HC admits Kerala Govt appeal

A division bench of the Kerala High Court on Friday admitted an appeal filed by the State Government challenging the May 22 order of a single-judge bench which said being a Maoist was no crime. Acting on the appeal, the division bench also stayed the single-judge bench’s directive that the Government should pay a compensation of `1,00,000 and `10,000 as litigation cost to a person whom the police had allegedly detained suspecting Maoist links.

The Government filed the appeal before the division bench the other day praying for removal of the observation by the single-judge bench of Justice A Muhammad Mushtaq that being a member of Maoist outfit was not an offence and that the police could not detain a person merely because of one’s political beliefs.

In its appeal, the Government argued that being a Maoist was indeed a crime and that the single-judge bench’s order that it was not, was illegal. It also argued that the order to pay `1,00,000 as compensation and `10,000 as litigation cost was unwarranted because there was no illegal detention as the person was taken for the “lawful” purpose of questioning.

Justice Mushtaq’s verdict had stunned the Kerala Home Department which had mounted a massive offensive against Maoists using a specialised anti-Maoist commando unit, Thunderbolt. The Government’s main argument was that the single-judge bench’s order was against the provisions of the Unlawful Activities (Prevention) Act (UAPA).

The single-judge bench’s order had come on a plea of Shyam Balakrishnan (33), an organic farmer based at Niravilpuzha in Wayanad, who said he was picked by the police of Vellamunda in the district on May 20, 2014 accusing him of Maoist links. He alleged torture in detention and said the police had unlawfully raided his home and seized his laptop and mobile phone.

Shyam, son of a former High Court judge, alleged that the police had committed gross human rights violation against him. The police explained to the court that they had merely questioned Shyam in the context of the increasing Maoist activities in Wayanad district and had released him within a short time.

Justice Mushtaq refused to accept the explanation of the police and said that no individual could be detained just because he was a member of a particular organisation. Pointing out that freedom of thought and liberty of conscience were a natural right, the judge said that freedom became unlawful only when it concerned the physical law of the State.

Challenging the order, the Government said in its appeal that nobody could be a member of the banned organisation, CPI(Maoist), and indulge in any Maoist activities or “partake or be a sympathiser by words either spoken or written or by signs or by visible representation or otherwise under the UAPA”. Therefore, the May 22 order was illegal, the appeal said.

The Government also argued that the police’s action of taking an individual for questioning could not be termed as illegal detention or custody. The single-judge bench had held that the term arrest did not refer only to formal arrest recorded by the police but also to deprivation of liberty when taken in for custody.