Akhil Gogoi: A case of abuse of terrorist law

Once again it is proved that the government is abusing its power to kill protests and suppress dissent. Exercise of freedom of expression to oppose the unconstitutional amendments to the Citizenship Act, popularly called CAA led to firing and killing of five persons in Assam.

This was followed by the false cases against the activists under draconian laws – Sedition under 124A of British Indian Penal Code and UAPA –the anti-terrorist law. An activist who was charged with terrorism and sedition etc., Akhil Gogoi contested election from jail, and registered a handsome victory, as his mother campaigned for him as an Independent candidate.

While the police of Assam implicated him in false charges, the National Investigation Agency investigated it, and both received a shameful slap from the NIA court in Guwahati for absolutely lacking in prima facie evidence and discharged all the four accused including Akhil Gogoi as innocents, on July 1.

The National Investigation Agency investigated the cases under the Indian Penal Code and the Unlawful Activities (Prevention) Amendment Act (UAPA) for alleged criminal conspiracy, sedition, promoting enmity between groups on grounds such as religion, race and language, assertions against national integrity, and support to a "terrorist organisation".

Almost all anti-CAA protestors are terrorists according to the Government of India and Governments of the states ruled by BJP or NDA coalition partner. Akhil Gogoi was in jail since December 2019, without bail.

The fact that substantial number of cases against the protestors are failing shows prolific abuse. Some of the cases reach Constitutional courts where the finer judicial interpretations decide the contours of 'criminality' or otherwise. Yet, the police in this state or that state go on registering false cases and make the innocent citizen to suffer the trauma of appeals up to Supreme Court.

Akhil is lucky enough to get discharged. The process has already become punishment. Akhil Gogoi lost his precious freedom for more than 18 months without any remedy. The principle that no right should go without a remedy is breached once again.

Specific directions from the Supreme Court that such charges do not constitute even prima facie case are ignored totally by the police and their political bosses. The judicial norms are supposed to guide them in their day today investigations but unfortunately they do not percolate into rules of law to prevent the abuse of law by the Government and the officers who follow the instructions instead of adhering to the law.

The charges which may not even fit into the strict definition of IPC will make the innocents to suffer jail, until the courts discharge them. This is what the political Government to use as a threat to criticism.

Charge against Akhil and his three associate activists who opposed CAA is that they are terrorists. The Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602, para 1542 explained: "Terrorism means use of violence when its most important result is not merely the physical and mental damage to the victim but the prolonged physiological (sic psychological) effect it produces or has the potentiality of producing on the society as a whole. Terrorism is generally an attempt to acquire or maintain power or controlled by intimidation and causing fear and helplessness in the minds of people at large or any section thereof and it is a totally abnormal phenomenon. Terrorism is distinguishable from other forms of violence as in the former, the deliberate and systematic use of coercive intimidation is used."

Section 39 of Unlawful Activities (Prevention) Act defined the Offence relating to support given to a terrorist organisation. A person, (a) who, with intention to further the activity of a terrorist organisation, (i) invites support for the terrorist organization; and (ii) the support is not or is not restricted to provide money or other property within the meaning of section 40; or (b) who, with intention …arranges, manages or assists in arranging or managing a meeting which he knows is— (i) to support the terrorist organization; or (ii) to further the activity of the terrorist organization; or (iii) to bead dressed by a person who associates or professes to be associated with the terrorist organisation; or (c) who, with intention to further the activity of a terrorist organisation, addresses a meeting for the purpose of encouraging support for the terrorist organisation or to further its activity.

(2) A person, who commits the offence relating to support given to a terrorist organisation under sub-section (1) shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both.

Police alleged that Akhil Gogoi had secretly merged his organisation Krishak Mukti Sangram Samiti – KMSS with Revolutionary Communist Centre and the latter was later merged with the banned CPI (Maoist) and conspired with three other accused to incite hatred and disaffection towards the Government established by law, using the passage of the Citizenship Amendment Bill (CAB) as a pretext and that they also promoted enmity amongst different groups of people.

While it was alleged that he provoked violence through his speeches the defence presented evidence of speeches that show he in fact appealed not to resort to violence. The books which were seized by the NIA were not banned books. Akhil also suggested not indulging any activities of Maoist in Assam. Defence council pointed out that the CPI (Maoist) has been declared a banned terrorist organization only from 22.06.2009.

An overt act is essential for an offence u/s- 15 UA (P) Act and that the same also has to be done so with the alleged intentions. One cannot say that that protest, bandh etc. would not be taken as compromising the economic security of India.

The Court agreed that the ingredients of Sections 18/39 of UA (P) Act do not exist; that, three accused being associates of Akhil is not an offence as he was not a declared terrorist; that no independent action is attributed to three with regard to conspiracy. The prosecution witnesses have not made any reference to these three accused persons. The witness No 15, was not asked about any connection with Maoists. The statements of witnesses have no adverse materials against accused.

The speeches of Akhil including one speech made at Jorhat did not show any provocation. Some books were seized, but keeping such books is not an offence. Without active violence, people protesting should not invite criminal liability. The activities cannot be said to be done with intension to threaten economic security of India.

It is the duty of every Judge at district or metropolitan level to examine the strength of the charges based on the evidences produced by the investigators. In Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC 368 (para 21), the Supreme Court, under sections 227 and 228 of the Criminal Procedure Code, the Judge while considering the question of framing the charges has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. The court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence.

For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

In P. Vijayan v. State of Kerala, (2010) 2 SCC 398 (para 25), it has been held that - Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he finds that "there is not sufficient ground" for proceeding against the accused.

SC held recently in M.E. Shivalingamurthy v. CBI, (2020) 2 SCC 768 (paras 17, 18, 29, 31), if two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused and that the trial Judge is not a mere post office to frame the charge at the instance of the prosecution.

After considering all material, documents, witness statements, speech records etc, the judge said there is no material whatsoever to frame even a prima facie charge. Judge repeated this statement at each allegation after analysis of each kind of material. It is criminal injustice to four young men to be incarcerated without any reason, suspicion etc.

(The author is Professor &

Dean of School of Law, Mahindra

University, Hyderabad, Formerly

Central Information Commissioner)