Guest Post: A Moral Case against Criminalisation of Mere Membership in UAPA [Part 1]

(This is a guest post by Kartik Kalra)

[This is the first of a two-part series on evaluating present association-based standards and proposing new mens rea-based standards to assess the commission of membership-based offences under the UAPA. This part evaluates moral and conceptual reasons in refusing to criminalise guilt by association. The second part evaluates UAPA jurisprudence, discerning the continued criminalisation of guilt by association, and proposes mens-rea based standards to assess the commission of membership-based offences.]

“Had there been no Constitution having Fundamental Rights in it then of course a plain and literal meaning could be given to Section 3(5) of TADA or Section 10 of the Unlawful Activities (Prevention) Act.” 

- Indra Das v. State of Assam [(2011) 3 SCC 380], a judgement acquitting the accused from the offence of joining the United Liberation Front of Assam (“ULFA”). 

The Unlawful Activities (Prevention) Act, 1967 (“UAPA”) creates presumptively strict liability membership-based offences, which call for a conviction based on membership of unlawful associations or terrorist groups. These are present u/ss. 10, 20, 38 and 39 of the UAPA, all of which criminalise the membership of entities that have been prohibited. For the offence u/s 10, one must be a member of an association declared unlawful by the government; for the offences u/ss. 38 and 39, one must be a member of a terrorist organization while having an intention to further its activities; and for the offence u/s 20, one must be a member of a terrorist organization that has committed a terrorist act. The Terrorist and Disruptive Activities Act, 1987 (“TADA”) also carried membership-based offences of a similar tenor, and Courts had successively read down its membership clause to impose a burden on the state to demonstrate the accused’s “active membership” of the impugned group. This was done in Arup Bhuyan v. State of Assam [(2011) 3 SCC 377], which pronounced the requirement of active membership while stipulating that a close connection to committing, inciting or promoting violence would be a factor in its determination (¶12). On this basis, it acquitted the accused of the offence of joining the ULFA, given that the active nature of their membership could not be established. 

Everyone’s fate, however, is not like that of the accused in Indra Das or Arup Bhuyan. 

The UAPA has been used exhaustively in recent times to prosecute persons accused of organizing the Elgaar Parishad, an event commemorating the 200th anniversary of the battle of Bhima Koregaon. Speeches were delivered, plays performed and sloganeering done, which later devolved into an unfortunate spate of violence leading to the death of one individual. In connection to this violence, the state has effected arrests of sixteen civil society activists for membership-based offences. The allegations against most are similar, which concern their membership of the Communist Party of India (Maoist) (“CPI-Maoist”), which in-turn is alleged to have organised the event. 

This membership, the state has mostly claimed, constitutes an offence irrespective of the impugned individuals’ own roles and intentions in furthering the group’s violent aims and insidious projects, if any. The question of membership is one of degree: under what conditions can it be considered that an individual was a member of a group, and what extent of membership must be demonstrated to establish the commission of a membership-based offence? Must the accused’s intent to further the aims of the group or their role in the incitement of violence be demonstrated, or is the mere possession of literature or documents sufficient to constitute a membership-based offence?

In this piece, I present a moral case against the criminalisation of mere membership in the form of possession of literature or convergence of beliefs, and argue that the principles of moral agency dictate that an organization’s acts of terror must not be unfairly imputed to a member unless they themselves partake actively in such acts. In other words, one’s non-violent convergence of beliefs or possession of literature doesn’t per se constitute an act of terror. In order to make this argument, firstly, I present arguments in favour of the criminalisation of mere association; and secondly, I rebut those arguments by demonstrating that the criminalisation of guilt by association is inconsistent with the principle of universal moral agency, and is disproportionate in nature. I argue for mens-rea based standards to evaluate the commission of membership-based offences in Part II.

Conceptual Underpinnings of the Principle Against Guilt by Association

In State of Kerala v. Raneef [(2011) 1 SCC 784], a doctor who provided medical treatment to persons accused of offences of a religious character was charged for a membership-based offence under the UAPA. Assuming that the doctor was indeed involved with the banned group in treating them, is this sufficient to constitute the commission of a membership-based offence? Does the doctor’s own act of providing medical treatment constitute an act of terror?

Andrew von Hirsch proposes that acts meriting criminalisation may be largely harmless at present, but may be susceptible to trigger a “series of events that eventually risk harmful consequences”. On this basis, the long-run harm anticipated from presently innocuous acts serves as justification enough for proscribing them. Consider the example of the consumption of drugs, which may be regarded as a prima facie self-regarding action. The harm caused by their consumption, however, may be remote: one person’s consumption of drugs may be susceptible to creating a general environment where the consumption of drugs is acceptable, which leads to lower social productivity, greater poverty, and a rise in theft. The state may, therefore, have legitimate grounds to criminalise the consumption of drugs based on this perception of remote harm.

Other scholars have applied the formulation of remote harm to membership-based offences, drawing a distinction between exclusively terrorist organizations and their ancillary counterparts. The latter refers to entities that serve multiple functions, whose link with terrorism is the solely the state’s suspicion instead of a demonstrable function of the group. For the former, it has been argued that membership of any kind, whether active or passive, be legitimately criminalised. The immense magnitude of remote harm threatened via the large-scale destruction of life and property is often considered a justification for early criminalisation. For the latter kind of groups, it has been argued that there exists greater scope for evaluating the individual’s conduct within the organization instead of criminalising mere membership.

Overall, the theoretical backing of early criminalisation rests on the presumption of the moral (and constitutional) acceptability of imputing the responsibility of the occurrence of future uncertain events on persons disconnected from them. I shall now rebut the arguments presented in this section, and argue that the criminalisation of mere membership militates against the principle of universal moral agency and is disproportionate in nature. 

Moral Agency and the Disproportion of Guilt by Association

The distinction between exclusively terrorist and ancillary organizations, along with the differential criminalisation of memberships in both, I propose, is incompatible with the minimum moral respect owed to persons for their own actions and the standard of physical violence that is tied to definitions of terrorism, including that within UAPA.

Dworkin argues that a fundamental feature of political society is that the state treats all its members as responsible moral agents (200). All persons, he argues, must be free to hear all opinions despite a possibility of their swerving towards dangerous or offensive convictions. This, I propose, applies equally to association: as long as I am a moral agent who takes responsibility for my own actions, I must be free to join whichever organization I desire as long as my own conduct doesn’t constitute an act of terror via the perpetuation or endorsement of large-scale violence. Imputing to one an organization’s acts of terror solely due to their convergence of beliefs with those of the organization, or via the possession of its literature, in disregard to their own positive acts and personal convictions that are disconnected to the endorsement or commission of violence, constitutes a case of criminalising guilt by association. 

Even for extremely offensive views that arise from one’s membership that shake one’s moral conscience but stop short of a nexus with violence, the remedy must not be found in a wanton labelling of the membership itself as a terrorist offence. In other words, criminalising mere membership as an act of terror is disproportionate. 

Conclusion

In this piece, I have argued that theories justifying the criminalisation of membership-based offences in the UAPA subordinate the principle of universal moral agency, and unfairly impute responsibility of the organization’s violent acts to the individual. An individual’s membership in the form of possession of literature or convergence of beliefs doesn’t constitute an act of terror by itself, and considering it one is disproportionate and militates against their moral agency. In Part II, I show how the UAPA continues to criminalise guilt by association, and also propose mens-rea based standards to assess the commission of membership-based offences.