High Court of Kerala stays the order to compensate “Maoist” Shyam Balakrishnan [Updated]

A Division Bench of the Kerala High Court headed by Chief Justice Ashok Bhushan on Friday stayed the directive issued by a single Judge of the Court asking the state government to pay a sum of Rs 1 lakh as compensation in addition to Rs. 10,000 as costs to Shyam Balakrishnan, who was illegally detained by the police last year on suspicion of his being a Maoist.

The Division Bench granted the order of stay as sought for by the State Government while admitting on file its appeal filed against Justice A. Muhamed Mustaque’s judgment which contained the controversial remarks, “Being a Maoist is no crime, though the political ideology of Maoists does not synchronise with our constitutional polity.  It is a basic human right to think in terms of human aspirations… therefore, Police cannot detain a person merely because he is a Maoist, unless Police forms a reasonable opinion that his activities are unlawful.”

In its appeal against the judgment of the single Judge, the Kerala Government contended : “Nobody has the right to proclaim oneself as a Maoist and work for the outfit. Maoist outfits are engaged in an armed revolution against the government. Hence not only carrying out attacks but also spreading the ideology is a punishable offence. The Single Bench's remark should be quashed as it was unwarranted and illegal.”

The State also pointed out in its appeal that by virtue of Section 13 of the Unlawful Activities Prevention Act, unlawful activities cover various acts such as advocating, abetting, advising or inciting the commission of unlawful activities. “Sub- section 2 of Section 13 further stipulates that whoever, in anyway, involve in any unlawful activity of any association will be liable for punishment. Hence, the law imposes punishment not only for acts of violence, but also for acts that apparently seem to be innocent - such as advocating, advising or indirectly abetting unlawful activities, wherein everyone associated with the propagation of the ideology would be held liable. “Nobody can proclaim himself to be a Maoist. Therefore, the finding of the learned Single Judge is illegal and liable to be dismissed,” submitted the State.

The State also submitted in its appeal that the Communist Party of India (Maoist) was an organisation banned under the Unlawful Activities Prevention Act. “Maoist organisations are advocating armed rebellion to overthrow the established government, and therefore they are advocating, encouraging and indulging in anti-national and seditious activities against the country,” the State submitted. It said that there was no arrest, and that no search was conducted in the house of Shyam Balakrishnan.

“The Single Judge had accepted the fact that the police officials acted bonafide and there was no malafide. Notwithstanding the finding, the Single Judge passed the judgment, fixing liability on the State. The judgment is against the sovereign immunity of the government, and the various parameters relating to the matter in issue were not considered,” the State pointed out.

When suspicion exists, the suspected person can be detained during probe, for the purpose of questioning. “What is involved in this case is only a detention for the purpose of interrogation, which the police is expected to do under normal circumstances as per law. It cannot be complained. Therefore, the learned Single Judge was absolutely not justified in ordering the compensation,” the State said.

Shyam Balakrishnan, son of a former judge of the High Court of Kerala, was detained on May 20 last year by Vellamunda police. Alleging police harassment and infringement of his Fundamental Right under Article 21 of the Constitution, Shyam Balakrishnan had moved a writ petition before a single judge of the Kerala High Court questioning his wrongful detention and seeking compensation for the same from the state and the police officials arrayed as respondents. He had alleged that the police took him to the local police station, where they strip searched him and also raided his house without a warrant.

Justice A. Muhamed Mustaque allowing his writ petition, had said, “being a Maoist is no crime. Freedom of thought and liberty of conscience is a natural right. Freedom becomes unlawful only when it concerns the physical law of the State.”

Justice Mustaqe had said that although the political ideology of the Maoists ran counter to India’s constitutional polity, a person could be prosecuted only if it could be proved that he had acted unlawfully as a result of his adherence to this ideology.

The single judge had said that it was “a basic human right for people to have aspirations”, and found fault with the state for “disguised aberration of law in the cloth of uniform” where “protectors turned agressors".

In essence, Justice Mustaque had opined that there is a fundamental and vital difference between believing and acting on Maoist ideology, and when the judgment was rendered, many legal experts had commented that the judgment was in line with consistent position taken by Supreme Court in a catena of cases, the guiding principle being the Fundamental liberties enshrined in Article 19 of the Constitution. The single judge had thus upheld individual liberties against the creeping power of anti-terror laws.

To illustrate, in 2011, the Kerala government had challenged before the Apex court, the bail granted by the High Court of Kerala to Dr Raneef, whom the police had accused of being a member of the alleged terrorist organization Popular Front of India, and booked under UAPA. Declining to interfere with the High Court’s order, the SC had borrowed from a US Supreme Court verdict to reject the theory of “guilt by association”. It said that a law that applied to membership without a specific intent to further the illegal aims of an organisation, infringed unnecessarily on protected freedoms.

Also in 2011, the Supreme Court had set aside the conviction of Arup Bhuyan and Indra Das, who were held guilty under TADA for being members of ULFA — saying that mere membership of a banned organisation would not incriminate a person unless he resorted to violence or incited people to violence, or did an act intended to create disorder or disturbance of public peace.

Similarly, while granting bail to Dr Binayak Sen in April 2011, the Supreme Court had said that the paediatrician and human rights activist may be a Maoist sympathiser and possessed come material on that ideology, but that could not automatically make him guilty of sedition. If the state could not prove that Sen had propagated the ideology or acted in collusion with Naxalites, even meeting a hardcore Naxalite such as Narayan Sanyal in jail was not enough to prosecute him, the court said. Could a person be called a Gandhian merely for possessing a biography of Gandhi, the SC had asked.

Again, in the very same year, the Gujarat High Court released on bail five members of the Janashakti organisation, which worked with the CPI (Maoist). Surat police had found documents such as agenda of a meeting and literature on revolution and lessons, including one on the guerrilla warfare of the CPI (Maoist). The court held mere possession of such literature without actual execution of the ideas in them would not amount to an offence.