New Delhi: The Supreme Court has asked the National Investigation Agency if recovery of literature from a person, membership of a banned organisation and shouting of slogans alone can attract charges under the Unlawful Activities (Prevention) Act.
A bench of Justices Ajay Rastogi and Abhay Sreeniwas Oka was hearing the special leave petition filed by the NIA challenging the Kerala high court judgment affirming a trial court’s bail order to law student Allan Shuhaib, LiveLaw has reported.
The court was also hearing a petition filed by Shuhaib’s co-accused, journalism student Thwaha Fasal, who has challenged the same high court judgment which set aside the bail granted to him by a trial court.
Shuaib and Fasal had been charged under the UAPA after both police and the NIA said that they were affiliated to the banned Communist Party of India (Maoist). At the time of their arrests, Shuaib and Fasal were 19 and 23 years old respectively.
In the same hearing, the NIA responded to the Supreme Court’s observation that the accused were “young boys”, by saying that “terrorism knows no age” and “Naxalites, Maoists are very sharp, shrewd people”, The Hindu has reported.
Additional Solicitor General S. V. Raju argued for the NIA that the CPI(Maoist) is notified as a “terrorist organisation” under the UAPA.
“An unlawful association is totally different from a terrorist organisation…These are individuals like Hafiz Saeed, Dawood Ibrahim! Look at the kind of organisations that are enlisted – Babbar Khalsa is one. CPI(Maoist) is also notified. It is a terrorist organisation – being a member itself is very serious!” Raju said.
The Supreme Court also asked Raju why Section 20 of the UAPA, under which punishment is given for being a member of a terror organisation, was dropped against the two young men in the NIA chargesheet. Under the UAPA, unlawful association attracts a far lesser sentence than membership of a terror organisation. The NIA has charged the two under the former, according to The Hindu.
Also read: ‘Right to Protest a Constitutional Guarantee’: Kochi NIA Court Grants Bail to 2 UAPA-Accused
The NIA counsel also told the court that from their activities and the fact that they shouted slogans of ‘Inquilab Zindabad’ and ‘Maoist Zindabad’ at the time of arrest, it can be concluded that they are members of a terrorist organisation.
“These are boys in their early 20s, they have some material in their possession. Can they be incarcerated only because of some kind of inference you draw…According to you, if any incriminating material was seized from these persons or their houses, you can infer that they are actively participating in these terrorist organisations?,” the Supreme Court asked.
“Have they been incarcerated for months on the basis of your inference? Where is the incriminating material to show they are members,” Justice Rastogi further asked.
The NIA counsel said that the presence of “15 copies of notices to be circulated” indicated culpability, citing that “if you wanted to read it, you wouldn’t take out 15 copies.”
The Supreme Court stressed that that the material was just found in the houses of the two men.
When the ASG sought to impress upon the court the seriousness of association with the banned organisation, observing that “if you go to even one meeting, you are imbibed with these ideas which will destroy the country,” the Supreme Court said the material on record must justify the case.
“We fully agree with you. But the material on record must justify that your inference has some basis. If somebody has a book which is banned by the government, would that implicate them?” asked Justice Rastogi.
As The Wire had reported earlier, 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”.
“Naxalites and Maoists are very sharp, shrewd people. It is very difficult for investigating agencies to track evidence or build a case,” Raju also said at one point, citing the confession of the two.
“But this is not TADA,” Justice Oka replied, according to The Hindu.
Under Terrorist and Disruptive Activities (Prevention) Act (TADA), a person’s confession can be relied upon for his own conviction.
The Supreme Court also came down heavily on the prolonged period of incarceration that the two have been forced to undergo. “God knows when charges will be framed,” Justice Rastogi said.