Ten months after they were booked under the Unlawful Atrocities (Prevention) Act for alleged Maoist links, two Kerala students -- 21-year-old Alan Shuhaib and 24-year-old Thaha Fasal -- walked out of the high security prison in Viyyur on Friday after an NIA court in Kochi granted them bail. Judge Anil K Bhaskar of the NIA court, in a significant order has made various points -- from stating how prima facie the students cannot be considered as CPI(Maoist) cadets to how possession of writings lenient to Maoism does not incriminate a person.
It was on November 1, 2019, that Alan, a law student and Thaha, a journalism student, were arrested by the Pantheerankavu police officials alleging Maoist links.The duo was taken into custody as the police spotted them with another man -- identified as absconding third accused Usman -- under “suspicious circumstances”. Subsequent raids were held in Alan and Thaha's houses, from where Kerala police allegedly confiscated posters linked with Maoists. The case was later taken over by the National Investigation Agency.
Here are a list of key observations made by the NIA court while granting bail to Alan and Thaha. It is to be noted that while observing the same, the court has specified that its observations will be tentative and will not have bearings on the merit of the case.
>Alan and Thaha are not Maoist cadets : While the court stated that the materials on record prima facie prove that both accused had associated with, and rendered support to the banned CPI (Maoist) organisation, it also marked that “there are many missing links to establish that the students are ‘cadets of CPI(Maoist), or, that their activities were being controlled by the organisation”. Notably, the court says that though initially both Alan and Thaha were booked for the offence under Section 20 of the UAPA for being a member of a terrorist organisation, after the completion of the investigation, this section was dropped from the charge sheet. It is to be noted that CPI(M) led LDF government had faced severe flak after Chief Minister Pinarayi Vijayan and the party itself came out calling the students ‘Maoists’.
>Being Maoist does not incriminate a person: While saying that prima facie Alan and Thaha are not found to be Maoist cadets, the court also quoted the Supreme Court’s previous observation that “membership of a banned organisation will not incriminate a person unless he 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”. The NIA court further says that since there is not even a single allegation of violent action against both the accused, the possession of various seized documents “only indicate a leaning on the sides of the accused towards this banned organisation,” which the court says is not punishable.
The court further cited the Bombay High Court to say that a number of persons are influenced, and get attracted towards the Maoist philosophy because of the oppression of the weaker section which they might have experienced in the social set up. It is impossible to hold that all such persons are to be treated as members of a terrorist organization, or that they are liable to be punished for having faith in such philosophy.
Specifying about the allegation that Thaha had shouted slogans of Maoism and Naxalbari while police raided his house, the court mentions that this can also be taken as his inclination towards Maoist ideology and not an indication that he “stepped into the pat of violence to achieve the objectives” of the banned organisation.
>Right to protest is a constitutional right: Mentioning about the banner allegedly seized from Thaha, supporting the secession of Kashmir from India, the court states that this amounts to ‘unlawful activity’ but it also states that the context of this dissent has to be taken into account.
“Right to protest is a constitutional right. Here the objectionable banner relates to Jammu and Kashmir issue. It was raised in the aftermath of the abrogation of Article 370 and 35 (A) of the Constitution of India. This context is to be kept in mind. As I stated earlier, evaluation diverted from the context will lead to bad conclusions..It is only to be observed that, at this stage, it will be difficult for this court to form an opinion that the accusations are prima facie true,” the court said.
>Possession of Maoist and other literature: The Pantheerankavu police officials who raided the house of both Alan and Thaha had seized a total of 27 items, including electronic devices. To name a few, it includes books published by the CPI(Maoist), articles and pamphlets on various topics ranging from the importance of implementing Madhav Gadgil report, books by Rosa Luxumberg, articles on the demolished Maradu apartment buildings, banners calling out to ‘support the freedom struggle in Kashmir’- the court has divided the whole listed evidence as 12 sub categories.
Citing the seized documents as separate categories of evidence, the court has said that while most of it is the literature available in the public arena, certain handwritten documents seized from the accused students also does 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.
Notably, the court citing the Shyam Balakrishnan vs State of Kerala case of 2015 said, “Possession and reading materials on Communist ideology, Maoism, class struggle etc doesn't prove anything adverse to the accused. Being a Maoist is not a crime, though the political ideology of Maoists does not synchronize with our constitutional polity.”
Watch: Alan and Thaha coming out of prison after granted bail