SC’s High Bar For Terrorism Charges Can Pose Problems in Regions Like J&K

The court has said mere support to terrorism without an intention to promote it doesn’t attract UAPA charges.

5 min read
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In a move that dismayed counterterrorism professionals, the Supreme Court ruled that mere support to terrorism without any intention to further its activities does not attract the provisions of the UAPA (Unlawful Activities Prevention Act), 1967. It was a just ruling in this particular case, in that it demanded more from the prosecution than had been presented to the court to deny bail to two young men. The trouble is that its ruling may cause trouble elsewhere, particularly in the valley of Kashmir, where terrorism is on the rise.


The Kerala Duo

The case before the court involved a duo from Kerala – Thwaha Fasal and Shuaib – students of journalism and law, who were arrested by the National Investigation Agency (NIA) on 2 November 2019 under the Unlawful Activities Prevention Act (UAPA) for their alleged Maoist links. Fasal was granted bail in September, which was, however, revoked by the Kerala High Court, and he was back in detention in January. The basis for the arrest was that three youth were standing ‘in a suspicious manner’ outside a Laboratory in Kozhikode. One ran away and the other two were caught. Investigations revealed a red file carried by one of them, a book on Caste Issues in India and a book “Organisational Democracy, Disagreement with Lenin”.

A house search found another 18 documents and banners calling upon people to support the freedom struggle of Jammu and Kashmir. Details of seized material show innocuous material regarding revolutionary writings (including Che Guevara, whose pictures are seen even in tea shops), video clips of ‘Kashmir bleeding’, photographs of one of them attending a meeting in October 2019 by Kurdistan Solidarity Network, minutes of meetings of the CPI-M, and nothing very much else. The charge was that the two were members of the CPI(M), a banned terrorist organisation on the basis of these documents.

The court, however, granted bail on the grounds that their activities did not (yet) align with Article 38 and 39 of the UAPA ( membership of a terrorist organisation, and support).

That seems fair in a country where some 69 per cent (330,457 of 476,600) of prisoners languish as undertrials. The judgment, however, is only for the limited case of granting bail. The case will proceed further, with the prosecution required to prove its various charges.


The Problem – Overground Workers Are Hard to Nab

The problem is this – the judgment also states, “Mere association with a terrorist organisation as a member or otherwise will not be sufficient to attract the offence under Section 38 unless the association is with an intention to further its activities. Even if an accused allegedly supports a terrorist organisation by committing acts referred (which includes ‘invites support, arranging meetings etc), he cannot be held guilty of the offence … if it is not established that the acts of support are done with an intention to further the activities of a terrorist organisation. Thus, intention to further activities of a terrorist organisation is an essential ingredient of the offences punishable…”

Therein lies a serious problem for counterterrorism officials, particularly in Kashmir, where the so-called “overground worker”, or an OGW, is vital to the terrorist web. Under this judgment, most of them would get away scot-free.


Two Types of OGW’s – Both are Dangerous

An OGW is, as the appellation suggests, the visible part of the organisation, linked, however, to the main terrorist organisation by invisible threads. An OGW may run messages, move funds, or provide food, all of which is easily deniable since an individual caught could protest that he had no idea (and, therefore, no intent) that he was assisting a terrorist. Another providing shelter would plead that they had been forced to do so. Many of these OGW’s are teenagers, or even children, who are paid to do a task that seems like easy money. Besides, it provides them with a certain ‘standing’ in the village in the case of places like Afghanistan, or even in some villages in Kashmir.

Even more dangerous in terms of its sheer spread and effectiveness is the second class of OGW’s who are vital for propaganda both offline and on social media, writing highly intellectual papers or books on the subject, or holding seminars such as the one recently held at Jawahar Lal Nehru University. The agenda of this particular webinar was to ‘draw and build upon the ethnography of gendered resistance to Indian occupation in Kashmir’, a really curious title that would clearly influence young minds. Others in the business write voraciously for prominent US newspapers, where the ‘ Kashmir issue’ is a useful prop in their careers.

Both levels of OGW’s are vital to the terrorist organisation. One gives it the physical ability to operate, the other gives it virtual respectability and opportunity.

In its nature, the first is opportunistic and controlled tightly by the local terrorist group. The second is loosely and quietly controlled, patronised and pushed by Pakistan, including blatantly by Information Minister Ch. Fawad Hussain and Pakistan’s embassies, through an intricate network of scholars and students. Some of the scholars or journalists involved may not even be aware that they are a cog in a terrorist machinery.


Establishing ‘Intent’ In a Conflict Zone

In both cases, establishing ‘intent’ is going to be difficult, given that they may – sometimes with absolute truth – aver that they had no idea that they were assisting a terrorist, or were forced to do so under threat, which actually happens in conflict areas like Afghanistan or Kashmir. The problem is that interpreting the law in a conflict zone has (of necessity) to be rather more different than that of a peaceful area like Kerala, where courts need to be more tolerant, especially towards impressionable youth.

In a conflict zone, where youth has been stolen before it was even born, by years of violence, it’s a different situation, which makes the interpretation of law a difficult task. Even worse is the difficultly of making a case at all, where witnesses are few and far between to testify to ‘intent’. In the final analysis, the courts have to decide where to draw the line in terms of weighing towards the safety of the majority or tilting towards a possibly violent individual.

The tragedy? The terrorist organisation wins in any case.

A youth arrested and charged is another ‘victim’ for whose freedom another dozen or so youth can be motivated. If he’s freed, his dark experience in detention can be used to the full in social media and for furthering his path to violence.

The reality is that a just society has no alternative but to give an individual the benefit of doubt. To do otherwise is to allow slow corrosion of the very basis of a democratic state.

It’s far better to deal with the situation by offering youth a possible path out of the mess by dominating the narrative with an overwhelming amount of reliable information, and most of all by proving that the state is not quite unjust as they think. And that means not reaching for that arrest warrant quite so quickly. It’s hard, but it might pay more in the long run towards the next elections.

(Dr Tara Kartha is a Distinguished Fellow at the Institute of Peace and Conflict Studies (IPCS). She tweets at @kartha_tara. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)

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Topics:  Jammu & Kashmir   Terrorism   UAPA 

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