'Elected Representatives Cannot Simultaneously Be Terrorists': Solicitor-General Tells Supreme Court Opposing Akhil Gogoi's Plea

“Elected representatives cannot simultaneously be terrorists. Gogoi was associated with the proscribed organisation Communist Party of India (Maoist). He sent Krishak Mukti Sangram Samiti cadres to train in Maoist camps, orchestrated widespread blockades in Assam virtually paralysing the government machinery, and even provoked angry mobs to cause damage to public property. There are witnesses who have testified that Gogoi was recruiting for Maoist training camps. This country is infected with Maoists and other proscribed organisations. This is very serious. He was out on a wrong order.”

“Indeed, it is very serious,” riposted Ahmadi, “There is an overarching ground of political vendetta. Gogoi is merely opposed to a particular political dispensation. That is why they want to put him in jail. I will bring all this to the fore when it is taken up. I will leave my gunpowder dry till then.”

This matter came up for hearing before a division bench of Justices V. Ramasubramanian and Pankaj Mithal that issued notice earlier in February for the limited purpose of considering the grant of protection to the petitioner from arrest and enjoined the federal agency from taking the legislative assembly member into custody in the meantime. On Monday, the hearing was adjourned to Friday, March 24, on account of a paucity of time. “I am a part of a special bench so we will have to take it up on Friday,” Justice Ramasubramanian explained.

Gogoi, an independent legislator representing Assam’s Sibsagar and president of a regional, progressive party, Raijor Dal, was arrested in December 2019 when the protests against the Citizenship Amendment Act were at their peak. He was booked under Sections 120B (criminal conspiracy), 124A (sedition), 153A (promoting enmity between different communities), and 153B (making imputations and assertions prejudicial to national integration) of the Indian Penal Code, 1860. Various provisions of the UAPA were also pressed into service.

Subsequently, even while incarcerated, he contested and won the assembly elections in 2021, defeating Bharatiya Janata Party’s Surabhi Rajkonwari. He was subsequently released after spending one and a half years in detention for his alleged role in the anti-CAA agitation, when a special NIA court discharged him, and three other persons, on the ground of the non-availability of material on record on the basis of which charges could be framed.

However, earlier in February, the high court set aside the order of the special court which was challenged by the federal agency. While remanding the matter back to the court for fresh charge-hearing against all the four accused, a division bench of Justices Suman Shyam and Malasari Nandi observed, “The impugned judgment has the trappings of an order of acquittal rather than an order of discharge. As such, the approach of the special judge, NIA, in our considered opinion, was clearly erroneous in the eye of law, thus having a vitiating effect on the impugned judgment.”

It is against this judgement from which the legislator has sought an appeal before the top court, arguing, inter alia, that the high court failed to even examine whether a prima facie case was made out in the matter before overturning the special court’s verdict. Nothing in his conduct could be traced back to an alleged controversy to destroy the national integrity or any terrorist activity, the Raijor Dal president has asserted. The MLA has also been critical of the BJP-led government ‘misusing’ the National Investigation Agency and the anti-terror statute to muzzle dissent.

The petition was filed through Supreme Court Advocate-on-Record Sahil Tagotra. Gogoi was represented by Senior Advocate Huzefa Ahmadi, Advocate Ninad Laud, and Tagotra.

Case Title

Akhil Gogoi v. The State (National Investigation Agency) & Ors. | Special Leave Petition (Criminal) No. 2504 of 2023

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