Last Thursday, by a Judgment authored by Justice Abhay S. Oka for a bench also comprising of Justice Ajay Rastogi, the Supreme Court had declared that the two accused arrested from Kerala and charged under the Unlawful Activities (Prevention) Act, 1967 (UAPA) are entitled to bail.

Thwaha Fasal and Allan Shuaib were arrested in November, 2019, accused of association with a scheduled terrorist organization, the Communist Party of India (Maoist). After investigation, the Charge Sheet was filed against Allan Shuaib under Sections 38 and 39 of the UAPA and Section 120B of the IPC while, in addition, Sections 13 of the UAPA was also charged against Thwaha Fasal.

The Special NIA Court that refused bail to both the accused earlier, granted bail after filing of the Charge Sheet. While doing so, the Court brushed aside all the incriminating materials admittedly recovered from the accused, based on an interpretation of Sections 38 and 39 of UAPA. A Division Bench of the High Court though disagreed with the interpretation and the granting of bail to the accused, granted bail to Allan Shuaib alone, citing mitigating factors like his tender age and psychiatric issues.

  • Flawed Reasoning of the NIA Court

Sections 38 and 39 fall under Chapter VI of UAPA, thereby attracting the stringent conditions of Section 43D of the Act, requiring recording of prima facie finding that the accusations are true, for grant of bail.

Intention to Further Activities of Terrorist Organization

Section 38 of UAPA makes associating with, or professing to be associated with a terrorist organization, punishable with imprisonment for a term not exceeding ten years. However, the alleged action should be "with intention to further its (terrorist organization's) activities". Similarly, Section 39 that criminalizes giving of support to a terrorist organization also mandates the mental element of intention to further the activity of the terrorist organization for culpability.

The Special NIA Court of Kerala interpreted Sections 38 and 39 of UAPA to hold that the requirement of mens rea in the form of intention to further the activity of a terrorist organization, should be an intention to further commission of terrorist activities. That is, "its activities" should be read as "terrorist activities".

Such an interpretation does not convey the plain meaning of the provision. Activities of a terrorist organization are not limited to terrorist acts (Section 15) alone. A terrorist organization could be involved in various activities for strengthening its organization, spreading its ideology, gathering funds, recruiting members, creating sympathizers, training members etc. which are not terrorist acts per se.

For arriving at its conclusion, the NIA Court relied upon four Judgments of the Supreme Court, the first of which is PUCL vs. Union of India.

In the PUCL's case, the Supreme Court was considering a challenge to the constitutionality of Sections 20, 21 and 22 of the Prevention of Terrorism Act, 2002 (POTA) while rendering the observations that have been quoted by the NIA Court. For placing reliance on the PUCL's case, the NIA Court claims that Section 20 of POTA "corresponds to" Section 38 of UAPA and that Section 39 of UAPA "has its traces on" Section 21 of POTA.

The NIA Court failed to notice a fundamental difference between Sections 38 and 39 of UAPA and Sections 20 and 21 of POTA.

Under Section 20 of POTA, it an offence if a person "belongs or professes to belong to a terrorist organization". To that extent, it is similar to Section 38 of UAPA, which says that a person commits an offence if he "associates himself, or professes to be associated, with a terrorist organization". However, the fundamental difference is that Section 20 of POTA is silent on mental element or mens rea, whereas, Section 38 spells out that an offence is committed only if it is done with an "intention to further its activities". Similarly, Section 21 of POTA that makes it an offence to invite support for or arrange meetings of a terrorist organization, like Section 39 of UAPA, is fundamentally different, in as much as Section 21 is silent on mens rea, whereas Section 39 spells it out.

Interestingly, Sub Section (2) of Section 22 of POTA requires 'knowledge' about supporting or furthering the activities of a terrorist organization. There again, what is mandated is 'knowledge' and not 'intention'. It is trite law that 'intention' cannot always be inferred from 'knowledge'.

Hence the Supreme Court was considering provisions which do not prescribe the requirement of any mental element for culpability.

It was in such context that the Supreme Court, in the PUCL's case, 'read-in' the necessity of mens rea, in the absence of any signs implying legislative intention to exclude the same.

The Supreme Court 'read-in' the requirement of "intention or design to further the activities of any terrorist organization or the commission of terrorist acts" to Sections 20 and 21 of POTA. The Court held, "In other words, these Sections are limited only to those activities that have the intent of encouraging or furthering or promoting or facilitating the commission of terrorist activities. If these Sections are understood in this way, there cannot be any misuse".

As such, the above observations of the Supreme Court are completely irrelevant to interpreting the express requirement of intention to further the activities of the terrorist organization, under Sections 38 and 39 of UAPA.

The next three Judgments that the NIA Court relied upon, as noted by the NIA Court, are judgments delivered by the same Bench headed by Justice Markandey Katju, a few months before his retirement, in the year 2011.

First among them is Stateof Kerala vs. Raneef delivered on 3rd January, 2011. In that case, a doctor who treated the person accused of chopping off the palm of a professor in Kerala for blasphemy, was charged inter aila under Section 15 (terrorist act) read with Sections 16 (punishment for terrorist act), 18 (punishment for conspiracy), 18 (B) (punishment for recruitment done for terrorist act), 19 (punishment for harboring) and 20 (punishment for membership) of UAPA. The Kerala High Court granted him bail without referring to the provisions of the UAPA, on that ground that the accused was performing his duty as a doctor.

On Appeal, the Bench of Justice Katju referred to Section 20 alone, and stated that the organization that the accused is allegedly a member of, the PFI, had not been declared as a terrorist organization and that even if it had been, two Judgments of the US Supreme Court which held that mere membership without specific intention to further the illegal aims of the organization will not result in culpability, applies in India.

Again, the reliance placed by the NIA Judge on this Judgment is totally misplaced since Section 20 of UAPA is silent on mens rea, whereas Sections 38 and 39 are not. Moreover, the declarations in the US Judgment that Justice Katju adopted does not help in interpreting the words "further its activities" in Sections 38 and 39.

The 2nd and 3rd Judgments (Arup Bhuyan and Indra Das) are Judgments delivered by the same Bench of Justice Katju on 3rd and 11th February, 2011 respectively, setting aside convictions under Section 3(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA).

Here again, Section 3(5) of TADA that criminalizes membership of a terrorist organization, is completely silent on mens rea. The Bench of Justice Katju followed its earlier Judgment in the matter of Raneef to hold that "membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence…".

Interestingly, the Central Government sought a review of the aforesaid two decisions in the matter of Arup Bhuyan and Indra Das on the ground that the provision of TADA was read down without hearing the Central Government and without the constitutionality of the law being under challenge. It was argued that the Bench wrongly followed its earlier Judgment in Raneef's case, which was delivered in the context of an organization (PFI) that was not declared as a terrorist organization. Upon considering the argument of the Central Government and the State of Assam that the interpretation of Justice Katju will result in the spread of terrorism, a Bench of Justice Dipak Misra and Justice Abhay Sapre referred the question to a larger bench on 26th August, 2014.

The NIA Court notes the factum of reference to a larger bench and the arguments about dissimilarities of facts, only to hold that the principle laid down by the court continues to bind.

In short, the NIA Court relies upon judgments rendered in totally different contexts to interpret provisions that expressly insist for a specific kind of mental element and to give it a meaning that is different from its plain meaning.

There is yet another reason why the interpretation of the NIA Court is erroneous.

Section 18 of the UAPA criminalizes conspiring, attempting to commit, advocating, abetting, advising, inciting or knowingly facilitating the commission of a terrorist act. Going by the dictum in PUCL's case, Courts will read-in the requirement of mens rea to Section 18 as well. Once that happens, there will be little difference between Section 18 on the one hand and Sections 38 and 39 on the other, based on NIA Court's interpretation.

Rejection of All Incriminating Materials

Based on the far-fetched interoperation that Sections 38 and 39 require an intention to facilitate commission of terrorist activities, the NIA Court rejected all incriminating materials and circumstances produced by the NIA. The Court held that possession of pamphlets and notices on behalf of the terrorist organization, preparation of writings and banners for the terrorist organization, possession of writings issued for internal circulation of the terrorist organization, meetings with members of the terrorist organization, note written in code language and even possession of minutes of meeting of the terrorist organization will not prima facie constitute offence under Sections 38 and 39.

The incriminating evidence clearly indicates that the accused actively participated with an intention to further the organizational activities of the terrorist organization. However, using the interpretation that it gave, the NIA Court rejected them since they were short of facilitating terrorist activities. As for materials supporting 'freedom movement of Jammu and Kashmir' and its secession from India, the Court held that they have to be seen in the context of abrogation of Article 370 and the protests against the governmental decision.

  • The High Court's Findings

Before the Kerala High Court, the Assistant Solicitor General argued "that the trial judge was placing reliance on authorities having no bearing in this case." The Division Bench disagreed with the interpretation of the NIA Judge and held that "the trial Judge has failed in understanding terrorist acts vis-a-vis the activities of a terrorist organization." The Division Bench of the High Court clearly disapproved the interpretation of the NIA Judge of the words "its activities" in Sections 38 and 39. The High Court set aside the bail granted to Thwaha Fasal, but granted bail to Allan Shuaib citing mitigating circumstances like his tender age and psychiatric issues.

  • Supreme Court's Reasoning or Lack of It While Overturning Judgment of High Court

The question whether the statute requires intention to further 'activities of the terrorist organization' or 'terrorist activity' was the crucial issue to be considered to determine the correctness of the order of the NIA court and the declaration of law by the High Court.

The Bench of Justice Rastogi and Justice Oka returns a clear finding that, "Taking the charge sheet as correct, at the highest, it can be said that the material prima facie establishes association of the accused with a terrorist organisation CPI (Maoist) and their support to the organisation."

However, on the crucial question of the nature of intention required, the Bench had only this to say:-

"The association must be with intention to further the activities of a terrorist organisation. The activity has to be in connection with terrorist act as defined in Section 15." (emphasis added) (para 11)

"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 charge sheet to project active participation of the accused nos.1 and 2 in the activities of CPI (Maoist) from which even an inference can be drawn that there was an intention on their part of furthering the activities or terrorist acts of the terrorist organisation." (emphasis added) (para 34)

While it appears from paragraph 11 of the Judgment quoted above that the Bench is accepting the interpretation of the NIA Court without any reasoning, the conclusion is ambiguous in paragraph 34.

Hence, the Bench, without any discussion in that regard, appears to have held that the intention needed is either of furthering activities of the organization or furthering terrorist activities. The Bench then finds that the prosecution could not establish the intention of either type in the case.

Extra-Statutory Requirement

The Bench also holds that, "…prima facie, their constant association or support of the organization for a long period of time is not borne out from the charge sheet" (emphasis added). It is not clear where the Bench got the requirement of constant association or long period of association from. Neither the statute nor the precedents prescribe any frequency or length of association with a terrorist organization for culpability.

Double Standards on Lack of Prima Facie Finding by High Court

The Supreme Court holds that the High Court did not record any prima facie finding on presence or absence of material to show intention on the part of the accused.

Firstly, the same is not correct since the High Court did discuss the material collected by the NIA, though not is such detail as done by the NIA Court, and it did record its prima facie finding.

Secondly, if the High Court did not record its prima facie finding required under Section 43D, the Supreme Court could not have upheld its decision to grant bail to Allan Shuaib. The Bench circumvents this obvious difficulty by stating that, "However, we have examined the material against both the accused in the context of sub-section (5) of Section 43D". If that be the case, alleged lack of finding on the part of the High Court could not have been a ground to set aside the Judgment in respect of Thwaha Fasal.

No Discussion About Clinching Materials

Though the Supreme Court listed out the materials produced by the prosecution against the accused, the singular reason it gave for holding that prima facie there is no material to draw inference about active participation or intention of furthering activities of terrorist organization is the following:-

"At formative young age, the accused nos.1 and 2 might have been fascinated by what is propagated by CPI (Maoist)."

As mentioned above, the materials produced by the prosecution varied from minutes of meeting, notices and pamphlets of the terrorist organization to messages in code languages and self prepared banners calling for secession of Kashmir from India.

  • Way Forward - Pending Reference Before Larger Bench

The Supreme Court missed an opportunity to settle the question, despite clear and contradictory findings on the interpretation of the provisions by the Trial Court and the High Court.

The larger bench that was to be constituted as per the 2014 direction to reconsider the Judgments of Justice Markandey Katju's Bench, has yet not been constituted. The then Solicitor General had submitted before the Supreme Court in the review that if the decisions of Justice Katju are allowed to stand, "various laws in other enactments would be affected". Hopefully, a larger bench will be constituted soon, considering the importance of the subject matter to national security and its decision may settle the issue.

[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]