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Club rules don't apply?

Members of any banned outfit are not outlaws, says the apex court. The ruling defies reason

india Updated: Feb 06, 2011 22:04 IST

The Supreme Court has ruled that "mere membership" of a banned organisation does not make a person a criminal. What does, it added in a case pertaining to an alleged activist of the banned United Liberation Front of Asom (Ulfa), is the accused member’s involvement in resorting or inciting people to violence. While the ruling puts the business of current judicial methods under the scanner, it does beg the question: what is the purpose of banning organisations if their proven members are not 'banned'?

The operative word, of course, is 'proven'. In the case that came under the Supreme Court's ruling on Friday, the accused, Arup Bhuyan, was convicted under Section 3 (5) of the lapsed Terrorist and Disruptive Activities (Prevention) Act (Tada) for being an Ulfa member. The court stated that it has not been proved that Mr Bhuyan was an "active member and not a mere passive member". Citing the Constitution's Article 19 (9) pertaining to free speech and Article 21 regarding liberty, the court added that Section 3 (5) of Tada — that made membership of a banned organisation automatically a crime — could not be read "literally". As far as we can see, the issue is not so much about the legality or otherwise of being a member of the Ulfa, the Lashkar-e-Tayyeba, the Communist Party of India (Maoist) or any of the 32 organisations in the government's list of banned outfits linked to terrorism or violence, but about fixing the grey area that exists when it comes to proving that an accused is a member of a contraband organisation.

Making it legal for someone to be a member of an illegal outfit makes as much sense as allowing drivers of dangerously unsafe vehicles to ply the roads even though the vehicles are prohibited. One understands the procedural difficulties of proving that an accused is a member of, say, al-Qaeda. And the apex court underlining the fact that a confession gained by the police (or, indeed, the media) without the requisite evidence in tow will not stand up in a court of law is laudable. But to make even such an attempt to prove one's entrenched association — in the form of 'active' or 'passive' membership — of a banned outfit redundant is to, for all practical purposes, make the notion of banning organisations redundant. Instead of giving an automatic clean chit to an accused, it would be far better if the manner by which an accused is found guilty is firmed up leaving little space for cutting corners.