Tukde Tukde Jurisprudence... !!!???

In a judgment delivered on 04/10/2018 in Yasmeen Mohammad Zahid @ Yasmeen v/s. Union of India (Rep. by NIA), the Division Bench of Kerala High Court comprising of Justice A. M. Shaffique & Justice P. Somarajan shockingly observed that “Supporting an ideology of a banned organization of course is different from waging a war or attempting to wage a war or abetting to wage a war”. It is as pervert as holding that chanting “bharat tere tukde honge, insha alla, insha alla” is not sedition but is a freedom of expression to register dissent against the Government.

The Kerala HC held that supporting the ideology of Islamic State of Iraq and Syria (ISIS) will not amount to waging war against Government of an Asiatic power in alliance with India, the High Court of Kerala set aside the conviction of a woman under Section 125 of the IPC.

Earlier, the NIA Special Court, Ernakulam found that Yasmeen had supported ISIS and had raised funds for it, and had attempted to wage war against an Asiatic power and convicted her under Sections 120B, 125 IPC and Sections 38, 39 and 40 of UAPA, 1967.

The judgment is a classic example of narrow interpretations of the statute by remaining totally oblivious of the changing geo-political factors governing the cross-border and cross-nations terror. The judgment also has inherent contradictions.

While discharging the Convict from charges u/s. 25 of IPC, the High Court observed in para 22 and 23 as follows:

22. In order to prove the offence under Section 125 of the I.P.C., prosecution ought to prove that the accused wages war against the Government of any Asiatic Power that are in alliance with the Government of India or even attempts to wage such war, or abets the waging of such war. Here the contention of the prosecution and even the charge is that A2 had a criminal conspiracy with Abdul Rashid and other absconding A3 to A6 with the intention of furthering the activities with ISIS, waging war against Asiatic nations that are in alliance with the Government of India. Though there is evidence to prove that she had attended classes of Jihad propagating IS ideology by A1, there is absolutely nothing to indicate that she had taken any steps to wage a war or attempted to or abetted waging of such war against any Asiatic Power in alliance with or at peace with Government of India. So conviction of the appellant under Section 125 cannot be sustained without any such material.

23. From the available evidence, what we could deduce is that she had maintained a relationship with A1 and supported his ideology. Supporting an ideology of a banned organization of course is different from waging a war or attempting to wage a war or abetting to wage a war. There is no evidence to prove that she was involved in any such activity. [Emphasis supplied].

The High Court admits that Yasmeen had attended classes propagating IS ideology. The issue is what is ISIS ideology? – to kill non-muslims or rather cleanses the world by killing infidels and to cause overall destruction by waging the war against respective Governments. Where is this in full force? In Afghanistan. In Syria. In Iraq. Afghanistan is a friendly country. In fact both Iraq and Syria are also friendly countries. India is involved in rebuilding Afghanistan. After Iran, Iraq is the second largest exporter of oil to India. So any act of abetting violence in those countries will squarely fall within the ambit of section 125 of the IPC. However, the High Court has missed this point and has chained itself to an extremely myopic interpretation of the scope of section 125 of IPC.

Now comes another shocker and contradiction while holding against application of section 125 of IPC.

In the very next para 24, the Kerala High Court observes:

24. Section 38(1) of the UAP Act clearly indicates that any person who associate himself or professes to be associated, with any terrorist organization with intention to further its activities, commits an offence relating to membership of a terrorist organization. There is no doubt about the fact that ISIS is a terrorist organization declared to be so as per item 38 of the 1^st schedule. There is evidence to prove that the 2nd accused was associated with A1 who propagated ISIS ideology and had gone even to the extent of joining him. Her attempt to proceed to Afghanistan was with a clear intention to meet 1st accused and to involve in IS related activities. Therefore she is punishable under section 38(2). [Emphasis supplied]

The observations contained in para 24 of the Judgment actually underlines why Yasmeen should be prosecuted u/s. 125 of the IPC. That Yasmeen had gone to the extent of joining Abdul Rashid who is absconding and staying in Afghanistan or Syria underlines the degree of her involvement in the terror activities. The judgment itself describes her involvement meticulously. Yet holds other way round.

In my considered opinion, Kerala High Court has dealt with the issue with kid gloves.

NIA should file appeal before the Supreme Court. But going by the current dispensation and the way some SC Judges have conducted themselves in the public in recent past, it seems the terrorists and naxalites will be dealt with kid gloves. Bhima-Koregaon judgment is a pointer towards such a soft approach.

I am just wondering whether this is “Tukde Tukde” jurisprudence...!!!