'RDF Not Declared Unlawful Or Terrorist Organization Under UAPA' : Kerala High Court Acquits Five In Alleged Maoist Meeting Case

They were convicted by the Special Court under Sections 10 (penalty for being member for unlawful organization), 13 (punishment for unlawful activities), 38 (offence relating to membership of a terrorist organisation) and 39 (offence relating to support given to a terrorist organisation) of the Unlawful Activities (Prevention) Act, 1967 for allegedly conducting a meeting to establish a student's wing of Revolutionary Democratic Front (RDF) in Kerala which is alleged to be a front organization of Communist Party of India (Maoist).

The Division Bench comprising Justice Raja Vijayaraghavan V and Justice G Girish held that the prosecution has failed to establish that RDF is a frontal organization of CPI (Maoist). The Court also stated that RDF is not declared as an unlawful organization or as a terrorist organization under the UAPA.

“If the NIA or the law enforcing agencies were of the view that the said organisation was a Terrorist Organisation or unlawful association, the necessary steps ought to have been taken for declaring the said organisation as an unlawful association under Section 3 of the UAPA, or issued the necessary notification including RDF in the 1st Schedule of UAPA as a Terrorist Organisation…… none of the records brought forth by the prosecution contain the indication that CPI (Maoist) is the parent organisation of RDF. Nor could the prosecution show that any of the office bearers of RDF were earlier working in CPI (Maoist), and that, after the banning of CPI (Maoist), they have surfaced with a new name.”

The allegation was that the appellants organized a meeting in a lodge in Mavelikkara on December 29, 2012, intending to start a student's wing of the RDF in Kerala. After investigation, they were convicted by the Special Court for NIA Cases, Ernakulam under the UAPA. Aggrieved by their conviction, they have approached the High Court.

The appellants submitted that there is no legal basis for their conviction. It was submitted that there is no case that RDF is an association declared unlawful under Section 3 of the UAPA. It was also argued that RDF is not included in the First Schedule of UAPA and therefore it is not a terrorist organization and thus no offence under Section 38, 39 of UAPA is committed. It was also argued that there is no evidence to state that RDF is the frontal organization of CPI (Maoist). It was also stated that there is no evidence to establish that the appellants belonged to RDF or that the alleged meeting was conducted for any illegal purposes. It was also contended that the recovery of some publications or books containing the revolutionary ideas of Maoism by itself does not constitute any terrorist or unlawful activity.

The Assistant Solicitor General of India, ARL Sundhareshan submitted that RDF is a frontal organization of CPI (Maoist), and is declared as a terrorist organization scheduled I of UAPA as item 34 by relying upon some gazette notifications. It was thus argued that activities of RDF is prohibited in India. It was also alleged that the activities of the accused would disrupt the sovereignty, territorial integrity of India and that they would incite hostility towards the country.

On analysing the evidence, the Court noted that there is no doubt about the roles played by three appellants (accused nos. 1, 3, 5) as the office bearers of RDF. However, it noted that there is no evidence to link two appellants (accused nos. 2, 4) as activists of RDF.

Further, the Court noted that there is no evidence to state that CPI (Maoist) is the parent organisation of RDF. It further stated that if NIA or law enforcing agencies felt that RDF is a terrorist organization or unlawful association, then steps must have been taken to declare it as an unlawful and terrorist association under the UAPA. The Court thus stated that the prosecution has failed to establish that RDF is a front organization of CPI (Maoist).

The Court went on to state that since RDF is not proved to be an association declared as unlawful by a notification issued under Section 3 of the UAPA, the appellants cannot be convicted under Section 10 of the UAPA.

Further, the Court found that there is no clarity as to whether the appellants were convicted and sentenced by the Special Court under Section 13(1) or 13 (2) of the UAPA.

The Court noted that Section 13 (1) addresses the act of commission, or advocating, abetting, advicing or inciting the commission of any unlawful activity which is punishable up to 7 years imprisonment and fine. It noted that Section 13 (2) makes assisting unlawful activity of any unlawful association a punishable offence with imprisonment of up to five years or with fine or both.

Though the Court said that the pamphlets recovered from the accused has insidious contents and the circumstances related to the meeting were dubious, in the absence of a specific charge under Section 13(1), the prosecution case can't be sustained.

The Court stated that the appellants could not have been prosecuted under Section 13 (1) of the UAPA in the absence of a specific charge against them for the commission of any unlawful activity. It also stated that since RDF was not declared as an unlawful organization, they cannot be prosecuted for assisting unlawful activity of an unlawful organization punishable under Section 13 (2). The Court thus concluded that no offence under Section 13 of the UAPA was attracted.

The Court further noted that offences under Sections 38 and 39 of the UAPA were also not attracted since RDF is not enlisted as a terrorist organization in the First Schedule to UAPA. “Thus the essential requirement of Sections 38 and 39 of UAPA, which is the status of the organization as 'terrorist organization,' is lacking in the case on hand. Therefore, it is not possible to say that the offence under Sections 38 and 39 of the UAPA are established by the evidence adduced in this case”, added the Court.

Case Number: CRL.A NO.443 OF 2017 and Connected Matters

Case Title: Rajesh Madhavan v Union of India and Connected Matters

Citation: 2024 LiveLaw (Ker) 593

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