After the unilateral Maoist hunt in Attappadi, the arrest and detention under the infamous UAPA (Unlawful Activities Prevention Act) of two students, Alan Shuhaib and Thaha Faisal by the state police, has become more complicated. As per the amendment in the UAPA passed by the Lok Sabha in July 2019, under Section 7 (B) National Investigation Agency (NIA) controlled by Amit Shah, can take over any UAPA case without taking permission from state's police department. Invoking that power, NIA has taken over this case.
Right at the time of amendment, criticisms had been raised that the said amendment was a violation of the rights of state in the realm of law and order in line with the federalist principles envisaged in the constitution. That distortion is becoming a reality in a most bizarre form now. These two young men are now being hurled into the pitiable state comparable to that of another youth from Parappanangadi, Zakariya who was arrested from Kerala on charges related to the Bengaluru blasts and has been suffering detention under trial for the last 10 years.
The leading party of Kerala's ruling coalition, CPM has through a statement by its state secretariat, expressed disapproval of the Centre referring the case to NIA without consulting the state home ministry. The CPM stand is that the act of referring the case, charged by Kerala Police in connection with Maoist activities in Kozhikode, is objectionable and the central government's act without even consulting the state government on a matter related to the state subject of law and order, will erode the federal structure of the country. But the state's LDF government cannot wash its hands off the guilt of ruthlessly slapping UAPA on the youths in the name of possessing pamphlets and banned books, although the party was convinced that the UAPA was a black law, and it was made further draconian by the amendment brought in by Amit Shah. Despite wide cricism that the arrests were unlawful and unfair, the police stuck to its guns and the chief minister, who is in charge of home portfolio, has so far been spinning justifications for the arrest by reiterating over and over in the assembly and outside, that the arrested were Maoists. For the same reason, as also because the case is related to a banned organisation with national roots – which the state government has accepted too - the CPM and the LDF government's averments will fall flat before the Centre's justification that it would come under the jurisdiction of NIA.
The CPM through its statement is actually paying the price for the double standards adopted by the Left government in the case. The guilt of their arrest cannot be easily washed off, as underlined by the firy words to that effect of Alan's mother before the media. The UAPA amendment, like many other legislations piloted by Amit Shah, is also going to be reviewed by the Supreme Court for violating the priniples of the Constitution. Federalism is a principle which the Supreme Court through a 13-member constitutional bench in the Kesavananda Bharati case determined as one of the fundamental principles, and counted as the soul of the constitution, which the legislative houses cannot tamper with, however strong the majority. If the stance of the CPM state secretariat is sincere, what it should do is to file a petition in the Supreme Court arguing that the takeover of the Alan-Thaha case by the NIA constituted a negation of federalism. In the prevailing circumstances, with student agitations brimming all over, that is sure to trigger constitutional debates and political discussions.
As of now - as per the amended law approved by the parliament - NIA is a mechanism entirely subservient to the home ministry. And through the UAPA amendment, it has got overriding powers too. In this situation, imposing UAPA provisions on flimsy grounds of possessing pamphlets, for maintaining friendship with Maoists and for challenging the excesses of the government, will not be read as purely innocent. In the State of Kerala vs Raneef case, the Supreme Court has made it clear that an individual will not become guilty for the mere reason that he is a member of an organisation as long as he does not indulge in any unlawful act. And what the apex court had observed while granting bail to Binayak Sen, was that possessing Maoist literature or being a sympathiser of Maoism alone would not make any one a culprit. It is unfortuante that the Left government needs to be reminded that even if Alan and Thaha are proved to be Maoists, in the absence of evidence for any unlawful activities, they are innocent. The largest section held in jail in the country under UAPA provisions consists of youth. And now here, two students are being pushed by the Left government has the obligation to correct this wrong. And the civic society also should wake up and act vigilantly in the cause of justice for the two youths.