Can’t punish just for possessing jihadi literature, say Delhi court

The court’s observation comes while framing charges against nine persons being probed by the National Investigation Agency (NIA) for allegedly propagating the ideology of Islamic State (ISIS) on social media.

Punishing someone just for possessing Jihadi literature will run counter to freedom granted under the Constitution, a Delhi court has held.

Can’t punish just for possessing jihadi literature, say Delhi high court

“….to hold that mere possession of Jihadi literature having a particular religious philosophy would amount to an offence, though such literature is not expressly or specifically banned under any provision of law, is not fathomable in law unless and until there is material about execution of such philosophy so as to do terrorist acts. Such a proposition runs counter to the freedoms and rights guaranteed by Article 19 of the Constitution…,” the court said in an order of October 31.

The court’s observation comes while framing charges against nine persons being probed by the National Investigation Agency (NIA) for allegedly propagating the ideology of Islamic State (ISIS) on social media.

Principal district and sessions judge Dharmesh Sharma, in his order, said although there was “prima facie” material to substantiate that the accused had a common agenda and attempted to garner support of like- minded people by inciting and radicalising vulnerable Muslim youths to join ISIS, “there is no material that they committed any terrorist activity, acts of violence or conspired to wage war against the Indian government”.

The court said that there is no material collected so as to demonstrate that any of the accused in question made any attempt or in fact procured any weapons, arms or ammunition on receiving such funds.

“…If the prosecution story is believed, some of the accused persons were highly motivated to undertake Hijra i.e., mass exodus to ISIS controlled territories or for that matter to the State of Jammu & Kashmir, which desire could never materialize, and that by itself is no offence under section 18 of the UA(P) Act,” the court said in a 65-page order, referring to the anti-terror law Unlawful Activities (Prevention) Act or UAPA.

The court said that even though the accused, hailing from Kerala, Karnataka and Jammu & Kashmir, were “impressed” by the Jihadi literature, its philosophy and ideology, still they cannot be held as the members of such banned organisation.

It said that there was no evidence if any of the accused had been conferred any rank, position or designation or for that matter any specific task by the ISIS to carry out a terrorist act, adding that the organisation has not acknowledged the accused as “foot soldiers” or “members of the sleeper cells”.

While the prosecution had filed the charge sheet under sections 17, 18, 18B, 20, 38, 39 and 40 of the UAPA and 120 B (criminal conspiracy), the court dropped the majority of charges and put the accused on trial for assisting in unlawful activities of any banned organisation either by words or other form and relevant sections of the IPC.

The court framed charges against Mushab Anwar, Rhees Rasheed, Mundadiguttu Sadanananda Marla Deepthi, Mohd. Waqar Lone, Mizha Siddeeque, Shifa Haris, Obaid Hamid Matta and Ammar Abdul under Sections 120B of the IPC read with Section 2 (o), 13 (assisting in unlawful activities either by words or other form), 38 and 39 of the UAPA.

The judge said that there is overwhelming material to establish a strong nexus among the accused persons with some known or unknown operatives of the ISIS on the web world indulging into various violent activities and crimes.

“The aforesaid accused persons have not only been sympathisers of the ISIS ideology or its violent philosophy against non-believers but also pursuant to well-planned conspiracy actively following a well-orchestrated and painstaking efforts not only to support the terrorist activities of the banned organisation but also professing themselves to be mujahidin or crusaders or lone wolves intending to undertake hijra and bring about the rule of the caliphate in the State of Jammu &Kashmir,” the court said.

It said that even a casual reading of the messages, chatting, dialogues, comments and the whole tone and tenor of the entire material extracted from the digital devices of the accused would show that there was deliberate attempt to cause disaffection against the country.

Saying that it was difficult to consider the accused as “passive members of the banned organization”, the court noted that the accused had been operating various social media platforms “as a toolkit” for spreading the ISIS ideology and thereby alluring, impressing and radicalising like­-minded fellow persons to indulge in unlawful activities.

The court, however, discharged a 26-year-old Kashmiri youth, Muzamil Hassan Bhat, of all charges, saying there is no evidence that he ever professed himself to be a member of ISIS or that he did anything so as to further the activities of the banned organisation.