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Monday, Oct 21, 2019

The law and its limits

All members of an association accused of a crime cannot be held guilty on that count. However, membership of an outlawed organisation is a crime. Nagendar Sharma writes.

delhi Updated: Jan 06, 2011 00:09 IST
Nagendar Sharma
Nagendar Sharma
Hindustan Times

Is a person associated with a banned organisation or an individual who has committed a heinous offence guilty in the eyes of law?

The Supreme Court's endorsement of bail to a doctor who treated a person guilty of a murderous assault on a professor in Kerala has triggered a debate on this.

The apex court's verdict has also turned the spotlight on the controversial Unlawful Activities Prevention Act (UAPA), which got more teeth after the 26/11 Mumbai attacks of 2008, and has been a major point of disagreement between the law enforcement agencies and civil rights activists.

The present case is about the top court's verdict dismissing the appeal of the Kerala government, which had challenged the Kerala high court's decision to grant bail to Dr Raneef (the judgment mentions only one name), a dentist based in Ernakulum, in September last year.

The doctor was charged under various provisions of the Indian Penal Code (IPC), the Explosives Act and the UAPA for having allegedly treated one of the assailants who had attacked and chopped off the right palm of Professor TJ Jacob in July last year, since he (the doctor) was also a member of the organisation to which the attackers belonged. The alleged assailant had been injured in an altercation with the professor's son and required stitches in his back.

The ostensible reason for attacking Jacob was that he incorporated a question for the internal examination of a B Com paper criticising Prophet Mohammed and Islam.

The alleged attackers were members of the Popular Front of India (PFI), an organisation registered under the Societies Registration Act, and affiliated to the Social Democratic Party of India, which is recognised by the Election Commission.

"The respondent, being a doctor, was under the Hippocratic oath to attempt to heal a patient. Just as it is the duty of a lawyer to defend an accused, so also it is the duty of a doctor to heal."

"Even a dentist can apply stitches in an emergency. Prima facie we are of the opinion that the only offence that can be levelled against the respondent is that under Section 202 IPC, that is, of omitting to give information of the crime to the police, and this offence has also to be proved beyond reasonable doubt. It is a bailable offence," the Supreme Court has stated.

On the allegation that Dr Raneef was a member of the PFI, the apex court said: "... There is no evidence as yet to prove that the PFI is a terrorist organization, and hence the respondent cannot be penalized merely for belonging to the PFI. Moreover, even assuming that the PFI is an illegal organization, we have yet to consider whether all its members can be automatically held to be guilty."

The Supreme Court has cited three judgments from the United States to draw a distinction between organisations declared illegal and the individual acts of their members.

"The SC observations are limited to the merits of the bail plea. They do not have any implications for any other case, including the trial of this very case," says EM Sadrul Anami, the doctor's lawyer.

Veteran jurist and former Supreme Court judge VR Krishna Iyer says though he disagrees with many of the provisions of the UAPA, being a member of an organisation banned by law leaves the individual liable to face legal action.

"As the law stands today, you cannot escape the liability of being booked under various provisions of anti-terror laws by merely saying you have done nothing wrong."

Another veteran jurist and former Delhi high court chief justice Rajinder Sachar says the Supreme Court had upheld the constitutional validity of the UAPA in 2004 after a majority of the provisions of the repealed Prevention of Terrorism Act (POTA) were added to it.

"The issue of being guilty of association is a matter of interpretation. According to the law, being a member of a banned organisation is an offence, but you can't be charged for a specific crime unless your role is made clear."

Supreme Court lawyer Sushil Kumar is of the view that though anti-terror acts stand in opposition to the natural law of justice, the concept of association in cases of the accused has to be understood.

"The UAPA is very clear. Being a member of a banned organisation according to the list annexed in the Act provides for punishment under that specific section. You cannot be held guilty for all the offences alleged to have been committed by the said organisation. The prosecution will have to prove the role of all the accused named in any case," he said.

Kumar said in his view the Supreme Court verdict on the doctor's bail makes it clear that he had nothing to do with the attack on the professor.

"This, however, does not mean that the doctor has been exonerated. Do not forget that the Supreme Court had granted bail to Dr Binayak Sen and now the trial court has held him guilty and sentenced him to life imprisonment," the senior lawyer said.

First Published: Jan 06, 2011 00:06 IST

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