The Supreme Court on Thursday held that “mere association” with a terrorist organisation as a member or otherwise is not sufficient to attract an offence under the draconian Unlawful Activities (Prevention) Act of 1967.
Association or support for a terror outfit should be accompanied with an intention to commit acts to further the activities of the terrorist organisation, a Bench of Justices Ajay Rastogi and Abhay S. Oka clarified in a judgment which may create significant ripples about the State’s use of powers to arrest and detain young persons under the terror law.
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The court was dealing with Sections 38 (membership of a terrorist organisation) and 39 (supporting a terrorist organisation) of the UAPA. Both Section 38 and 39 attract imprisonment upto 10 years or fine or both.
“Mere association with a terrorist organisation is not sufficient to attract Section 38 and mere support given to a terrorist organisation is not sufficient to attract Section 39. The association and the support have to be with the intention of furthering the activities of a terrorist organisation,” Justice Oka, who authored the judgment, drew the distinction.
The court said an “intention of furthering the activities of a terrorist organisation” could be inferred from “overt acts or acts of active participation of the accused in the activities of a terrorist organisation which are borne out from the materials forming a part of the chargesheet”.
Justice Oka observed that an accused in such cases under UAPA was “entitled” to bail if the court was satisfied that “there are no reasonable grounds for believing that the accusation against the accused is prima facie true”. There is no need to conduct a “mini-trial” to decide the question of bail. The court is not supposed to examine the merits and demerits of the evidence.
The interpretation of the provisions of the 1967 Act is part of a judgment granting/confirming bail to two youths from Kerala booked under UAPA for alleged Maoist links. The judgment authored by Justice Oka said books on caste, pamphlets about “freedom for Kashmir”, Maoism, etc, and other materials, found on the two youths — Thwaha Fasal and Alan Shuhaib — at most betrayed a “fascination” about ideas propagated by the banned organisation, CPI (Maoist), at a “formative young age”.
Fasal, a journalism student in his twenties represented by senior advocate Jayanth Muthuraj, has already spent 572 days in prison. The apex court rejected the appeal filed by the National Investigation Agency (NIA), challenging the bail granted to Shuhaib, a third-year law student and Fasal’s co-accused, represented by senior advocate R. Basant and Raghenth Basant. Both were arrested in November 2019.
The FIR had also accused them under Section 20 (being a member of a terrorist gang or organisation) along with Sections 38 and 39 of the Act. Section 20 attracts punishment extending to life imprisonment and fine. However, the chargesheet later did not invoke Section 20 against the youths.
The court pointed out that the NIA did not take sanction from the Central government for prosecuting the youths under Section 20.
“In the absence of sanction and the fact that NIA did not even seek sanction for the offence punishable under Section 20, a prima facie case of the accused being involved in the said offence is not made out at this stage… There is no allegation against the accused nos.1 and 2 (Fasal and Shuhaib) of committing any terrorist acts,” the court said.
Section 20 is not attracted unless the terrorist gang or terrorist organisation of which the accused is a member is involved in a terrorist act, the court underscored while noting that the books, pamphlets, acts like the collection of membership fees and sloganeering at the time of the arrest prima facie only established mere “association”. The court said even elements of “constant association” or “support of the organisation for a long period of time” were not borne out from the NIA chargesheet.
“At a formative young age, the accused might have been fascinated by what is propagated by CPI (Maoist). Therefore, they may be in possession of various documents/books concerning CPI (Maoist) in soft or hard form. Apart from the allegation that certain photographs showing that the accused participated in a protest/gathering organised by an organisation allegedly linked with CPI (Maoist), prima facie there is no material in the chargesheet to project active participation with an intention to further the activities or terrorist acts of the terrorist organisation,” the court reasoned.
The NIA’s argument that they were found in the company of an alleged member of the outfit did not cause the court reason to pause. “That itself may not be sufficient to infer the presence of intention,” Justice Oka observed.
