On Tuesday, 24-year-old Thaha Fasal walked back into Viyyur High Security prison in Thrissur district, 117 days after he was let out on bail in the UAPA case, as the Kerala High Court cancelled his bail. The Kerala High Court bench headed by Justices A Hariprasad and K Haripal said that the lower NIA court that granted the two students — 21 year old Alan Shuhaib and Thaha — bail last September, "overstepped" and termed the two accused "protagonists" of CPI (Maoists).
The controversial case pertains to the arrest of the two students — Thaha, a journalism student and Alan, a law student — on November 1, 2019 by the Pantheerankavu police in Kozhikode district, over alleged Maoist links. According to the police, they confiscated literature allegedly linked to CPI (Maoists) from duo. The case was later taken up by the National Investigation Agency. This is also one of the cases which drew major criticism against the LDF-ruled state government after Chief Minister Pinarayi Vijayan and ruling CPI(M) leaders called the students 'Maoists.'
The High Court has now cancelled bail of one of the two students, Thaha, stating it holds a different view from that of the special court. Alan was allowed to continue on bail taking into consideration his health condition. The High Court tossed many key observations of the lower court, stating that national interest should prevail over individual rights.
The High Court judgment said that the NIA judgment by Judge Anil K Bhaskar has gone “overboard in scrutinizing the findings of the investigation agency” as if it was a “trial in the case” and that it has "oversimplified" and “watered down” material evidence. The judgment by the HC has been also criticised for dismissing important observations made by the lower court.
While the special court specifically noted in its order that though it is proved prima facie that the students have rendered support to CPI (Maoist), it is to be noted that there was not enough evidence to establish that they are cadets of the outfit or their activities were controlled by the group.
However, the High Court has termed the students "protagonists of the organisation," stating that there was an underlying element of mens rea (criminal intent). The High Court reached this conclusion noting that the students had "only" carried literature of the banned organisation at the time they were taken into custody by the police.
The High Court said, "If they, as youngsters, were interested in understanding and assimilating new and novel ideologies, a bunch of materials published by a particular outfit alone would not have been found in their possession and power. The underlying element of mens rea (criminal intent) cannot be overlooked. Therefore, this circumstance alone is sufficient to say, at least at this stage, that they are “protagonists of the organisation".
But it has to be noted that the students had not only carried books published by the banned organisation. In addition to the books published by CPI(Maoists), articles and pamphlets on various topics ranging from the importance of implementing the Madhav Gadgil report, books by Rosa Luxumberg, articles on the demolished Maradu apartment buildings, were also confiscated from them. While the special court had noted this point, the High Court did not.
Stating that most of the literature was available in the public arena, NIA court had noted that these do not incite or call for violence. Most of the issues like Maradu flat demolition, Madhav Gadgil report or Kashmir issue, “deals with the contemporary social and political issues” and all these issues are already debated and discussed in the social and political sphere, the NIA court had observed.
The NIA court had notably observed that even being a Maoist does not incriminate a person, unless the person "resorts to violence or incites people to violence or does an act intended to create a disorder or disturbance of public peace by resort to violence." On the contrary, the HC bench has commented upon certain allegations of the investigation agency that are based on statements of witnesses.
HC has pointed out that the special court failed to consider the witness statements that the students have "rapport with persons having close links with the banned organisation. There is also ocular evidence to say that they were regularly attending meetings of such organisations." The HC has not explained how rapport with persons having close links with Maoists is incriminating.
While accepting that the prosecution has not been able to find where the students are Maoists or not, HC states that evidence in such cases might not be readily available and that things have to be inferred from circumstances. "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. Matters have to be inferred from the circumstances," the High Court has said.
Critiquing the High Court judgment, prominent lawyer Gautam Bhatia, wrote in his blog, "In short: you are guilty if there is evidence against you. But you are also guilty if there is no evidence against you, because that only shows how good you are at operating “surreptitiously.” The State always wins. At this stage we are in Stalinist show-trial territory."
The High Court has also related the students not carrying their mobile phones, as something that is done as per the Maoist strategy. Mentioning about a document seized from the students, the High Court states, "This document is sceptical about telephone tapping, tracing a person in transit through phones, etc. It cautions its activists and reminds that all communications shall be done discreetly only. So in all probability, the respondents were keeping their mobile phones at home, obeying the diktat."
The Pantheerankavu police had allegedly seized two banners from Thaha that supported the secession of Kashmir from India. While the NIA court termed this as ‘unlawful’, the court considered the context — abrogation of Article 370 and 35 (A) of the Constitution of India — in which such a poster could have been carried by Thaha. The special court had observed that the right to protest is a constitutional right.
However, the High Court has termed this as “secessionist” and stated that national interest and security of the country should prevail over individual rights.
“Documents carried by the respondents depict Jammu and Kashmir as a neighbouring country. We are unable to approve the argument of the learned counsel that this has to be viewed in the light of the protests emerged against the amendment of the Constitution which conferred status of Union Territory on Jammu & Kashmir. In our view, the said documents carry the seeds of a secessionist ideology,” HC said.
Though it added that it has no doubts that rights and personal liberty of people are “sacrosanct,” it maintained that national interest should prevail whatsoever. “We have no doubt that rights and personal liberty are sacrosanct. Courts are bound to protect it. When individual rights are pitted against national interest and security, the latter should prevail,” it observed.
Notably, HC has critiqued the NIA judge multiple times, from the decision to grant bail, to the way he scrutinized the case, and even for using the names of Supreme Court judges while quoting SC orders.
“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,” HC stated.
Legal experts have critiqued why the HC questioned naming the SC judges. “This needs to be called out for what it is: two High Court judges browbeating and bullying a subordinate judge for daring to do his job, while signalling a servile fealty to the Supreme Court. And that is how the worst of hierarchies work: admonishment to those below, obsequiousness to those above,” writes Gautam Batia.
Meanwhile, on Tuesday, Thaha told the media that he will move Supreme Court against the High Court order cancelling his bail.