In a noteworthy legal development, a division bench of the Madras High Court, consisting of Justices SS Sundar and Sunder Mohan, has raised a significant query challenging the categorisation of conspiring or plotting to kill Hindu religious leaders as a terrorist act. The remark came during the hearing of a bail petition filed by Arif Musthaheen, who has been in custody for the past 17 months after being arrested under the Unlawful Activities (Prevention) Act (UAPA) on charges of conspiring to kill members of Hindu organizations.
The bench, while considering Musthaheen’s bail application, observed that whether a conspiracy to kill RSS, BJP, or Hindu religious leaders could be labelled a ‘terrorist act’ is debatable. It stated that for an act to fall under Section 15 of the UAPA, it must have been committed with the intent to threaten or likely to threaten the nation’s unity, integrity, security, economic security, or sovereignty. Section 15 deals with a ‘terrorist act’ and can be invoked if an action is committed with the intent to strike terror or is likely to strike terror among the people.
The judges questioned whether the killing of Hindu religious leaders alone could constitute a terrorist act and noted that the prosecution had not demonstrated how a conspiracy to attack certain religious leaders would amount to a terror act. They emphasised that, considering the broad probabilities of the case from the materials collected by the prosecution, it cannot be conclusively determined that there was a conspiracy to commit a terrorist act.
During the hearing, Additional Public Prosecutor A Gokulakrishnan presented translations of certain Arabic text messages shared by Musthaheen with the second accused in the case. Musthaheen expressed a desire to become a member of the banned ISIS and allegedly conspired with the second accused, suspected to be an ISIS member, to plan attacks on Hindu religious leaders associated with the BJP and the RSS.
The bench, however, did not concur with the prosecution’s arguments, stating that the evidence did not show anywhere that Musthaheen joined ISIS or that the second accused was a member of the terrorist organisation. The judges highlighted that proximity to an individual is different from associating oneself with or professing to be associated with a terrorist association to further its activities.
In a significant decision, the bench granted bail to Arif Musthaheen with the condition to stay in Erode and appear before the trial court daily at 10:30 am until further orders. Musthaheen was also directed to surrender his passport.
In a related development, the same division bench of Madras High Court comprising justices SS Sundar and Sunder Mohan allowed an appeal filed by Mohammed Rifas alias Mohamed Rigbas and set aside a bail cancellation order passed by a Special Court for NIA cases, Section 43D(7) of the UAPA does not permit the grant of bail to a foreigner. The bench said that Sec43D(7) states that no bail should be granted to a person accused of an offence punishable under the UAPA if he was not an Indian citizen and had entered the country illegally, barring exceptional circumstances and for reasons to be recorded in writing.
The judges said, “it is not as if that there is no discretion given to the court and it can grant a bail even to a person who is not a Indian citizen under extraordinary circumstances. Rifias was arrested by Keezhakarai police on April 2016 for offences under UAPA , IPC and Arms act,1959. He was given bail in July 2018. NIA which took the probe in 2019 filed charge sheet in 2021 and in 2022. NIA sought cancellation of the bail given to him citing another FIR registered against Rifias by the same police station in November 2019 under the Foreigners act, the passport act and citizenship act. It claimed he had suppressed his nationality while getting bail. On that basis, the trail court cancelled the bail in last year July. The HC said NIA should have approached the HC for cancellation of bail.
Meanwhile, BJP MLA Vanathi Srinivasan has urged the government to book a remand prisoner at the Coimbatore Central Prison for drawing the ISIS flag and threatening jail authorities and transfer the case to NIA. She said “ Coimbatore has been targeted by extremists for the past 25 years. ISIS sympathiser Asif Mustaheen who has been spending his days in prison, told the jail authorities that he would work for the ISIS after getting out on bail and threatened the officials”. Police arrested him on last Thursday for keeping ISIS flags which were drawn on a paper, in his cell and intimidating a jailor. He was produced before a court and was remanded in judicial custody and was back in prison.
A section of advocates are of the opinion such opinion from the court will give fillip the terrorists and plotters. They say “ the judiciary has made a wrong precedent by releasing killers of the former PM Rajiv Gandhi. One of the killer Ravichandran on technical grounds. They were tried , convicted, sentenced death and commuted to life and finally release. No other nation, we can see killers of PM or President could be getting such treatment. TN CM M K Stalin hugged Ravichandran and treated him with sweets, besides presenting a shawl ( as if he were a freedom fighter). They would be having been hanged within months of killing of a VVIP. The courts never understand the risk and strenuous efforts made by the police or CBI, NIA, ED in apprehending the criminals, terrorists. They said that people started talking openly how petitions by moved politicians are getting listed and heard at jet set speed? Only handful top legal brains are appearing for them. Why such special treatment for them when lakhs of cases were pending various courts including HCs and SC. ‘Saying bail is the rule, jail is the exception’, many hard core criminals, terrorists, economic offenders are given bail. Lalu Prasad, P Chidambaram, Al Umma founder and terrorist SA Basha( Coimbatore serial blasts convict) and others who were given bail on medical grants, are actively participating political activities. Though Lalu was convicted several cases, most of times he was in hospital. Once the bail was given he is doing politics. Can’t the court that gave them bail cancel it on suo moto. Otherwise it will be a mockery of justice. Such treatment gives wrong singles to politicians to indulge in corrupt activities and think of facing legal cases with the help of top notch lawyers. Like other professions, judiciary should have accountability”.
The Madras High Court’s remarks have sparked discussions on the interpretation of terrorism laws and the criteria for labeling acts as terrorist in the context of conspiracies against religious leaders. The legal community awaits further developments as this case raises important questions about the definition of terrorism in similar circumstances.
