The Supreme Court said on Thursday that the NIA’s argument that the UAPA’s sanction for association with a banned organisation extends to the offence of membership in the organisation itself would result in a situation where a person is sentenced to life in prison for being a member, but not for doing anything to further the organization’s activities.
The NIA challenged the Kerala High Court judgement affirming the trial court’s order granting bail to law student Allan Shuhaib in a UAPA case filed over alleged Maoist ties. The bench of Justices Ajay Rastogi and A. S. Oka was hearing the SLP filed by the NIA challenging the Kerala High Court judgement affirming the trial court’s order granting bail to law student Allan Shuhaib in a UAPA case registered over alleged Maoist Also on the list was a petition filed by Allan Shuhaib’s co-accused Thwaha Fasal, a journalism student, appealing the same Kerala High Court verdict that overturned the Special NIA Court’s release.
Even though the charge of section 20 of the UAPA (Punishment for Being a Member of a Terrorist Gang or Organization; which is extendable to life imprisonment) is dropped from the chargesheet in respect of Shuhaib and Fasal, ASG S. V. Raju, for the NIA, argued on Wednesday that the court can discern it from the revelations in the chargesheet of the incriminating material recovered from them and their alleged ties.
Shuhaib’s lawyer, Senior Advocate R. Basant, told out yesterday that the NIA has not received sanction under Section 45 of the UAPA to prosecute the accused under Section 20. As a result, the Special Court is prohibited under Section 20 from taking cognizance of the offence.
Yesterday, the ASG argued, “When you look at the offences under 38, you’ll notice that one of them is under 20. ‘Offense pertaining to membership in a terrorist organisation’ is the title of section 38! A member is most likely to commit such an offence! So, if a sanction is provided under 38, an implied sanction is imposed under 20.”
Section 36 of the UAPA, according to Mr. Basant, allows a proscribed terrorist organisation to file an application to have its designation as such lifted. “If a prohibited organization’s activities end, 36 states that the organisation can file an application to repeal the prohibition on its own.” Who is responsible for this? This means that not all actions are prohibited, but only a subset of them are. Are those who file for derecognition also professing to aid the organisation if their argument is accepted? Take a look at the seemingly contradictory reasoning! Isn’t that also going to drag 38? He decided that not every activity would appeal to people aged 38 or 39.
The Bench deferred orders and instructed lawyers to provide brief notes by Monday.