November 1: A reminder of the state’s power to brand anyone as terrorists

While Alan Shuhaib and Thwaha Fazal are out on bail, a year after their arrest on charges under UAPA, no changes have been made to control the use of draconian laws to censor people
November 1: A reminder of the state’s power to brand anyone as terrorists

November 1, 2020, would mark one year since two Kerala students had been caught in one of the most draconian law in India, by a party that philosophically disagrees to it. Around a year ago, Kerala police arrested Alan Shuhaib and Thwaha Fazal for alleged terrorist links. At least that’s what the official charge sheet claimed when the police booked them under various sections of the UAPA (Unlawful Activities Prevention Act). This piece of law has come under criticism from various walks of life. In fact, the only people that enjoy it seem to be those in power. Why that is can be learnt from Alan and Thwaha’s experience.

In 2019, Kozhikode police picked up Alan and Thwaha from Pantheeramkavu because they were sharing certain pamphlets “under suspicious circumstances”. The officials also reported the presence of a third person — Usman — who ran away as the police approached. After the initial search, the police found pamphlets relating to the Maoist party. Since the mere mention of the word causes panic, the police decided to charge the youngsters with various sections of the UAPA. With which they raided their homes and seized “controversial and Maoist literature”.

Ironically, one of the books seized was written by Rosa Luxemburg, the famous Marxist and feminist. With the “controversial” literature, the police had “enough evidence” against the two

When the youngsters had approached the Magistrate for bail, their application was denied because their relation to the banned organisation Communist Party of India (Maoist) — note that the ruling party is CPI (Marxist) — was “evident” from the seized materials.

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There are two key events to remember in the arrest. One happened before the arrest, and probably indirectly led to Alan and Thwaha’s arrest. It was the “execution” of four Maoist members in Palakkad. Human rights activists and others have called it foul play, and the family had demanded that another post mortem has to be done by an external agency. This was also a cause for protest, and Alan and Thwaha did protest it when they were at that market. However, they were not alone. Many across the state and country had protested it. It was a cause for concern, that the state can “play theatre with their executions”. The second incident was the CPI (M) — the “Marxists” — deciding to remove Alan and Thwaha from their party. Yes, the two youngsters were members of the party and so was their family. However, the party wanted to keep their distance from “extremist elements” and thus came to the decision. However, ten months later, another court would use the same evidence to come to a logical conclusion.

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A few weeks after the arrest, the case would be handed over to the National Investigation Agency, with the state government opposing the move. The opposition called it “crocodile tears”. Nothing changed for Alan and Thwaha. The NIA would follow the same evidence, come to the same conclusion, make the same accusations, and file the same charge sheet. The NIA is also infamous for their attacks on “urban Naxals” and other dissenters. And that is what it comes down to. Alan and Thwaha disagreed with the state, and the dissent was met with UAPA that has been trained at dissenters in the past many years. This would be evident from the bail trail in September of this year.

During the trial in September, the NIA court observed that “the context of dissent has to be taken into account”. Adding that the right to protest is a constitutional right, the aspect of them protesting cannot be, without the proper context, be accepted as prima facie true. The Court also commented on the suspects’ possession of “questionable literature”. Mere possession of questionable literature (the court notes later that the literature is available in the public arena) doesn’t amount to strong evidence of philosophical resonance, the court said. The court also classified the documents into subtexts and mentioned, “Possession and reading materials on Communist ideology and Maoism doesn't prove anything adverse to the accused. Being a Maoist is not a crime, though the political ideology of Maoists does not synchronize with our constitutional polity.”

For a state with a communist government at the helm, especially when their closest ally CPI heavily criticises the CPI (M) for using UAPA, this use of the draconian act is out of character. Instead of rolling back, the government has decided to bring another one in. The new amendment to the Kerala Police Act can allow the police to suo moto charge someone with defamation

The NIA court makes further observations that reiterate the fact that the whole case wasn’t about whether they were Maoists or that they were spreading pamphlets with “questionable content”. The content was questionable because it questioned the government — because it criticised the state. And that is unacceptable. The next possible route would be to charge them with UAPA — humorously known as Unlawful Prevention of Activities Act — that imposes few conditions on the state and gives the police the power to brand anyone as a terrorist, without a trial. Kerala is not the only culprit in this regard. The Centre is infamous for having used it without impunity.

For a state with a communist government at the helm, especially when their closest ally CPI heavily criticises the CPI (M) for using UAPA, this use of the draconian act is out of character. Instead of rolling back, the government has decided to bring another one in. The new amendment to the Kerala Police Act can allow the police to suo moto charge someone with defamation. This applies to all forms of media, and it can potentially be used to censor the media. With the recent cases mounting against the Pinarayi Vijayan-led government, it needs to be seen whether this comes into effect or not.

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