SC restores criminal liability for mere membership of a banned organisation
SC had restored the doctrine of “guilt by association” as it set aside its 2011 judgments, which had ruled that mere membership of a banned organisation cannot be a crime
The Supreme Court on Friday restored the doctrine of “guilt by association” as it set aside its 2011 judgments, which had ruled that mere membership of a banned organisation cannot be a crime.
A three-judge bench headed by justice MR Shah noted in its judgment that there was no challenge to the law when the principle of ascribing criminal liability on a person because of their association with a banned organisation was rejected by the court in its previous judgments, nor was the union government heard before the verdict.
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Overruling a bundle of previous judgments, the bench, also comprising justices CT Ravikumar and Sanjay Karol, affirmed the validity of Section 10(a)(i) in the Unlawful Activities (Prevention) Act (UAPA), 1967, which makes membership of a banned organisation a crime punishable with a jail term of up to two years.
Underlining that the impugned provision was completely in sync with the objective of the UAPA, the bench held that continued membership of an organisation banned under the 1967 law should be a crime against the sovereignty and integrity of the country.
The top court was considering the Centre’s plea to review the two judgments of 2011, in which a provision of the Terrorist and Disruptive Activities (Prevention) Act (TADA) (now repealed) was read down to hold that mere membership of a banned organisation cannot incriminate a person unless he or she resorted to or incited violence.
These decisions had come while hearing two separate cases of bail and conviction under TADA.
The Centre complained that not only it was imperative for the two-judge benches to seek its views at the time of hearing these cases but the reading down of the TADA provision had also impacted a similar provision under the Unlawful Activities (Prevention) Act (UAPA), which prescribes punishment for being a member of an unlawful association.
In 2014, the matter was referred to a three-judge bench.
While arguing the case in February, solicitor general Tushar Mehta, representing the union government, argued that the 2011 judgments failed to consider a raft of significant considerations, including the legislative intent and the fact that Parliament, in its wisdom, has engrafted certain provisions to keep the security of the nation intact.
“If Lashkar-e-Taiba is a banned organisation, a person cannot say I am just a member and have a right to remain a member. The right to form an association cannot be an unbridled right, and when it affects sovereignty and integrity of the country, restrictions will be reasonable. The law is preventive in nature and not just punitive,” Mehta had then contended.
Senior advocate Sanjay Parikh, appearing for the other side, had defended the 2011 judgments on the ground that a series of judgments by the Supreme Court since 1960s have held that there must be an overt act of incitement or violence before a person can be prosecuted.
As it reserved its verdict in February, the bench took a grim view of the fact that the 2011 judgments had come while hearing criminal cases in which no party had questioned the legal validity of the TADA provision or the doctrine of “guilty by association”.
“We have to also consider the jurisdiction under which we are hearing a case. If a bail matter is before a court, how can it go into the constitutional validity of a provision without a challenge to that law? Can it be said that merely because we are the Supreme Court, we can go into the validity of anything in any manner?” it had asked on February 8.
