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For seven years, Jaison C Cooper and Thushar Nirmal Sarathy, booked under provisions of the Unlawful Activities (Prevention) Amendment (UAPA) , witnessed the stigma and fear of people around them chipping at their personal and professional lives. Cops harassed their friends and associates asking them to stay away from the duo, alleging that they have Maoist connections. On March 15, at the Vanchi Square at High Court junction in Kochi, a venue for public meetings and dharnas, the two activists of Janakeeya Manushyavakasha Prasthanam, a human rights organisation, sat on a day-long protest fast. They had only one demand: The Kerala Police should, without any further delay, submit the chargesheet in the UAPA cases registered against them in 2015 or take steps to scrap them.
“Why did they register cases against us? What are the offences we committed? The state has the responsibility to tell us the reasons why we were branded as criminals for the past seven years. It is our fundamental right,” says Thushar Nirmal Sarathi, an advocate by profession handling UAPA cases. While Thushar and Jaison are the first to have an ‘upavasa samaram’ demanding that the police file a chargesheet against them, their case is not isolated.
The police are yet to submit a chargesheet in the first UAPA case filed in Kerala, against P Govindan Kutty, editor of People’s March; the case was filed in 2007, but even after 14 years, there has been no logical conclusion. Swapnesh Babu, an activist associated with the Njattuvela cultural group, is also facing a similar fate in a case registered in 2013.
Under the UAPA, the stipulated time frame for filing a chargesheet is 90 days, which could be extended to 180 days by the court. The accused are eligible for bail if a chargesheet is not filed by the police.
Thushar feels that the delay in submitting the chargesheet is not merely a legal issue but a political one. According to him, police have failed to submit chargesheets against at least six persons, including himself and Jaison, booked under the UAPA.
According to information tabled by the Chief Minister Pinarayi Vijayan on the floor of the house in June, 2021, a total of 145 UAPA cases were registered in the state between May 25, 2016, and May 19, 2021. The police on completion of investigation has to send relevant files to the review committee, headed by a retired judge, formed as per UAPA, which decides on the merit of the case. While the State Police Chief sought permission for prosecution approval from the government for eight cases, only three got the nod.
Both Jaison Cooper and Thushar Nirmal were arrested by the police towards the end of January, 2015.
On January 29, 2015, the office of the National Highway Authority in Kalamassery in Ernakulam was vandalised by miscreants allegedly affiliated to the Communist Party of India (Maoist). Two similar incidents preceded the act of vandalism in the months of November and December in 2014 — an attack on the office of Nitta Gelatin, a company facing protest by local residents over environmental pollution; and a KFC outlet in Palakkad. According to the police, these attacks were organised by the CPI (Maoist) to mark the 10th anniversary of the outfit, which was formed through the merger of the Communist Party of India (Marxist–Leninist), the People's War (People's War Group), and the Maoist Communist Centre of India (MCCI) in 2004.
Soon after the attack, on January 29, 2015, the Kerala police entered the office of the state Insurance department at Ravipuram in Ernakulam and arrested Cooper, who works as a clerk. The arrest, allegedly in violation of norms, was followed by a raid at Cooper’s home and the Ernakulam South police registered an FIR under Section 13(1)(b) of the Unlawful Activities (Prevention) Act. After the attack on Nitta Gelatin, Jaison was picked up by the police for interrogation and later released.
On the next day, Thushar, who was in Kozhikode to organise an anti-UAPA convention, got to know about Cooper’s arrest and organised a press meet. Soon after the press meet, policemen in plain clothes arrested him and took him to Chemmangad police station in Kozhikode. A team of police officers, led by Baiju Poulose, then a sub-inspector of police, recorded his arrest and took him to Ernakulam in the evening. “They tied my hand to the jeep handle. I was taken to court the next day and got remanded for seven days in police custody,” said Thushar.
According to the FIR registered under Section 10 and Section 13 of the UAPA, Thushar has been accused of being a member of a front organisation of the CPI (Maoist) group, and having played a role in the vandalising of the Nitta Gelatin office. It also said that several leaflets supporting the views of CPI (Maoist) group were recovered from his house.
“During the raid, the police selectively picked communist literature from my house. I had a huge collection of books on Marxism, Maoism, Gandhian thoughts and Islam at my house. They seized a photocopy of the power of attorney document in the name of Shyna and Roopesh, who are allegedly Maoist leaders. As a lawyer, I was handling his case. They also seized a pamphlet by the Western Ghats Special Zonal Committee. None of them had anything incriminating. All the books they seized were publicly available,” said Thushar.
Thushar said several judgments have clarified that believing in Maoist ideology is not a crime but the state and judiciary are reluctant to follow it. “In many UAPA cases, police produce books, pamphlets, notices, and political discussions as incriminating evidence. This is part of the tendency to censor thought itself and criminalise exploration of alternate political possibilities. Be it Leftist, Ambedkarite or Islamic, the state views alternate political thought through the prism of terrorism,” said Thushar.
Justice PS Gopinathan, chairman of the statutory authority formed for considering the UAPA cases for prosecution clearance, and a former judge of the High Court, had stated that an FIR could not be lodged under UAPA for mere possession of pamphlets supporting Maoists.
Thushar and Jaison were granted bail on March 17, 2015. While granting the bail, the court ordered them to surrender their passports before the Ernakulam Sessions court. They were also asked not to cross the state’s borders without judicial permission and to present themselves before the investigating officer on all Mondays between 9 am and 11 am.
Thushar alleged that the travel restrictions have affected his professional life. “A few years ago, Maoist leader K Murali was arrested in Maharashtra. His friends and relatives were concerned over his health and wanted me to visit him. As I had travel restrictions, I approached the sessions court. While granting permission, the court ordered that I must report to the investigating officer first, cannot talk to anyone apart from the accused and should report to the investigating officer on return. Instead of extending the privilege of a lawyer, I was treated as a criminal,” said Thushar.
Police also failed to submit the chargesheet in the attack on the National Highway Authority of India office in Kalamassery, in which two persons have been booked.
“We are sure, they have no incriminating evidence against us. If they had any solid evidence, they would have filed a chargesheet. There is a possibility that they might forge evidence against us as they did in the Bhima Koregaon case,” Thushar said.
Thushar and Jaison allege that the state is limiting their social circles and restricting their political activities by branding them as criminals. Thushar and his organisation Janakiya Manushyavakasha Prasthanam had been actively involved in the protest by the residents in Chellanam, a coastal area in Kochi, facing threat of coastal erosion and flood. According to Thushar, the police reached out to the members of Chellanam Janakeeya Vedi, a committee in the forefront of the agitation, and warned them to stay away from them as they are Maoists. “Local politicians and the church reiterated the police version. During the Sunday prayer, a church in Chellanam warned the residents to stay away from these ‘Maoists’,” an activist associated with the committee said.
“The saddest fact is that society is also endorsing the police version. There is a social media campaign that branded me as a Maoist lawyer. People identify us as Maoists during conversations. Many of our friends are hesitant to include us in their social circles,” Thushar said.
Jaison alleged that the police contacted many of their friends as part of the state’s deradicalisation project. “Many friends later told us that they were interrogated by police for having connections with us. Police visited the homes of people who advocated for our release. They told them that we are frontal workers of the banned Maoist party and we are the masterminds behind Maoist attacks in Kerala,” Jaison said. An office colleague was interrogated for liking his Facebook posts. “Due to the trauma caused by police behaviour, she deactivated her social media accounts for at least a year,” Cooper said.
Apart from the social stigma, both of them faced several difficulties in their professional lives too. In 2018, Jaison Cooper got a transfer order to join the Thiruvananthapuram office of the Insurance department. He alleged that the police submitted a report that he might influence witnesses if he was allowed to continue in the Ernakulam office. "I approached the tribunal challenging the transfer order. They transferred me to the Alappuzha office. I approached the Kerala High Court. I got transferred back to Ernakulam office almost a year later,” Cooper said. He alleged that he has not been getting salary increments and other allowances since 2015.
Thushar, a lawyer whose track record involves dealing with UAPA cases, is often referred to by prosecution lawyers as a ‘Maoist lawyer’. In the Allan-Thaha case, I filed the vakalatnama for Thaha. The prosecutor informed the court not to give me access to case-related documents as I was an accused in a similar case,” Thushar said.
In another incident, during the trial of alleged extrajudicial killings in Manjakkandi, the police served notice to Thushar, who was assisting a lawyer representing the family of the victims, asking him to report before them for interrogation. “I replied that I acquired the information about the case through my clients and media reports. I told them that I will not appear for the interrogation as it violates my professional liberty,” said Thushar.
Thushar and Jaison believe that they are being targeted by the government for their human rights activism which is by nature political. “Since its inception in 2007, our organisation, Janakeeya Manushyavakasha Prasthanam, has made many remarkable interventions in Kerala. We conducted many fact-finding missions including the one on police atrocities against the Dalit Human Rights Movement (DHRM) activists and attack on Dalit colonies in Varkala; the 2009 Beemapally police shooting; police lathicharge in Kinaloor; and the exploitation of inter-state labourers. We also played an important role in organising protests at Chellanam, the Nitta Gelatin company at Kathikudam, and the Paliyekkara toll plaza against anti-people development plans. The organisation has also been vocal against the anti-people UAPA since 2007,” Cooper said.
In May of 2021, he got a call from the office of The Wire, a news portal, saying that his phone number was in the leaked database of phone numbers listed as potential targets in attacks using Pegasus, an Israeli spyware, allegedly used by the Indian government. The callers warned him that his phone was being tapped by the Union government for at least a year. Cooper suspects that police might have fabricated evidence against him as they did with the Bhima Koregaon accused. “We all know how they fabricated evidence against Bhima Koregaon suspect Rona Wilson and others. As my name was in the Pegasus list, I suspect they might fabricate evidence against me,” says Jaison, who feels an early chargesheet would help avert this.
Both Jaison and Thushar allege that police have been vilifying them for long by continuously fabricating cases against them. Following the death of the Jesuit priest Stan Swamy, an accused in the Bhima Koregaon case while he was in jail, a group of activists in Ernakulam had organised a protest gathering. Although they were not present at the protest venue, police allegedly registered cases against Jaison and Thushar and many other activists under the Epidemic Act. “I was attending a cross-examination at the NIA court that day. We got to know about the case only after we got a call from the police station,” Thushar said. Similarly, Jaison was accused in a case registered by Kerala police against activists protesting the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest (Sarfaesi) Act. On January 27, 2016, activists protesting the Sarfaesi Act at Panambukad in Kochi, poured kerosene over their bodies to stop the police from evicting a landless family, cheated by the loan mafia. Jaison and Thushar, who got to know about the protest, reached the venue and met the family. The next day, they were surprised to see that Jaison’s name was included in the FIR registered against the protesters who poured Kerosene over their bodies.
P Govindankutty, editor of People’s March, a magazine registered with the Registrar of Newspaper for India (No: KER/ENG/200/2051), was arrested on the midnight of December 19, 2007 from the office of his magazine in Thrikkakara. During the raid, police confiscated his computer, copies of People’s March magazine and the RNI registration certificate. “The registration certificate was not included in the seizure report. As I refused to sign the report, they included it,” said Govindankutty.
According to the FIR, the arrest, made in 2007, was made over alleged seditious content in an article published in 2002 on Chandrababu Naidu, who was the Andhra Pradesh Chief Minister during the time. Cases were registered against him under sections 124(a) and 153(b) of the Indian Penal Code and section 13(1)(b) of the UAPA Act. “I was arrested for an article published five years ago. So was it not seditious till then?” asks Govindankutty, who started a hunger strike in prison to protest against his arrest. Govindankutty was granted bail on February 24, 2008, more than two months after his arrest.
Govindankutty said he met the bail conditions by reporting before the Thrikkakara station house officer (SHO) every alternate Sunday. “I repeatedly asked them to produce my chargesheet and ensure a speedy trial. By the end of 2011, the SHO said he will inform me over the phone when the chargesheet is ready and there is no need for me to come to the station any longer,” Govindankutty said.
As there was no progress, Govindankutty petitioned the Kerala Chief Minister requesting him to withdraw the case and return the seized articles, but he did not receive a reply.
Many political and cultural activists, who have UAPA cases against them, reached the protest venue at the Vanchi Square and extended solidarity to the duo on March 15. The activists include Allan Shuaib, Thaha Fasal, MN Ravunni and CK Gopalan of Porattam, P Govindankutty, Swapnesh Babu, and Ajithan. Swapnesh, who is associated with Njattuvela, a cultural organisation, was arrested in 2013 at the boat jetty in Ernakulam for sticking posters against the illegal arrest and the assault on activists associated with the radical Left groups such as Revolutionary Democratic Front and Porattam. Most of them were arrested for distributing pamphlets, sticking posters demanding boycott of elections and hosting cultural events.
Baby PV, Assistant Commissioner of Police, Thrikkakara, who is the investigating officer in the case registered against Thushar, said the delay is due to formalities and processes involved in UAPA cases. “The evidence collection and sanctions from both the central and state government will take time. Identifying the co-accused in such cases also requires time. We are hoping to submit the charge sheet soon. This is not a normal case. Most of their alleged actions were committed underground,” he said.
Justice PS Gopinathan said only the cases registered after his appointment are before the review committee. “The committee’s duty is to examine if there is any prima facie evidence against the accused in the charge sheet submitted before the review committee for sanction. There is no time limit in UAPA cases to produce the charge sheet though it be submitted in a time-bound manner. The delay is mostly due to systemic lapses at the investigative and administrative level,” Gopinathan said.
According to Kerala High Court lawyer Advocate KS Madhusoodhanan, who appeared for Thushar and Cooper, while the court heard their bail pleas, the delay in submitting the charge sheet is a violation of human rights. “They have to strictly follow bail conditions that include travel restrictions and face social stigma. Even their families go through an ordeal. Speedy justice is a fundamental right guaranteed by our constitution. In UAPA cases, such fundamental rights are floated by the lawmakers themselves. By delaying the charge sheet, the state is killing them slowly through denial of human rights,” Madhusoodanan said.
Thushar alleged that the delay in filing the charge sheet is also taking away their opportunity to prove innocence. “In our judicial system, the accused gets an opportunity to prove his side only during the final stage of the trial. Until then only the prosecution version is heard. So our voice will remain unheard till they file the charge sheet,” Thushar said.