"Young Children Are Idealists, Inspired By Certain Ideology. But There is No Allegation That They Have Intention To Further The Activities": Sr.Ad. Basant Argues In Allan Thwaha UAPA Case

The Supreme Court on Thursday remarked that the NIA's argument that sanction for prosecution under the UAPA for association with a banned organisation extends to the offence of membership of the organisation itself would result in a situation where a person, for being a member, attracts life imprisonment, but if the member, with the intention to further the activities of the organisation, does any act, he invites a maximum of 10 years.

The bench of Justices Ajay Rastogi and A. S. 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, ASG 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 revelations in the chargesheet of the incriminating material recovered from them and their conduct. The chargesheet books the 2 accused for section 38 (person, who associates himself, or professes to be associated, with a terrorist organisation with intention to further its activities) and 39 (person who, with intention to further the activity of a terrorist organisation, invites support, not restricted to provide money or other property, for the terrorist organisation, or arranges, manages or addresses a meeting or assists in doing so when he knows the meeting is to support the terrorist organisation) of the UAPA. Both sections 38 and 39 provide for a maximum sentence of 10 years or fine or both.

Senior Advocate R. Basant, for Shuhaib, yesterday pointed out that the NIA has not obtained sanction under Section 45 of the UAPA to prosecute the accused under Section 20. So, the Special Court is barred from taking cognizance of the offence under Section 20.

The ASG Today urged, "If you look at the offence under 38, it includes an offence under 20. 38 is entitled 'Offence relating to membership of a terrorist organisation'! Such an offence is ordinarily committed by a member! So if sanction is granted under 38, there is an implied sanction under 20"

At this, the bench observed, "Is the title of the section conclusive? Ultimately, the main section (38) does not refer to membership at all. You are not supposed to be a member as is required in 20. Active participation or association is what is needed. So while 20 may cover 38, but 38 may not cover 20"

The bench continued to note, "Just see how it will work if your submission is accepted prima facie- it creates a situation where if you are member, you will be sentenced to life, but if you are a member and with intention to further the activities of the organisation, you do something, then you are covered by 38 and 39 and you can be let off with 5 years also"

Next, Justice Rastogi indicated section 45 of the UAPA which provides that no court shall take cognisance of any offence without the previous sanction of the Central Government, or a state government, as the case may be; and that the sanction for prosecution shall be given only after considering the report of such authority appointed by the government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation to the government.

"Section 45 envisages an independent application of the mind. Even if you have not proposed section 20, the authority can consider it on the basis of material and final report. It can accord you sanction for even that which you have not demanded. And it is not bound by what you have demanded, it can refuse also", said the judge.

Justice Oka added, "A sanction order is given after a detailed exercise is done. It is by a committee of a retired judge. On the basis of the committee's recommendations, the sanction is allowed"

"There was application of mind only for 38,39 and not for 20 because we never asked for 20", persisted the ASG. He added that at the stage of bail, this is not a relevant consideration.

"Why? In the FIR, 20 was there. In the chargesheet, it is not there. The sanctioning authority also consciously examined the final report", said the bench.

 "Sanction is required at the stage of cognisance. If, suppose a person is arrested at an initial stage after registration of FIR and he is detained, an argument that there is no sanction would not mean that the court will not go into the offence. Ultimately, the question is of allegations. If there is no sanction, we will get the sanction. It is a technical part. We will apply for sanction and we will get it and we will produce it"The ASG submitted.

"You may do whatever you want to but we have to proceed on the basis of what is before us", said the bench.

The ASG yesterday submitted that based on the recovery of certain books, pamphlets, banners, notices etc and the post-arrest conduct of shouting of slogans, the membership of the CPI(Maoist) (which, he indicated, has been notified as a terrorist organisation by the government) the intent to further its activities can be inferred so as to invite the UAPA.

Today, he indicated that section 35 of the UAPA which provides that the Central government can add to the first schedule or the fourth schedule of the Act the name of an organisation or an individual respectively if it believes that such organisation or individual is involved in terrorism. "So an organisation gets the stamp that is involved in terrorism and only then is it put in the first schedule. Therefor, the words 'involved in terrorist activities' is missing in 38 because it is deemed to be terrorism as it is in association with a notified terrorist organisation"

At this, Justice Rastogi indicated the proviso to section 38(1) which says that a person will not said to have committed an offence under section 38 where the person charged is able to prove that the organisation was not declared as a terrorist organisation at the time when he became a member or began to profess to be a member; and that he has not taken part in the activities of the organisation at any time during its inclusion in the First Schedule as a terrorist organisation.

"So 38 may not apply- 'Terrorist activity' is more importantly couched with the intention to further the activities of the organisation", noted the judge.

"A meeting was held, the accused was preparing banners, preparing notices asking persons to attend the meeting, writing down the minutes of the meeting- these are all in furtherance of the terrorist organisation's activities. You are not holding meetings just for the fun of it. These are all activities before the terrorist activities of a terrorist organisation. You have to see the background. It is not necessary that you kill somebody or give a bomb to somebody. There are a number of activities of a terrorist organisation. Therefore, at the initial stage, when the organisation is declared as a terrorist organisation, it is presumed that any type of activities that you do, which need not necessarily be terrorist activity, would be furthering terrorist activity!", replied the ASG.

"The way you explained it yesterday, it can also be misused?", ventured Justice Rastogi.

"They are involved in heavy terrorism. It is not like celebrating a birthday party. This is not one stray instance", insisted the ASG, concluding his arguments.

'Would the act of filing application for de-notification of a proscribed organisation also amount to professing association?'- Senior Advocate R. Basant for Shuhaib

On Thursday, Mr. Basant submitted that for the restrictions on the grant of bail in section 43D(5) of the UAPA to apply, the court must come to a conclusion that the allegations are prima facie true; that that is the non-negotiable desideratum.

"The case diary and the final report have been filed in this case. There is no allegation of section 20 against me by the prosecution. It was the case in the FIR. After investigation, that allegation was not pressed. True to section 43D(5) proviso, the final report submitted will loom large before this court in considering my application for bail", he advanced.

The bench remarked that in any case, the sanction is not there.

Mr. Basant indicated the sanctioning order to buttress his case. He urged that even section 13 of the UAPA, which is invoked against only A2 (Fasal) for the "unlawful activity" of shouting slogans of 'Inquilab Zindabad' and 'Maoist Zindabad', does not come under chapter 4 or chapter 6 to which only section 43D(5) applies.

He submitted that even for sections 38 and 39, the intention to further the activities of the organisation is a non-negotiable limb of the provisions-

"If this ingredient is not there, however draconian 43D(5) may be, I am entitled to argue that the allegations are not prima facie true"

He took the bench through the ambit and scope of the expression "with the intention to further the activities of the terrorist organisation". He showed that in the predecessor Act of the UAPA, being the POTA, its section 20 corresponds in part to UAPA section 38 and section 21 of the POTA, which used the expression "to further the activities of a terrorist organisation", to UAPA section 39.

The constitutionality of POTA, particularly sections 20 and 21, was challenged before the Supreme Court. Mr. Basant submitted that in its 2003 PUCL judgment where the challenge to 20 and 21 was considered in detail, the court held them to be constitutional by reading the provision in a certain manner- "

"In POTA, the "intention" was not expressly stipulated and it only said "to further the activity". That is why the POTA was repealed and UAPA was exhaustively amended together with effect from September 21, 2004. There was a promise by the political outfit which came in power in 2004 that POTA will be scrapped and it was scrapped but certain provisions of its were incorporated in UAPA. They found that its withdrawal in entirety may not be helpful to the nation and some part of it was brought into UAPA. PUCL, Your Lordships held that it is obvious that the offence under section 20 or 21 or 22 needs positive inference that a person has acted with intent of furthering or encouraging terrorist activity or facilitating its commission; that in other words, these sections are limited only to those activities that have the intent of encouraging or furthering or promoting or facilitating the commission of terrorist activities. Your Lordships said that if these sections are understood in this way, there cannot be any misuse, and with this clarification, the constitutional validity was upheld"

"What was observed by the court in PUCL has been noticed in the subsequent legislation?" Justice Rastogi asked.

"This has been seen and observed and is incorporated into the amended section of UAPA. It is understood, accepted and incorporated in the UAPA. The way 38 and 39 have been modified shows that the Parliament accepted the PUCL interpretation that without the intention to further terrorist activities, you cannot hold that the allegations are prima facie true. The 'intention to further its activities', which was introduced in 38, was obviously to comply with the PUCL declaration of law. The Parliament, like a good student who learns from the experience in the POTA, has brought it into 38 that which was not there in 20. I am trying to point this out to buttress my argument that the allegations are not prima facie true because I have no intention to further the activities of the terrorist organisation, and there is no allegation or material to support this ingredient!", asserted Mr. Basant.

At this, the bench observed, "Why should we unnecessarily open those particular gates? We are on the limited issue of bail. Any observations made in reference to a bail application may be read in a different context. What we have to say is whether the chargesheet makes out a prima facie case under 38 and 39"

"My endeavour is to show to Your Lordships that there is no allegation that I have the intention to further the activities", replied Mr. Basant.

"That is something to argue when the matter is heard for the framing of charge. What will be left for when you argue the matter for the framing of the charge if you argue whether the offence is made out under 38 and 39 or not here?", asked the bench.

Proceeding with his submissions, Mr. Basant advanced,

"Young children are idealists. Who is not an idealist at this age? You get inspired by a certain ideology, there are people who tell you about it, you read more about it and you get inspired more and more. What is the tangible action that they have done after reading all this? There is no allegation for that, forget evidence. There is no allegation that we have done anything to further the activities of the organisation!".

He submitted that the 2011 judgments of the Supreme Court in Indra Das and Arup Bhuyan both are authorities for the proposition that even if the allegation is that you are a member of the organisation, that by itself will not attract culpability, criminality for the substantive offence and some act has to be shown.

"Here, for neither of us there is an allegation that we are members of a terrorist organisation", he said.

"Suppose a hypothetical situation- there is material on record to support that one is a member of an organisation for the last five years. The phrase used in 38 and 39 (of association or support) is only to justify one's active participation as a member of the organisation. Once it is proved that he is a member of the organisation, it is to show that he is not a sleeping partner. The sum and substance is ultimately only to connect to you your participation as a member of the organisation".The bench observed,

"Even if a person is not a member of an organisation, he may involve himself in the activities of the organisation, and in that context, the intention to further the activity is relevant. That is what I am trying to submit", said Mr. Basant.

"Because they were not able to sustain the allegation under sections 38 and 39, towards the latter part of the argument, they have consciously shifted to section 20. They are going on the back foot to say 'you are a member of the association also when they found it impossible to prove 38 and 39 in view of the PUCL judgment and the Parliamentary wisdom. But cognisance under section 20 cannot be taken unless the Executive applies its mind and grants sanction", he added.

Continuing, he submitted,

"There is no whisper of a semblance of an allegation that we have been involved in any earlier crime. It could be that somebody was trying to indoctrinate us by giving us these documents. The best way to fight Naxalite and Maoist menace is to educate people on that. If I am getting educated by reading this material, it is not a disservice to the cause of rule of law and democracy. There is no ban on the study of what the contesting ideology is. Except that I had some material in my possession and that I had read them and I was at most perhaps attracted ideologically to it, there is nothing! And all that is permitted in a democracy, unless such material is prohibited. There is no charge in the chargesheet that it is prohibited! The investigation is complete, final report has been filed- what is the point of detaining both of us in custody for a minute longer?"

Next, Mr. Basant indicated what had weighed with the High Court in affirming the grant of bail to Shuhaib while Fasal's bail was canceled-

"Firstly, my young age. The court felt that at the relevant time, I may even have been a minor because right now my age is 20+ plus, and felt that I should be released from the clutches of this draconian law. Please don't interfere with it...Secondly, the High Court noted that the man has a psychiatric disturbance. This is not the usual, run of the mill, affluent person's explanation as soon as they are remanded into judicial custody. I produced four documents which were accepted by the prosecution. I went to the psychiatric practitioner in June, August, September and October, 2019. This was there before the trial court also and not for the first time now. And all this is prior to November 1, 2019 which is the date of my arrest. The ailment is depression and dullness of mood.This psychiatric ailment is not something which is totally debilitating him, we just want to reconstruct his personality and that is why his parents realised it and took him to the doctor. Yesterday, there was discussion of how he is going to law school if he has this problem. It is not insanity. The state also verified it and they found I was treated. It is not that I got a backdated prescription"

"The third ground was that the material recovered from me and the conduct attributed to me is less serious as compared to A2- the allegations are less serious, the subsequent conduct of shouting slogans is not there. This was perhaps relevant in making an assumption if I was already indoctrinated or whether I was in the process of being inspired by giving me material to read. Against A2, there is an allegation under 13. Yesterday, Mr. Raju argued that two banners were allegedly recovered from A2 which were in his handwriting and Mr. Raju argued that preparation of banners is not part of studying or thinking, it is a part of action. The ASG submitted that 15 copies of a notice for internal circulation within the party were found with A2. Much was made out of this but according to me, nothing turns on this even against A2. The minutes written in the notebook recovered from A2- all these could not justify an allegation under 38 and 39 against A2 also. However, because these circumstances were not available against me, the High Court saw it as a factor in my favour", he continued.

Finally, Mr. Basant indicated that section 36 of the UAPA allows an application to be filed by a proscribed terrorist organisation to lift its notification as such.

"If every activity of a proscribed organisation were to cease, 36 says that the organisation itself can file an application to lift the ban. Who does this? This means that not every activity but only some of the activities are barred. If their argument is accepted, are the persons who apply for derecognition also professing to help the organisation? Look at the paradoxical argument! That would also drag 38? Not every activity would attract 38 or 39! ", he concluded.

The Bench reserved Orders and directed Advocates to submit short notes by Monday. 

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