Kerala High Court last month freed Shyam Balakrishnan, who had been picked up in 2014 on suspicion of being a Maoist, saying “being a Maoist is not a crime”. The court said that although the political ideology of the Maoists ran counter to India’s constitutional polity, a person could be prosecuted only if it could be proved that he had acted unlawfully as a result of his adherence to this ideology.
The HC said it was “a basic human right for people to have aspirations”, and reproached the state for “disguised aberration of law in the cloth of uniform” where “protectors become aggressors.”
So, is it legal to be a Maoist as long as no laws are broken?
This is not the first time that the question of adherence to the ideology of a banned outfit such as the Communist Party of India (Maoist) has come before a court of law. The Supreme Court and High Courts have earlier made a distinction between having a particular ideology, and acting in furtherance of it.
The prosecution has traditionally sought justification in Section 124A of the IPC, and Section 20 of the Unlawful Activities (Prevention) Act, besides clauses of the now-repealed TADA and POTA. Sec 124A makes words, either spoken or written, signs, and pictures punishable if they attempt to bring hatred or contempt against the government. Sec 20 says any person who is a member of a terrorist gang or organisation can be prosecuted. Both charges can fetch a life term.
* In 1962, the Supreme Court ruled that 124A was constitutional if a balance could be struck between a citizen’s fundamental right to freedom of speech and expression, and the interest of public order. The SC held that disloyalty to government, or a criticism of its measures or acts of public officials, could not be penalised. It upheld the section as valid, for it would penalise only attempts to disrupt public order and disturb law and order.
* In 2011, the Kerala government challenged the bail for Dr Raneef, whom the police had accused of being a member of the alleged terrorist organization Popular Front of India, and booked under UAPA. Declining to interfere with the High Court’s order, the SC borrowed from a US Supreme Court verdict to reject the theory of “guilt by association”. It said that a law that applied to membership without a specific intent to further the illegal aims of an organisation, infringed unnecessarily on protected freedoms.
* Also in 2011, the SC set aside the conviction of Arup Bhuyan and Indra Das, who were held guilty under TADA for being members of ULFA — saying that mere membership of a banned organisation would not incriminate a person unless he resorted to violence or incited people to violence, or did an act intended to create disorder or disturbance of public peace. The Centre has challenged the order, which remains pending.
* That same year, Gujarat High Court released on bail five members of the Janashakti organisation, which worked with the CPI (Maoist). Surat police had found documents such as agenda of a meeting and literature on revolution and lessons, including one on the guerrilla warfare of the CPI (Maoist). The court held mere possession of such literature without actual execution of the ideas in them would not amount to an offence.
* While granting bail to Binayak Sen in April 2011, the SC said that the paediatrician and human rights activist may be a Maoist sympathiser and possessed come material on that ideology, but that could not automatically make him guilty of sedition. If the state could not prove that Sen had propagated the ideology or acted in collusion with Naxalites, even meeting a hardcore Naxalite such as Narayan Sanyal in jail was not enough to prosecute him, the court said. Could a person be called a Gandhian merely for possessing a biography of Gandhi, the SC asked.
* In April 2012, Bombay High Court gave bail to alleged CPI (Maoist) members Jyoti Babasaheb Chorge and Sushma Hemant Ramteke, from whom some publicity material of the outfit had allegedly been recovered. The HC held that these individuals could not be said to be CPI (Maoist) members — even less as a reason to attach penal liability — even if they were impressed by the philosophy and ideology of the group.
Another question pending before the SC is on whether Maoists can be considered “political prisoners”. In 2013, the court stayed a Calcutta HC order that had declared the CPI (Marxist-Leninist) a “political movement”, and directed the West Bengal government to treat arrested members of the group under the WB Correctional Services Act, 1992. Nudged by the Centre, the state amended the Act in 2013 to keep Maoists out of its ambit.
Last year, the SC granted permanent bail to Chhattisgarh schoolteacher Soni Sori, who had been arrested in October 2011 for allegedly helping Maoists to extort ‘protection money’ from steel giant Essar.
The test consistently applied by the higher judiciary is of the one laid down under Article 19 of the Constitution, which protects the rights to freedom of speech and expression, to assemble peaceably and without arms, and to form associations or unions. Article 19(2) empowers Parliament to impose, by law, reasonable restrictions on these rights in the interests of sovereignty and integrity of India. Provisions such as Sec 124A of the IPC and Sec 20 of the UAP Act have been construed as reasonable restrictions.
The higher judiciary has held that the interpretation of these stern provisions must be in consonance with constitutional values and principles, and the concept of “membership” ought to be read in the light of freedoms and rights. Hence, “membership” of a banned outfit has to be active — not passive — to attract penal provisions. The verdict of the Kerala High Court sits perfectly with this understanding.