He is a card-carrying communist” was a description which became popular in the bad old days of the Cold War and McCarthyism. ‘Lefties’ who were not card-carrying were branded “fellow travellers”. Whether they carried cards or not, Communist parties had formal membership structures (the US Communist Party now has digital membership) and so, membership is still tangible.
The main problem with last week’s disturbing ‘guilt by association’ judgment of the Supreme Court in Arup Bhuyan (II) is that the law with which it was dealing namely the Unlawful Activities (Prevention) Act, 1967 (“UAPA”) does not define who a ‘member’ of an ‘Unlawful Association’ or ‘Terrorist Organisation’ is. This is despite the fact that ‘Unlawful Association’ and ‘Terrorist Organisation’ are defined under Section 2(p) and 2(m) respectively. The law obviously proceeds on the assumption that the organisations that it covers would not necessarily have formal memberships. The active participation in the affairs of the association by persons who may not be members are brought within the net by fastening criminal liability on those who take part in meetings of the association (Section 10(a)(ii)), is involved in giving or receiving contributions to the association (Section 10(a)(iii)) and otherwise in any way assists the operation of the association (Section 10(a)(iv)). But Section 10(a)(i) fastens liability on a person who is or continues to be a member of such association without defining who a ‘member’ is. The judgment criminalizes mere ‘membership’ after an association is declared unlawful. A large number of innocent persons now risk getting roped in under the draconian provisions of the law on the basis of their membership being inferred from recovery of literature or from forced confessions.
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The court reviewed and overruled three of its own earlier judgments (of 2011) rendered by a bench of Justices Markandey Katju and Justice Gyan Sudha Misra (hereinafter, the “Katju bench”). That bench had ruled out ‘guilt by association’ both in the case of now repealed Terrorist and Disruptive Activities (Prevention) Act 1987 (Arup Bhuyan and Indra Das) and the UAPA (Raneef). It is only by construing those provisions to mean that “there must be clear proof that the defendant specifically intends to accomplish the aims of the organization by resort to violence”, that the court found the laws to be constitutional. No doubt, the constitutional validity of the provisions penalising ‘members’ was not challenged. The court, however, read down the provisions in keeping with the well-accepted canon that a statute must be interpreted in a manner which will save it from being unconstitutional.
In reviewing those judgments, the court found fault with the Katju bench for interpreting the provisions of a central law without issuing notice to the central government. Fair enough, considering the nature of the laws being dealt with, though one cannot visualise every section of the Indian Penal Code in criminal cases being interpreted only with the assistance of the central government merely because the Penal Code is a central law. But the reasons which have weighed with the court in now overturning its previous judgments are unsound, and have the effect of jeopardising the liberty of many innocent people.
The review bench finds fault with the Katju bench for its extensive reliance on judgments of the Supreme Court of the United States, pointing out that unlike the US constitution, our Constitution expressly authorises reasonable restrictions on stated grounds on the various fundamental rights. But then, the Katju bench had also relied on a five-judge bench of our own Supreme Court (Kedarnath Singh, 1962) reading down the sedition law (Section 124-A, Indian Penal Code) to say in the context of free speech under Article 19(1)(a), that an offence would be made out only if there was a tendency to create disorder, or disturbance of law and order, or incitement to violence.
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The review bench gets over the Kedar Nath decision by saying that it was rendered before the 16th Amendment of the Constitution in 1963, which introduced ‘sovereignty and integrity of India’ as one of the grounds on which reasonable restrictions on the right to form associations under Article 19(1)(c) could be imposed. It however misses the point that the judgment in Kedar Nath was rendered in the context of the pre-16th amendment provision of Article 19(2), which among other things authorised restrictions on freedom of speech on the ground of “undermines the security of, or tends to overthrow, the State”. Therefore, the restrictions authorised by 16th Amendment of 1963 on various fundamental rights in the interests of the sovereignty and integrity of India do not make any real difference.
The task of balancing constitutionally guaranteed fundamental rights and constitutionally permitted restrictions is never an easy one for the courts. As I mentioned earlier, active participation irrespective of membership is taken care of by the UAPA. It is unfortunate that passive membership, which is, inferential at that, is now made punishable.
The author is a Senior Advocate at the Supreme Court of India.
(Edited by Anurag Chaubey)