Thwaha's bail was cancelled and Allan's continued on medical grounds and for reasons of age. However, the unacceptable terms of the deliberations on their bail applications by the Kerala High Court is chilling. What I would like to focus on in this article, however, is the sterling judgment ofShri Anil K. Bhaskar, Judge for NIA Cases in the Special Court for the Trial of NIA Cases, Ernakulam dated 9th September 2020 – the judgment that was overturned by the High Court. In shining the light on Special Judge Shri Bhasker's judgment, my purpose is to point to the importance of a close reading of judgments that involve the question of personal liberty, tracing the genealogy of judicial empathy in a non-linear fashion across courts of different jurisdictions that together will help us piece together the contemporary history of constitutionalism in deeply troubling times.
Clearly demonstrated in this present instance is the fact that constitutional commonsense, and epistemic humility cannot be incarcerated through jurisdictional muscle-flexing or the imposition of cultures of subservience in constitutional environments. "We the people" must draw our strengths and our wisdom from different sites, discerning of how they may speak differently and to what extent they speak the language and spirit of the constitution. For a court of trial while it may not deliberate directly on a constitutional matter, in examining questions of custody and bail, is in fact addressing itself to the fundamental right to life and personal liberty.
Rather than capitulate to judicial hierarchies, therefore, it is my aim to reinstate Special Judge Shri Bhasker's judgment in the public imaginary, as one that instils in us a small measure of hope. I do this, mindful of course of the deeply troubling fact that one of the young men continues to be in jail.
The case concerned two young men in custody and one declared 'absconding' (all three Muslim), in custody since 2019, charged with offences punishable under the Unlawful Activities Prevention Act, 1967 (UAPA), and Section 120B, IPC (criminal conspiracy). The prosecution's case was that they had "knowingly and intentionally, associated themselves and acted as members of the Communist Party of India (Maoist), an organization banned under Section 35 of the UAPA as being a 'terrorist organisation'" (emphasis added) and that both the young men 'nurtured Maoist ideology since 2015-16' (i.e., when one of them was 15 and the other 19 years of age) (HC para 12).
The prima facie case, for the prosecution was made out by the fact that they had Maoist literature, had attended "various programmes organized by the frontal organisations…for furthering the objectives of the CPI (Maoist)," and "had knowingly and intentionally prepared cloth banners supporting seccession of Kashmir from the Indian Union for displaying at a public place" (para 4). They were discovered by a police patrolling party on the evening of 1st November 2019 on a roadside curb "in suspicious circumstances" – one of them, Usman fled on seeing the police and remains unapprehended. What did the police recover from them?
- The Madhav Gadgil Report on the Western Ghats in Malayalam
- A notice that protested the hunting down of Maoists
- A notice for a demonstration before the district collectorate
- Note pads with "writings in code language"
- A letter that spoke of a national seminar to "regain the freedom to criticize"
- A book on caste issues in India published by the CPI (Maoist)
- Rosa Luxemburg on organisational democracy, disagreement with Lenin in Malayalam.
- A book by Rahul Pandita on Bastar in Malayalam
- A book on the Indonesian struggle against fascist rule
- Mathula Mani's biography of Naxalite leader Mundoor Ravunni.
- Notices and banners protesting the control of Jammu and Kashmir and supporting the cause of freedom in Kashmir and castigating the "Hindu, Brahmin fascist government"
- Other literature seized by the prosecution pertained to Che Guevara, Geelani, Mao Tse Tung, the Kurd struggle in Turkey, books on the Russian Revolution, democracy, Islamic revolution, abrogation of Article 370 etc.
There were photographs of the accused participating in various meetings. There were also two sim cards, three memory cards, one laptop, two pen drives seized. Facebook and social media and mobile phone data were extracted "but it doesn't contain much evidence, incriminating in nature" (Sp. Ct. para 15). Broadly this was the evidence on which NIA placed reliance. Witnesses recorded statements purportedly regarding the involvement of the accused in activities of CPI (Maoist). The earlier part of the investigation by the Kerala Police led to their judicial remand, where the Session Judge denied bail on ground that a prima facie case was made out. The High Court did not interfere with the order of the Sessions Court, holding that there were sufficient materials to continue the investigation and their release at this stage might hamper the investigation at this early stage. But, the High Court recorded that "We neither affirm nor defer (sic) from the view of the Sessions Judge…It may be too early to pronounce on the culpability of the accused…" (Sp. Ct. para 19).
While we note the range of intellectual engagement evident from the list of literary materials seized, we move to the meanings the police patrol party (and later the prosecution/NIA) attached to these seizures: the two were arrested under Sections 20 (punishment for being member of terrorist organization), 38 (association with terrorist organization with intention to further its activities) and 39 (offering support to terrorist organization with intention to further its activities) of UAPA for allegedly being members of the CPI (Maoist).
By the time of the bail applications in the present case, the final report had been submitted by the prosecution. In opposing bail, the Public Prosecutor submitted that "the young age of the accused doesn't deserve any sympathetic consideration. It is pointed out that the age for becoming a member of CPI (Maoist) is just 16 years and the members in their prime youth are more prone to violent activities" (Sp. Ct. para 25, emphasis added).
In a careful and diligent attempt to examine whether the two young men were entitled to be released on bail pending trial, Special Judge Shri Bhaskar went into every aspect of the Prosecution's submissions referring to relevant caselaw at every stage beginning with the wide powers of the Sessions Judge and High Court in granting bail:
"The provisions relating to bail have been enacted with a view to restoring liberty to the arrested person without jeopardizing the objectives of arrest. It is always to be remembered that the object of detention pending criminal proceedings is not punishment and that law favours allowance of bail which is the rule and refusal of it is an exception" (Sp. Ct. para 28).
In the light of this gold standard, he examines the circumscription of bail under Section 43D (5) and (6) of the UAPA. Recognising the stringency of bail provisions under this section and the fact that terrorism poses new challenges to law enforcement, he is mindful that "At the same time, the court has equal responsibility to see that human rights are not violated in the process of combating terrorism. In all cases, the fight against terrorism must be respectful of the human rights", citing the judgment of the Supreme Court in PUCL v. Union of India (2004 (9) SCC 580) (Sp. Ct. para 31, emphasis added). Going a step further, he observes that the shielding of society had to be balanced with a fundamental tenet of criminal jurisprudence, viz., the presumption of innocence (Sp. Ct. para 32). This is a remarkable turn in anti-terror jurisprudence, that we can only ignore at our own collective peril. That it is still possible to speak of reinstating the presumption of innocence and judging on that basis holds hope for a society beleaguered by large scale targeted arrests of persons belonging to minority communities (primarily Muslim), and political dissenters using the strong arm of this same statute.
Was a prima facie case made out that pointed to the complicity of the accused in terrorist activities and offences? The accused were charged with offences under Sections 38 and 39, UAPA. Both these sections, as seen earlier turn on association/support "with intention to further terrorist activities" indicating, as the Special Judge observed that mens rea is a necessary component of these two sections. Section 20 prescribes punishment for being a member of a terrorist organization. In unpacking the jurisprudence on these sections, especially with reference to mens rea, the court examines corresponding sections in TADA and POTA, and the jurisprudence on those sections – for how else could one understand the right to personal liberty except by threading together the web of anti-terror laws and situating the right at the intersection of these laws? Special Judge Bhasker examines four judgments of the Supreme Court delivered by a division bench consisting of Justice Markandeya Katju and Justice Gyan Sudha Misra (he names them) and finds that "if the corresponding provisions of the UA(P) Act are interpreted in the same manner, then it will be clear that Sections 38 and 39 are limited in its ambit only to those activities that have the intent of encouraging or furthering or promoting or facilitating the commission of terrorist activities" (para 49). Guilt by association was a doctrine the Apex Court rejected.
Having mapped the field thus, the NIA Judge proceeds to examine the prosecution's contentions to reject the application for bail. The final report filed by the NIA had no reference to Section 20 UAPA – therefore the question of membership in terrorist organization did not arise. The court classified the evidence collected by the prosecution (listed earlier here) into 12 sub-categories. Whether it was demanding the implementation of the Madhav Gadgil report to advance Adivasi rights, or participation in protest marches (from Kurds to Jisha's murder), these did not involve any element of violence. The CPI (Maoist) pamphlets highlighted social issues and protested against encounter killings of alleged Maoists – and did not "indicate any attempt to excite the people to violently protests against the government" (Sp. Ct. para 60) – there was no attempt to recruit support, but only to gather people for a protest. The Kashmir banners, the Special Judge observed had to be viewed strictly in the context of the abrogation of Article 370 and could not be enlarged beyond that context – "A protest against the policies and decisions of Government even if it is for a wrong cause, cannot be termed as sedition or an intentional act to support …secession" (Sp. Ct. para 61). Speaking of communist ideology, the Special Judge observes, "Being a Maoist is not a crime, though the political ideology of Maoists does not synchronise with our constitutional polity". In the absence of an overt act of instigating violence, this fact of an ideological orientation by itself is of no material consequence. And, "prima facie, there is nothing to suggest any overt act" (Sp. Ct. para 62).
The prosecution contended that the accused were part of a conspiracy, attending secret meetings and following the party's of not carrying mobile phones on their person and not keeping such devices or documents in the residence. However, there were no details of call records or any other indication of meeting venues or times that the prosecution was able to confirm; and the prosecution submitted that the documents recovered from their homes were lying around and not concealed; further both accused were students – one in a regular course, the other studying through distance mode and working simultaneously. None of the 93 witnesses produced by the prosecution made a specific statement regarding the membership of the accused in the banned organization. There were therefore, in the Special Judge's considered opinion several missing links in the prosecution story of membership in the CPI (Maoist) – bolstered by the fact that Section 20 UAPA was dropped from the chargesheet. Jottings in a diary are "a process of cleansing or purging one's emotions out on paper…A provocative thought doesn't ipso facto prove preparation for a crime" (Sp. Ct. paras 74-75). Since "the petitioners were able to bring out a rational and reasonable doubt on the question of prima facie case", bail was granted subject to conditions as Special Judge Shri. Bhasker did not "find any danger of justice being thwarted by granting bail to the petitioners" (Sp. Ct. para 94).
The High Court of Kerala takes exception to this carefully calibrated decision of the Special Judge: "…we have no doubt that…the learned Special Judge had ventured to make a thorough, threadbare analysis into each and every document relied on by the prosecution, as if in a trial… [and in so doing] has overstepped while deciding to release the respondents on bail" (HC para 19). "We do not approve the approach made by the learned Special Judge," because among other things "very many authorities were relied on by [him] outside the context" (HC para 35). And again, "We would like to remind the learned Judge that the impugned order has been prepared as if it is a court of record which was unnecessary. Similarly, the learned Judge, while quoting some judgments of the Apex Court, has stated the names of the Hon'ble Judges who authored the judgments which is unwholesome".
It is not clear what the basis for the disapproval is. The accused were not members of a terrorist organization, they were not overtly or covertly involved in acts of terror or violence; what witnesses spoke of was "association and rapport with persons having close link with the banned organization"; "ocular evidence" that they were attending meetings; and "documents which are highly inflammable and volatile…not innocent and innocuous which could be ignored in a light-hearted manner" (HC para 26). The Special Judge certainly did not approach the case in a light-hearted manner, as is clear from his deliberated decision. He found too many missing links, but the High Court believes that "these are surreptitious activities for which evidence may not be readily available in black and white. Everything is done under the carpet, behind the curtain, without leaving any footprint" (HC para 26).
This is a case that needs to be understood and deliberated on publicly. We live in an era when the principle of non-retrogression of fundamental rights – indeed of constitutional morality -- has been affirmed by the Supreme Court, and the right to fair trial and the fullest enjoyment of the right to life and personal liberty was held to lie at the core of the idea of inherent human dignity. It is the constitutional courts that are being put to test.
I end invoking the words of Justice Dhananjay Chandrachud in the plurality judgment in Puttaswamy vs. Union of India:
"When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been…" (para 121). We have just borne witness to both.
(Kalpana Kannabiran is Professor & Director at Council for Social Development, Hyderabad)