Mere Support To Terrorist Organization Without Intention To Further Its Activities Does Not Attract Section 38/39 UAPA

Key Takeaway

• The Supreme Court while delivering a judgement in the case of Thwaha Fasal V. Union of India stated that mere support or association with a terrorist organization is not sufficient to attract offences under Section 38 and 39 of the Unlawful Activities (Prevention) Act, 1967.
• The Coram consisted of Justices Ajay Rastogi and Abhay S. Oka who restored the bail granted to Thwaha Fasal and Allan Shuhaib and stated that the intention behind merging with the organisation is an important aspect to be taken into consideration.
• The Court stated that the offences falling under Section 38 if offences relating to membership and under Section 39 are offences related to support given to a terrorist organization.
• The intention behind providing support to a terrorist group is included under Sections 38 and 39 and that should be an important aspect while dealing with the case. The punishment granted under these Sections is imprisonment up to 10 years or fine or both.

Background

• In the given case, Fasal, a journalism student, and Shuhaib, a third-year law student were arrested in Kerala in November 2019. Both the accused were alleged to be members of the Communist Party of India (Maoist) and were booked under Section 20, 38, and 39 of the Act and the same was mentioned in the FIR.
• According to the police authorities, both the accused with another accused No. 3 were standing in a doubtful situation in front of Medicare Laboratory. When the police arrived, accused No. 3 ran away and nine items were seized from the bag of Fasal and two items were seized from a red plastic bag that belonged to Shuhaib.
• The Union of India had appealed for the accused to be punished and then the investigation of the case was transferred to the National Investigation Agency established under the Act. Upon investigation, a charge sheet was prepared against accused no 1 and 2 with offences punishable under Section 38 and 39 of the Act and also under Section 120-B of the Indian Penal Code. Additional charges were also made under Section 13 of the Act against accused no 2.
• A Special Court was established for NIA cases under the NIA Act and bail was granted to both the accused no 1 and 2. The bail granted to accused no 1 was confirmed by the High Court but the bail granted to accused no 2 was not confirmed on medical grounds and that he was younger.

Court’s Observation

• The Court while interpreting the provisions observed that books on caste, pamphlets about “freedom of Kashmir,” Maoism, etc, and other materials seized from the two youths betrayed the ideas propagated by the banned organization.
• The Court also stated that there was no need for a mini-trial because an accused in cases under UAPA is entitled to bail if the court believes that the accusation against the accused is prima facia true. The court does not have to see the merits and demerits of the case.
• The Court mentioned that the Union of India had charged them under Section 20 of the Act and later after the investigation was done and a charge sheet was made by the NIA they did not sanction such charges against the youth.
• The Court mentioned that the accused should not have been charged under Section 20 of the Act as it is only applicable when the accused is involved in the terrorist act planned by the terrorist group or organization. The materials seized from the accused youth at the time of arrest prima facia only established “association”, it did not establish the intention behind such association.
• The Court stated that the intention behind such association is a specific condition that comes within the scope of Section 38 and 39 and mere association or support to a terrorist group does not attract Section 38 and 39 of the Act.
• Courts Order
• The Court ordered that the appeal filed by accused no 2 is valid and that the order granted by the High court was revoked.
• The Court ordered for accused no 2 to be present before the Court within the maximum period of two weeks from the day the Supreme court gave its orders to allow him to complete the bail formalities.
• The bail was granted to accused no 1 and ordered that the Special Court should not be influenced by the findings and the observations made in the case while the case was under trial.

Questions

• Do you think the right to freedom of expression of the youths was violated?
• Is it fair for the two youths to be accused of crimes promoting terrorism on grounds of materials seized by the police authority?

Share your views in the comments section below.