The government wants the Supreme Court to reconsider a verdict that says being a member of a banned organisation doesn’t make a person criminal, saying the order poses a risk as the country faces growing threat from ISIS and Pakistan-based terror outfits.
Following the judgment -- issued five year ago -- high courts were releasing members of banned outfits, making it tough for security agencies to deal with emerging challenges, the country’s second-highest law officer solicitor general Ranjit Kumar told the court on Monday.
The plea comes at a time when reports have come of youngsters heading to Syria and Afghanistan to join the so-called Islamic State or the al Qaeda. The government is also concerned about overt support enjoyed by the Maoists rebels, who often target security forces.
A three-judge bench headed by justice JS Khehar agreed to hear the Centre’s plea in the open court, which is rare for a review petition that is decided through a procedure called “hearing by circulation” in which arguments are not allowed.
The outcome of the case will have a bearing on free speech as statements or processions in favour of members of banned outfits may become a crime if the court accepts the government’s view.
A refusal will make security agencies’ job difficult as they will not be able to act against potential terrorists and their supporters. This can prove tricky as the agencies are trying to prevent youngsters from leaving the country to join terror outfits or stop their radicalisation, especially through the internet.
The court is expected to strike a balance between the conflicting claims -- of security needs and civil liberties -- within the Constitution that offers ample scope for imaginative interpretation of legal provisions.
A bench headed by justice Markandey Katju had on February 2, 2011 held: “Mere membership of a banned organisation cannot incriminate a person unless he is proved to have resorted to acts of violence of incited people to imminent violence, or does an act intended to create disorder or disturbance...” The verdict came in the case of Arup Bhuyan versus State of Assam.
The terrorist and disruptive activities act, or TADA, declared membership of a banned organisation a crime. But on February 10, 2011, the SC read down TADA provisions to acquit Sri Indra Das, an alleged member of banned Ulfa.
In another case, the court upheld the bail granted to a doctor who treated one of the men accused of chopping off the hand of a Kerala teacher for alleged blasphemy against Islam. The doctor was arrested for his association with the accused, members of the Popular Front of India.
Earlier this year, a Delhi court acquitted Maoist ideologue Kobad Ghandy of terror charges.
Quoting a 1966 US supreme court decision, the Indian top court had said: “… A law that applies to membership without the ‘specific intent’ to further the illegal aims of the organisation infringes unnecessarily on protected freedoms. It rests on the doctrine of ‘guilt by association’, which has no place here.”
A study by Delhi-based Jamia Teachers Solidarity Association had in 2013 said 200 Muslim youth in Madhya Pradesh were arrested or prosecuted in 12 years for their alleged association with terrorist organisations.
Many were thrown into jail for either possessing “incriminating literature” or shouting slogans and pasting posters in favour of the banned Students Islamic Movement of India.