What is the new jurisprudence for political prisoners?

Politics Nov 11, 2021

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WHAT IS JURISPRUDENCE FOR POLITICAL PRISONERS?

People imprisoned for their political activity are called political prisoners.

Jurisprudence is like the grammar for a law. It justifies the reasoning behind the written law for political prisoners.

THE CASE:

On 28 October 2021, a decision was taken by the Supreme Court in granting bail to Thwaha Fasal and Alan Shuhaib under the UAPA for associating with Maoists. Section 43D(5) denies bail for a case under UAPA violating Articles 14 and 21(Equality and Right to Liberty) of the Indian Constitution.

The Supreme Court has reworked the provisions of the Unlawful Activities Prevention Act(UAPA)by granting bail to the accused under the context of equality and the right to liberty of an individual. Preventing the misuse of acts like UAPA makes a strong judiciary.

Of the three accused from Kerala, one of them absconded. In November 2019, the police registered a case against Alan Shuhaib, a third-year law student and Thwaha Fasal, a journalism student.

The National Investigation Agency(NIA)found radical literature material, caste issues book, banned Maoist organization pamphlets serving as evidence that the accused had Maoist links.

Alan Suhaib was charged under UAPA’s Section 38 and 39, IPC(Indian Penal Code)’s 120 B. Section 38 and 39 are against membership offence and support to terrorist organizations.IPC’s 120B is a criminal conspiracy provision(2 or more persons agreeing to do an unlawful act).

The co-accused Fasal was charged under UAPA’s Section 13 for involvement in unlawful activities. Both the accused had spent 10 months in prison.

In September 2020, the accused were granted bail but the Kerala High Court decided to withdraw Fasal’s bail but not Alan Shuhaib’s bail.

The Supreme Court pointed out that section 38 and 39 applies only intending to involve in terrorist activities and not mere association with the terrorist organization.

After an enquiry, the Supreme Court upheld the trial judge’s decision and questioned the High Court regarding the recording of prima facie(first review of the pre-trial hearing with evidence to support the case) charges for Fasal. The accused were then set free.

The Supreme Court was liberal and granted bail to both the accused. It restored the order of the Special Court and set aside the decision of cancelling the bail by the Kerala High Court.

The Court reviewing materials stated by the NIA on the investigation said that the fascination of ideologies or possession of materials is not a factor for an offence.

The issues with UAPA:

  • The UAPA act does not permit a thorough examination of case facts
  • It only sees the guilt and not the innocence of the accused, as they are students.
  • Without a charge sheet, a person can be kept in prison for 180 days under the 43D(2) code of criminal procedure.

IN CONCLUSION…

Sometimes the laws are challenging for the courts while dealing with tough provisions. The provisions should be applied without violating the basic rights as said by the lawmakers.

The harshness of the law must not be imposed and judgements need to be reviewed before denying the bail. This case also serves as an example to release other political prisoners who faced similar issues in bail or the issues due to an act, or both.

This article has been written by Renitha for The Paradigm.

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