Encounters and the arrest of two students under the UAPA have rocked Kerala in 2019

“Encounter” killings of four Maoists and the arrest of two youths under UAPA for allegedly possessing Maoist literature rocked the State in 2019 with even leaders of the ruling LDF opposing the police action.

Alan Shuhib, who was arrested under the UAPA being taken to a court in Kozhikode on November 2, 2019.

Very few instances of controversial police action in recent years have been criticised so widely and proved to be an embarrassment for the Left Democratic Front (LDF) government in Kerala as the “encounter killings” of suspected Maoists in the forests of Palakkad, and the continuing drama of the arrest of two young students at Kozhikode on November 1, 2019, under the Unlawful Activities (Prevention) Act (UAPA).

The two students, Allan Shuaib (19) and Thwaha Fasal (23), former Communist Party of India (Marxist) activists, were arrested with what the police said were “incriminating documents and propaganda material supporting the CPI (Maoist)” while they were meeting another accused, C.P. Usman, who has since been absconding.

The police initially charged the duo with Section 20 (punishment for being member of a terrorist gang or organisation), Section 38 (offence relating to membership of a terrorist organisation) and Section 39 (offence relating to support given to a terrorist organisation) of the UAPA.

Usman, the police said, was already facing three cases in Mananthavady, Pulpally and Thirunelli police stations of Wayanad district for the “distribution of Maoist literature”.

The arrests of the two students took place barely three days after an elite commando team of the State police, ‘Thunderbolt’, shot dead four Maoists over two days in an “encounter” at Attappadi in Palakkad. Those killed included Mani Vasakam, a top Maoist leader from Tamil Nadu, two other men and a woman.

The two incidents drew widespread condemnation from leaders of the ruling CPI(M) and its alliance partner the Communist Party of India (CPI), and the opposition parties. There was shock and surprise that in a Left-ruled State the police were shooting people down without providing them access to trial and charging young men under the draconian UAPA “for distributing Moist literature”.

Criticism of police action

Even as the courts initially rejected the bail applications of Allan and Thwaha, criticism rose on the use of UAPA against them, with even CPI(M) general secretary Sitaram Yechury, Polit Bureau members Prakash Karat and M.A. Baby, other LDF leaders and the opposition criticising the police action. They said the use of the UAPA was unjustified and that a magisterial inquiry should be held to find out if there was a genuine encounter involving exchange of fire with the Maoists or if it was a case of police excess.

The death of the Maoists inside the Palakkad forests occurred on October 28, 2019, and the very next day, a ‘fact-finding team’ of the CPI, the second biggest party in the LDF, concluded, following an inquiry with local people and other sources, that it was a “fake encounter” and submitted a report to Chief Minister Pinarayi Vijayan.

Meanwhile, within a month of the arrest of Allan and Thwaha, the LDF government drew criticism for “allowing the National Investigation Agency (NIA) to take over the investigation”. The case was re-registered by the NIA on December 18, 2019. Subsequently it announced that the investigation established that Allan, Thwaha and Usman “were members of the proscribed terrorist organisation, CPI (Maoist), and that they conducted secret meetings as well as committed certain unlawful activities for furthering the terrorist cause of the CPI (Maoist) in Kerala”.

Pinarayi Vijayan, who held the Home portfolio and had spoken against the use of UAPA against the two men immediately after their arrest, changed his stance later. During an acrimonious debate in the Assembly, as opposition leaders repeatedly asked “how someone can be branded Maoist solely for possessing pro-Maoist brochures” and expressed severe reservations about the encounter killing in Palakkad, the Chief Minister said: “In your desperation to oppose the CPI(M), you should not end up justifying the Maoists…. They are not lambs.”

He said the NIA had taken over the case before the State-appointed committee headed by a retired judge could conduct a review on whether the imposition of UAPA was justified in the case of the two youth. He also said that the Thunderbolt team’s encounter with the Maoists “was not a fake encounter and they did not come to surrender”.

The CPI(M) suspended Allan and Thwaha from the party soon after they were arrested and they continued to remain under judicial custody for several months. As the row involving the LDF government, a large section of civil society and political parties and leaders continued over the use of UAPA in the case, the CPI(M) and the opposition parties, continued to oppose the UAPA at the national and State levels.

The NIA filed the charge sheet against the two students on April 27, 2020, and, eventually, 10 months after they were first arrested by the Kerala Police, the Special NIA Court, Ernakulam, granted them bail on September 9, 2020, subject to certain conditions while observing that the NIA “failed to establish a prima facie case under the UA(P) Act against the accused”.

The bail order was widely appreciated as displaying good analysis and regard for personal liberty and humanism that was quite rare in cases invoking the UA(P) Act. It was littered with observations such as, “a provocative thought does not ipso facto prove preparation for crime”; “the right to protest is a constitutionally guaranteed right”; “a protest against policies and decisions of the government, even if it is wrong or based on a wrong cause, cannot be termed as sedition or an intentional act to support cession or secession”; and “the mere possession of books on Communist ideology, Maoism, class struggle, etc., does not prove anything adverse against the accused”.

Short-lived relief

The relief was, however, short-lived as on January 4 this year a High Court Division Bench of Justices A. Hariprasad and K. Haripal overruled the finding of the NIA court regarding lack of prima facie case against the accused. Instead, the High Court relied on Section 43D(5) of the UAPA, which imposes a higher threshold for grant of bail, and said, among other things, that “individual rights should subserve the national interest” and “when individual rights are pitted against national interest and security, the latter should prevail”. The High Court also observed that the Special Judge was under the wrong notion that the principle “bail is the rule, jail is the exception” is applicable in UAPA cases. It said that “after rushing through the materials”, it found the documents and literature seized from the accused to be “highly inflammable or volatile”.

The court said: “True, the prosecution could not prove that the respondents are members of an unlawful organisation. But these are surreptitious activities for which evidence may not be readily available, in black and white. Everything is done under the carpet, behind the curtain, without leaving any footprint. Matters have to be inferred from the circumstance.” The bench also laid stress on the allegation that Thwafa Fasal “shouted pro-Maoist slogans” when he was arrested, which it said was “blameworthy”.

Referring to Section 43D(5) of the UAPA, the Division Bench observed that at this stage it is only expected to see if there is any prima facie case and “it may be too much to insist on proof to show that the accused persons are members of a banned organisation, keeping in mind the fact that normally the activities of a banned organisation will be subterranean”.

“The nature of the materials revealed from the seizure mahazar dated 01.11.2019 and search list would prima facie show that they cannot be lightly brushed aside as innocent,” the High Court observed. The court order came in for severe criticism from many legal experts in the days that followed.

The High Court cancelled the bail to Thwaha Fasal, asking him to surrender immediately, while it allowed Allan to continue on bail considering his young age, medical condition and a different degree of involvement in the case.

While Allan is now continuing his law studies, Thwaha, who was a journalism student, moved the Supreme Court on March 17, against the High Court’s order cancelling his bail and arguing that the High Court failed to note that the “mere possession of Maoist literature is not a criminal offence”.

In July 2019 in a similar case registered during the previous United Democratic Front government a Division Bench of the Kerala High Court upheld a lower court order sanctioning Rs.1 lakh as compensation to Shyam Balakrishnan, son of a former High Court judge, who was detained illegally by the anti-naxal squad of the Kerala Police at Vellamunda in Wayanad on May 20, 2014, on the suspicion that he had links with a Maoist outfit.

Kerala has seen a steady rise in the number of cases charged under the UAPA since 2004. Official confirmation of the number of cases charged under the Act was not immediately available but one report, quoting police sources, says that as many as 151 cases have been charged under the Act since 2014. The figures were 30 in 2014, 35 in 2015 and 36 in 2016. It came down to four in 2017, and went up to 17 in 2018 and 29 in 2019 (until September). The Chief Minister, said in the Assembly that 123 cases had been registered under the UAPA during the previous UDF rule in the State, and that nine of them were taken over by the NIA.

At least eight encounter killings of Maoists have also been reported in Kerala so far. In 2016, two Maoists, including a woman, were killed in an encounter with the police inside the Nilambur forest range in Malappuram District on November 24. Earlier, in 2014, a man was killed under similar circumstances in Wayanad too.