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Case Commentary – Thwaha Fasal v Union of India on October 28, 2021

Case Comment, Publications

COURT: Supreme Court of India

DATE OF JUDGEMENT: 28/10/2021

BENCH: Justice Ajay Rastogi;Justice Abhay S. Oka

APPEALLENT: Thwaha Fasal

RESPONDANT: Union of India

SUBJECT: Terrorism

FACTS OF THE CASE:

On 1st November 2019 three persons, now known as accused no.1(Allan Shuaib) of 20 years of age; accused no.2(Thwaha Fasal) of the age of 24 years; accused no.3; were found standing in a suspicious circumstances in front of the Medicare Laboratory in Kozhikode, by a Sub-Inspector of Police. Seeing a police vehicle, accused no. 3 ran away. The other two accused were intercepted. Accused no.1 was found with a shoulder bag and accused no.2 was carrying a red plastic file. During the investigation, documents containing radical literature were found. There were nice documents that were seized from the shoulder bag and two items from the red plastic file. The documents included a book on caste issued in India and a translation of dissent notes written by Rosa Luxemburg to Lenin. The First Information Report was registered on the same day under the charges of section 20(punishment for being a member to a terrorist gang or organization); section 38(offences relating to membership of a terrorist organization); and section 39(offences relating to support given to a terrorist organization) of the Unlawful Activities Prevention Act, 1967(UAPA).[i] The allegations that were put on the accused no 1 and 2 were that they were the members of the Communist Party of India (Maoist) [CPI (Maoist)]. [ii]According to section 2(m) of the UAPA, 1967 the CPI (Maoist) comes under the definition of “terrorist organization”. The Special Court of National Investigation Agency (NIA) acquitted the accused and after a successive prosecution in the High Court, accused no.1 was acquitted but the accused no.2 i.e. Thwaha Fasal was denied bail. After the decision given by the High Court the Union Government appealed the same case in the Hon’ble Supreme Court. The decision given by the High Court was also appealed by the accused no.2 (Thwaha Fasal).

ISSUE RAISED[iii]

The major issues that were raised are –

  1. Whether there was any prima facie evidence shown in the charge sheet to show that the accused persons were associated with the terrorist organization to further the organization’s activities?
  2. Whether the accused can be booked for committing an offence under section 38 and section 39 respectively, even when no intention behind committing the activities can be prima facie seized from the facts and occurrences of the case?
  3. Whether the strict and severe provisions of section 43D of the 1967 Act are required for the   offences changed?
  4. Another issue was whether individual interests and activities can come under the head of terrorist activities under the vicious Act of 1967?

CONTENTION

Arguments from the appellant’s side

Shri Jayanth Muthuraj, represented the accused no. 2 in support of the appeal and made the following contentions –

  • Even though the FIR was registered against both the accused no.1 and no.2 for offences punishable under section 20, 38 and 39 of the UAPA, 1967, the offence mentioned in section 20 were not invoked while filing the charge sheet. He mentioned that section 20 is not applicable to persons or accused who are not the members of a terrorist gang or a terrorist organization. He made a submission saying that the accused no .2 has been changed under section 13 of the 1967 Act which includes 5 years of punishment or fine or both.
  • He made a point that the sub section (5) of section 43D of the 1967 Act is applicable only to the persons who are accused of offences that are punishable under Chapter IV and Chapter VI of the 1967 Act. The pointed out that the accused is changed under section 13 which is a part of the Chapter III and hence only the offences that are punishable under section 38 and 39 of the Act shall be applied.
  • He touched upon the fact that the accused no 2 was found in possession of a book on caste issues in India, a book on organizational democracy, disagreement with Lenin. Further, he also gained attention to the material found during the house search of accused no.2 which included two red banners, a laptop, mobile phone with sim, two additional sim cards, two pen drives and three memory cards. He argued on the point that even though the accused no. 2 was found in possession of corporal data that was concerning the meetings and activities of the CPI (Maoist), section 38 and section 39 of the 1967 Act cannot be attached. He submitted that offence mentioned under sub section (1) of section 38 can only be made out if a person associates himself with a terrorist organization with an intention to further the activities of that terrorist organization. Similarly, an offence under section 39 cannot be attached as the accused was not involved in furthering the activities of a terrorist organization. He further pointed out that the charge sheet of the accused no.2 doesn’t specify or disclose any fact that shows that the accused was involved in furthering the activities of a terrorist organization.
  • He took the reference of the case of National Investigation Agency v Zahoor Ahmad Shah Watali, to show beyond doubt that the accused no. 2 is entitled to bail. He pointed out that the accused has been in custody for more than 572 days. He pointed out that there are 92 witness who are sited in the charge sheet and examining each of them would take a load of time.

Arguments from the Respondent’s side-

Shri S. V. Raju, made the following contentions from the respondent’s side

  • He pointed out that CPI (Maoist) comes within the ambit of “terrorist organization” under the Item no. 34 of Schedule 1 of the Unlawful Activities (Prevention) Act, 1967.
  • He touched upon the fact that the accused no.2 screamed out various slogans like “INQUILAB ZINDABAD”, “MAOISM ZINDABAD” “NAXALBARI ZINDABAD” etc. during the house search process. Further during the house search two red banners were found which demonstrated upon the struggle for independence of Kashmir, along with the medium that was used to prepare these banners.
  • By pointing out on the fact that various notebooks, soft copies were recovered from the digital devices of the accused no. 2 which contained party programme of the CPI (Maoist) is a proof that the accused was actively involved in the activities of the CPI (Maoist), which is considered a terrorist organization.
  • He submitted that who is member of a terrorist organization can be prosecuted under section 38 of the 1967 Act. He further contended that the prosecution can subsequently obtain the permission to prosecute the accused for the offence punishable under section 20 of the 1967 Act.
  • He also pointed out that the High Court by granting bail to the accused no.1 has disregarded the sub section (5) of the section 43D of the UAPA, 1967.
  • He pointed out that both the accused no. 1 and no.2 are active members of terrorist organization and that the prima facie findings show that they can be disentitled of bail.

RATIONALE

The learned judges in the apex court have addressed various issues and made notable revelations. In one instance, the court ruled that being associated with or claiming to be a member of a terrorist organization would not be considered an offense under Section 38 of the law. Similarly, merely providing support or assistance to other members of such an organization would not constitute an offense under Section 39, unless there is an intention to further the organization’s activities. The rationale behind this decision was supported by the PUCL case, where it was held that for offenses to be counted under Sections 20, 21, and 22 of POTA, there must be an element of “Mens Rea” discernible from the facts and circumstances of the case.

Furthermore, the court emphasized that even under the strict provision of Section 43D (5) of the UAPA Act, the constitutional courts still have the authority to grant bail to the accused if it is found to be in violation of the provisions of Part 3 of the Indian Constitution. This judgment aligns with the K.A. Najeeb case, where the Supreme Court provided a similar ruling and justification.[iv] Additionally, the court highlighted the importance of not engaging in a detailed re-examination of evidence, likening it to a mini court process. Instead, the courts should focus on taking cognizance of the evidence presented and base their judgments on it. The Zahoor Ahmad Shah Watali case was cited as an example of this approach. Additionally, the Supreme Court noted that the National Investigation Agency (NIA) failed to adhere to the requirements of Section 45 of the 1967 Act, which necessitates obtaining prior sanction from the central or state government to prosecute cases under the UAPA Act. As a consequence of this failure, the prosecution could not proceed under Section 20. Furthermore, the court pointed out that Section 13 falls under Chapter 3 of the Act, while Section 43D (5) can only be applicable to offences committed under Chapters 4 and 6. Consequently, the court concluded that Section 13 cannot be invoked to charge accused no. 2. As a result of not finding sufficient prima facie evidence in the charge sheet, the Hon’ble Supreme Court dismissed all charges against both accused individuals and subjected them to only a nominal punishment in the form of a fine, effectively acquitting them.

In conclusion, the Supreme Court’s decisions have clarified and shaped the interpretation of the law, especially regarding issues related to terrorism and constitutional rights.[v]

DEFECT OF LAW

The judgment given by the Supreme Court might prove deleterious in the long run by linking the offences under sections 38 and 39 of UAPA, 1967 with the section 20, which would further increase the scope available to the executive for curbing liberties.[vi] The verdict serves as a potent warning to a repressive government, while also revealing the double standards inherent in the UAPA law. Notably, Section 43D (5) of the UAPA explicitly prohibits bail for numerous offences under the Act.

Consequently, under the UAPA, the Court is compelled to rely solely on the prosecution’s account when determining bail eligibility. This is in stark contrast to the Criminal Procedure Code, where a charge sheet must be filed within a specific timeframe. However, the UAPA’s proviso in Section 43D (2) allows for detaining an individual for up to 180 days without even filing a charge sheet. As a result, this law obstructs a comprehensive examination of the case’s facts and unduly prolongs the trial by keeping the accused incarcerated indefinitely.

INFERENCE

The Thwaha Fasal case serves as a significant reminder of how incorrect interpretations can have far-reaching consequences and complicate various aspects of the Judicial System. It highlights the vital responsibility of investigating officials to exercise caution while interpreting the facts and circumstances of cases falling under the UAPA Act. The case also underscores that mere association or support to a terrorist organization does not constitute an offence unless there is a clear intention to further those activities.

Moreover, the case strongly advocates that wrongful interpretations of provisions should not infringe upon an individual’s liberty and freedom, thereby upholding the supremacy of Fundamental Rights enshrined in the Indian Constitution. It will be remembered alongside previous judicial pronouncements for championing the cause of natural justice against the notion implied by the UAPA Act that “an innocent will be considered guilty until proven innocent.” Furthermore, it emphasizes the detrimental impact of wrongfully interpreted cases on society and the burden they place on the judicial system through numerous appeals resulting from such erroneous interpretations.

[i]  Indiankanoon https://indiankanoon.org/doc/13080892/ (23 June 2023)

[ii] SCO https://www.scobserver.in/journal/sc-judgment-review-2021-terror-bail-under-the-unlawful-activities-prevention-act-1967-najeeb-thwaha-fasal/ (23 June 2023 )

[iii] Jus Corpus  https://www.juscorpus.com/wp-content/uploads/2021/12/25.-Yash-Singh.pdf (22 June 2023)

[iv] Lawyersclubindia  https://www.lawyersclubindia.com/judiciary/thwaha-fasal-vs-union-of-india-mere-association-with-a-terrorist-organisation-as-a-member-or-otherwise-will-not-be-sufficient-to-attract-the-offence-u-s38-39-of-uapa-unless-the-association-is-with-intention-to-further-its-activities-5587.asp ( 23 June 2023)

[v] The wire  https://thewire.in/law/uapa-supreme-court-excerpts-allan-shuaib-thwaha-fasal (23 June 2023)

[vi] Theleaflet https://theleaflet.in/has-the-thwaha-fasal-judgment-complicated-uapa-even-further/ (23 June 2023)