The Supreme Court has restored the doctrine of “guilt by association” in criminal jurisprudence in India and declared that mere membership of a banned organisation will be a crime under country’s anti-terror law — Unlawful Activities (Prevention) Act (UAPA), 1967. The SC has overruled a bunch of its 2011 judgments.
Key points
- A three-judge bench headed by justice MR Shah affirmed the constitutional validity and the rationale of Section 10(a)(i), which makes continued membership of a banned organisation a crime punishable with a jail term up to two years.
- In 2011, three separate judgments (Arup Bhuyan, Sri Indra Das and Raneef cases) by the apex court had declared that mere membership of a banned organisation would not ascribe criminal liability on the accused unless there is material to show specific intent to further the illegal aims of the organisation or some overt unlawful acts.
- In doing so, the apex court heavily relied on US Supreme Court judgments which outrightly dismissed the doctrine of “guilt by association” and cited the right to free speech.
- The Union government sought a review of the 2011 judgments, complaining that not only it was imperative for the two-judge benches to seek the Centre’s views at the time of hearing these cases but that reading down of the TADA and the UAPA provision impacted the prosecution of cases for unlawful association with banned outfits.
- The court clarified that persons who had left the organisation and were not members at the time it was declared unlawful, cannot be held liable under Section 10(a)(i) of the UAPA.
- Section 10(a)(i), framed in the wisdom of the Parliament, did not hurt citizens’ right to form associations or unions, which is part of the fundamental right to free speech. It was a reasonable restriction to protect the nation. Fundamental rights are not absolute, the court said.
- The court referred to Article 19(4), which mandated that the citizens’ right to form unions or associations was subject to the power of the state to make laws to impose “reasonable restrictions” in the interests of the sovereignty and integrity of India or public order or morality.
- The three-judge Bench said the earlier judgments in the cases of which had “read down” Section 10(a)(i) to exclude mere membership of an organisation from criminal liability, followed the American law blindly. These judgments had not heeded the restraints stitched into Article 19(4) on the right of citizens to form associations and unions.
