file, from which the police seized printouts of the CPI (Maoist) central committee’s perspective on caste issues and a copy of the book ‘Organisational Democracy, Disagreements with Lenin’ by German Marxist revolutionary Rosa Luxemburg.
Raids were conducted at their homes and Shuhaib’s mobile phone was seized from his house. Police said Fasal had shouted slogans supporting Maoism during the search of his house.
Material seized from Fasal’s house included a 2018 diary, a CPI (Maoist) publication titled ‘Caste Issues in India’; a Maoist booklet titled ‘Enemies, Tactics and Counter Tactics’; journalist Rahul Pandita’s best-selling Hello Bastar, a historical account of left wing extremism in India; a book on former naxalite leader Mundoor Ravunni; a pamphlet exhorting Indonesians to join a fight against their rulers; a page with writings in support of the people of the erstwhile state of Jammu and Kashmir and a note supporting the call to demolish illegal apartment complexes in Maradu, near Kochi.
Other seizures included a printed notice to ‘comrades’ from the ‘area committee’, and two red cloth banners with letters in yellow, supporting the ‘freedom struggle’ in Jammu and Kashmir. A laptop, a mobile phone, two SIM cards, three memory cards, two pen drives, two bottles of paint and a set of drawing papers were also seized, purported to be evidence of creating Maoist literature.
From the hard disk of a computer seized from Shuhaib’s paying guest accommodation in Palayad near Thalassery in Kannur district, police found video clips on subjects including Kashmir, fake encounter killings of Maoists, Cuban revolutionary Che Guevara, Chinese leader Mao Tse Tung, Kashmiri separatist leader Syed Ali Shah Geelani and Kerala’s radical Islamic leader Abdul Nazar Mahdani. There were also PDF files on the abrogation of Article 370 that accorded special status to Jammu and Kashmir, on issues surrounding Kurds and Turkey, on Marxism, Islam and the Russian Revolution.
From Fasal’s laptop, police recovered the CPI (Maoist) party constitution and party programme, along with digital versions of party mouthpiece ‘Kaattuthee’ (Forest Fire). An offensive image of Prime Minister Narendra Modi was among other material recovered. The duo’s Facebook and email accounts as well as call data records were also studied, but these didn’t contain much evidence that was incriminating, according to the bail order. Usman, police found, was facing three previous criminal cases dating back to 2013, in Mananthavady, Pulpally and Thirunelli police stations of Wayanad, all three cases related to distribution of Maoist literature.
Based on this material, police booked Fasal, Shuhaib and the absconding Usman of being members of a banned terrorist organisation and for distributing Maoist literature in Kozhikode and surroundings. Police applied Sections 20 (punishment for being member of a terrorist gang or organisation), 38 (offence relating to membership of a terrorist organisation) and 39 (offence relating to support given to a terrorist organisation) of the UAPA against them.
On 16 December, 2019, the NIA took over the case. Through the ten months and two weeks since their arrest, Shuhaib and Fasal remained in custody while Usman is still absconding—the NIA completed its investigation without making any headway in locating him.
Court’s Takedown Of UAPA Sections, Incriminating Material
The rampant application of the UAPA, India’s anti-terror law, has been excoriated (here, here and here) by lawyers, jurists and human rights activists as being violative of personal liberties.
It allows diluted procedural rights for the accused, prolonged pre-trial custody including police custody, and extremely difficult conditions to procure bail. The use of the UAPA has been censured in case after case, including in prominent recent cases. The Elgaar Parishad case, also called the Bhima Koregaon case, pertains to violence in the vicinity of Bhima Koregaon, near Pune, on January 1, 2018, which is alleged to have been a result of an event called the Elgaar Parishad in Pune city the previous day, organised by and attended by several civil rights activists, Dalit rights activists and retired judges. Among the 13 human rights defenders arrested in the case by the Pune police and then the NIA are human rights lawyer Sudha Bharadwaj, poet Varavara Rao, professor Anand Teltumbde and activists Gautam Navlakha, Arun Ferreira and Vernon Gonsalves. They have all been awaiting trial for extended periods of time.
Other campaigners against government policies who were arrested and face charges under UAPA include Devangana Kalita of Pinjra Tod and former students’ union leader at Aligarh Musllim University Sharjeel Usmani for protests against the Citizenship (Amendment) Act. These arrests were part of a clampdown against dissent.
More recently, on 13 September 2020, former students’ union leader Umar Khalid was arrested for a role in an alleged conspiracy behind the Delhi communal riots of February, also under UAPA.
Delhi-based lawyer Abhinav Sekhri has argued earlier in Article 14 that anti-terror laws such as the UAPA serve as “useful tools to curb dissent and suppress the voices of those inimical to state policy”.
Sections of the law that have been widely panned by critics for their vague handling of a matter that is critical to the accused include sections 20, 38 and 39, all three pertaining to identifying membership and support to a terror group. And all three find extensive mention in Judge Anil Bhaskar’s bail order for Fasal and Shuhaib.
Section 20 that comes with a mandatory life-term if proven is the offence of being a member of a terrorist organisation. The section fails to explain how a ‘member’ is to be identified. Sections 38 and 39 deal with ‘associates’ of terror groups, and those who ‘support’ it, carrying a maximum sentence of ten years’ imprisonment. Citing case law, the bail order interpreted Sections 38 and 39 as being limited in their ambit to only activities “that have intent of encouraging or furthering or promoting or facilitating the commission of terrorist activities”.
In a detailed, point-by-point takedown of the prosecution’s interpretation of the material seized from Shuhaib and Fasal, the court said the literature in their possession relates to “burning social and political issues”; and the marches they participated in were conducted peacefully.
On the banners supporting a freedom struggle in Jammu and Kashmir, the court said, “It is to be taken note that these banners were prepared in the aftermath of the abrogation of Article 370 and Article 35 (A) of Indian Constitution by Indian Parliament. Any evaluation diverted from the context will lead to bad conclusions. 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.”
Fasal’s sloganeering in support of Maoism may indicate his inclination towards Maoist ideology but cannot be construed as indication that he has adopted violence, it said.
Referring to the seizure of books on sensitive issues, the court said books indicate inquisitiveness and quest for knowledge, apart from the determination of the accused to read material from across ideologies. Their reading choices were not aiding or abetting terrorism, the court said.
Some material relied on by the prosecution, such as the flag of the banned party, are available in the public domain and on the Internet, the order said.
Section 20, meanwhile, was dropped in the final report, leaving the prosecution without a case that the arrested men were members of a banned organisation, and there was also no allegation of even a single violent overt act against the accused. Possession of an internal document of the banned organisation, therefore could “only indicate a leaning on the side of the accused towards this banned organisation”, the judge reasoned.
The 64-page bail order’s reasoning was at odds with the chief minister’s claims in the Assembly.
“Though the prosecution was able to establish that the accused had associated with and supported CPI(Maoist) organisation, it’s doubtful whether the prosecution has made out a prima facie case regarding their affiliation and support to the banned organisation with the intent to encourage, promote or facilitate the commission of terrorist organizations,” said the order.
Out On Bail, Under The Radar
Shuhaib and Fasal were active members of CPI(M). But they remained in jail without bail as a section of their own party branded them as urban naxals. When it handed over the case to the NIA, the state government disregarded concerns raised by CPI(M) national general secretary Sitaram Yechury and politburo members Prakash Karat and M A Baby.
Shuhaib’s mother Sabitha Sekher whose maternal family has strong Communist roots said the court order must prompt “deep introspection” on the part of Chief Minister Pinarayi Vijayan and the Left government.
“The police claimed that Allan had been engaging in extremism from the age of 13 and that he has been under observation for years," she said. "If this was true, why did the police never inform the parents?”
Fasal’s father Abubacker said his son’s books and other reading material were not hidden in their home, as the NIA alleged.
“Our children have some kind of larger social concerns,” said Abubacker. “They are reading a lot.”
M A Baby, CPI(M) Politburo member and former Kerala education minister, said the government should not have slapped UAPA against the boys. “The CPI (M) has always opposed the law,” he said. “In the case of the two students, the police have wrongly used the UAPA. You can't call them Maoists for mere possession of brochures.”
Now in its fourth year, the Pinarayi Vijayan led LDF Government has invited angry reactions from human rights activists and civil society at regular intervals for its police policy. After Vijayan came to power, nine suspected Maoists have been killed in three different encounters.
Retired Judge’s Son Arrested In 2014
The case of Fasal and Shuaib harks back to the arrest, two-week police custody and subsequent release on bail of Shyam Balakrishnan, the son of a retired judge of the Kerala High Court. Balakrishnan’s demand for compensation for his illegal arrest is pending in the Supreme Court.
Balakrishnan, who worked as coordinator for a collective named One-World University, was taken into custody from a small town in Kerala’s Wayanad district on 20 May 2014 by policemen conducting a routine search of vehicles who allegedly found his long beard and moustache similar to a style commonly sported by CPI (Maoist) members. He was riding his bike around 4.30 pm when he was taken into custody.
According to Balakrishnan, the policemen refused to give him a reason for forcing him into their jeep. He was not allowed to call relatives. At the police station he was strip-searched in front of about 20 policemen.
Senior officers of the Thunderbolt squad, Kerala Police’s anti-Maoist wing, interrogated him for about an hour. His arrest was recorded only late that evening when he was taken to his farm house in Thalapuzha, Wayanad, for a search operation. That is when his family came to know of the arrest.
According to Balakrishnan, the interrogation continued at his farmhouse too. Officials allegedly also questioned his companion and two visiting friends. They examined his laptop, but Balakrishnan refused to disclose his e-mail ID on the grounds of Right to Privacy and Right to Disobey.
Officials told him an e-mail ID is like a name; one is bound to give it when asked. Balakrishnan did not relent. The men reportedly took him back to the police station after seizing all mobile phones and laptops they found in the house.
Balakrishnan said the policemen told him he had “unnecessary concern” for matters such as the right to privacy. According to him, policemen told local journalists in his presence that he had tried to escape when his bike was stopped, and that his arrest had been the result of a daring police effort. A search of his laptop yielded mention of subjects such as ‘capitalism’ and ‘politics of agriculture’, found to be objectionable even after Balakrishnan explained that this MS Word file was for a class he was to conduct at a local school. His note attributed the words to an article by Arundhati Roy named ‘Capitalism – A Ghost Story’.
Balakrishnan says, far from being a Maoist sympathiser, he was always critical of their ideology.
Out on bail, Balakrishnan filed a writ petition in Kerala High Court seeking compensation for his illegal arrest on fabricated charges and subsequent harassment. His petition highlighted the need to protect the right to democratic disagreement without it being misinterpreted as sedition.
In May 2015, the Kerala High Court ruled in Balakrishnan’s favour, and ordered the state government to pay the compensation. The HC judgment said that being a Maoist is not a crime. “Therefore, Police cannot detain a person merely because he is a Maoist, unless Police forms a reasonable opinion that his activities are unlawful,” it said.
In June 2015, the Congress-led United Democratic Front (UDF) state government appealed against the order, but a division bench validated the single judge’s order to pay compensation. Following the 2016 Assembly elections, Kerala saw a regime change as the UDF lost power to the CPI(M)-led Left Democratic Front (LDF). Contrary to public perception, the LDF government approached the Supreme Court in November 2019, seeking quashing of the High Court order for payment of compensation. The apex court stayed the order in the same month. A final verdict in the case is still pending. In its appeal in the apex court, the state government also sought to nullify the High Court observation that being a Maoist is not a crime and that a person cannot be arrested for being one.
“It’s quite astonishing that the state government has no regret over arresting and humiliating a person who never ever showed any sympathy to any extremist organisation,” Balakrishnan told Article 14.
“My concerns on the right to privacy and right to disobey are also unaddressed," he said. "In the meantime, the state is witnessing more abuse of power by the police.”
(KA Shaji is a journalist based in South India.He writes on human rights, environment, livelihood, caste and marginalised communities.)