Court Should Guard Itself Against Confirmation Bias Based On Ideological Biases And False Narratives: Kerala HC Grants Bail To PFI Workers In UAPA Case For RSS Leader's Murder

The Kerala High Court has granted bail to 17 persons, including the accused in the murder of RSS leader Srinivasan in Palakkad in April, 2022. The 17 accused also include the accused in the larger conspiracy case registered by the NIA against workers and leaders of the Popular Front of India (PFI) just before the said organisation was banned in September, 2022.

Among the accused who have been granted bail is an Advocate who was practising in the High Court, and is accused of giving training to the murder squad of the PFI.

The Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Syam Kumar VM which heard appeals against the orders of the Special Court refusing bail to the accused also upheld the order refusing bail to 9 accused in the said cases.

Senior Advocates Aditya Sondhi and S. Sreekumar appeared for the accused while Senior Advocate and Special Public Prosecutor Sasthamangalam S. Ajithkumar along with SCGC TC Krishna appeared for the NIA.

The Court held that while examining evidence against the accused under Section 43D of the UAPA, the Court has also to guard itself against any confirmation bias that might creep in based on "ideological biases and false narratives prevalent in society".

"Over and above the principles gleaned from the precedents referred above, we feel that in cases such as the present, where the allegation against the accused is that they were complicit in terrorism related offences, a court examining the evidence against the accused under Section 43D of the UA (P) Act has also to guard itself against any confirmation bias that might creep in based on ideological biases and false narratives prevalent in society. Such an exercise would be required, not only in keeping with the requirement of safeguarding the personal liberty of the accused under Article 21, but also in the interests of upholding the fundamental right of an accused against arbitrariness and/or discrimination as envisaged under Article 14 of the Constitution", the Division Bench held.

The Court held that only in respect of those accused, against whom the material relied upon by the prosecution, when taken as a whole, crosses the threshold of ‘general allegations coupled with overt acts that would clearly suggest the complicity of the accused in the offence with which he is charged’, can it be said that there is reasonable grounds for believing that the accusation against that person is prima facie true.

"In other words, there has to be some corroborative material, other than mere statements of witnesses, to show that there were overt acts or acts of active participation by the appellants/accused, such as authorship of offensive documents and/or speeches, in order to deny them bail", the Court added.

With respect to the now infamous document “India 2047 – Towards Rule of Islam in India” allegedly created by the PFI, the High Court said, "It is in the nature of a vision statement that deals with the present state of the Muslim community in India, projects a vision for the year 2047 that sees the establishment of an Islamic government in India, and gives a narration of the means, mostly covert and violent, by which its author, apparently a member/supporter of the PFI, seeks to attain his or the organisation’s objective. There is no authorship attributed to anyone in the document. However, the prosecution appears to proceed on the assumption that all of the accused herein have subscribed to the views contained therein".

While giving reasons for refusing bail to the nine accused, the Court held, "Save for the above mentioned nine appellants/accused, there exists no reasonable ground to believe that the accusations against any of the other appellants, are prima facie true" and granted bail to seventeen accused.

Cause Title: Asharaf @ Asharaf Moulavi & Ors. v. Union of India & Anr. [Neutral Citation:2024:KER:45108]

Appearance:

Appellants: Senior Advocates Dr. Aditya Sondhi and S. Sreekumar, Advocates S Rajiv, PA Mohammed Aslam, EA Haris, PP Haris

Respondents: Special Public Prosecutor

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