UAPA Case Against Allan-Thwaha : Can Intention To Further Terrorist Activities Be Inferred From Books, Banners & Slogans? Supreme Court Asks NIA

The Supreme Court on Wednesday asked the National Investigation Agency if based on the recovery of certain books, pamphlets, banners, notices etc and the shouting of slogans, the membership of a banned organisation and the intent to further its activities can be inferred so as to attract the draconian anti-terror law the Unlawful Activities Prevention Act(UAPA).The bench of Justices Ajay Rastogi and Abhay Sreeniwas Oka was hearing the SLP filed by the NIA challenging the Kerala High Court judgment affirming the trial court's order granting bail to law student Allan Shuhaib in a UAPA case registered over alleged Maoist links. Also listed was the petition filed by Allan Shuhaib's co-accused Thwaha Fasal, a journalism student, challenging the very same judgment of the Kerala High Court which set aside the bail granted to him by the Special NIA Court.On Wednesday, Additional Solicitor General S. V. Raju, for the NIA, argued that even though the charge of section 20 of the UAPA (Punishment for Being Member of Terrorist Gang or Organisation; which is extendable to life imprisonment) is dropped from the chargesheet in respect of Shuhaib and Fasal, the court may discern it from the allegations in the chargesheet of the incriminating material recovered from them and their conduct.He submitted that the UAPA contemplates three types of entities- one, a terrorist gang, which, he said, the matter is not concerned with; the second, a terrorist organisation; and the third, an unlawful association, which, he said, is a milder form. "For unlawful association or unlawful activity, no terrorist activities are required", he told.Justice Rastogi asked if Communist Party of India (Maoist) is notified as an unlawful organisation."That is the mischief! They are notified as a terrorist organisation under section 35 of the UAPA! It is not an unlawful association. There is a distinction. The moment you are notified in the first schedule to the Act, you are an organisation involved in terrorism!", replied the ASG."An unlawful association is totally different from a terrorist organisation. Section 35 allows the government to add an organisation to the first schedule or the name of an individual in the fourth schedule. 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!", he continued.He sought to distinguish the 2011 Arup Bhuyan case, submitting that there, it was in context of the TADA that it was held that a terrorist act is important to be implicated- "In UAPA, that one is involved in a terrorist act is not important if one is a member of an organisation in respect of which the notification has been issued! And the notification will be issued only if you are involved in terrorism or terrorist activity!"He submitted that under section 36, the organisation or the person affected can also apply for de-notification. If that is rejected, it has to go before a review committee. It is only when the review committee, consisting of a chairperson who is a sitting High Court judge or a retired High Court judge, approves of it is the confirmation done."From their activities, their conduct of shouting slogans of 'Inquilab Zindabad' and 'Maoist Zindabad' at the time of arrest, the material found from their home and their person, it is concluded that they are members. A3 (Usman) is a full-time professional member in the underground cadre of the CPI(M) and A1 (Shuhaib) and A2 (Fasal) are part-time members", he submitted.'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?'- SC asks"You are saying that they are members of this terrorist organisation? Your chargesheet says that they have given assistance to A3 who is the person who is basically involved. Based on these documents that the chargesheet says have been recovered from them, you are connecting and saying that they have been assisting A3. 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?", asked Justice Rastogi."It will depend upon the nature of documents found. Here, the only inference is that you are an active member. Otherwise, how will you have 15 copies of notices to be circulated, minutes of the meeting?", replied the ASG. "It is not that he is circulating the notices on the streets or circulating to the people at large. It is only that you have found it at his house", inquired Justice Rastogi'If you wanted to read it, you wouldn't take out 15 copies...This is all a matter of trial", replied the ASG."They have no difficulty in trial. They say,...

UAPA Case Against Allan-Thwaha : Can Intention To Further Terrorist Activities Be Inferred From Books, Banners & Slogans? Supreme Court Asks NIA

Mehal Jain

"If somebody has a book which is banned by the government, would that implicate them?",the Court asked during the hearing.

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