(This is a guest post by Kartik Kalra)
[This is the second 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 piece proposes mens rea based standards to assess the commission of membership-based offences under the UAPA.]
In Part I of this two-part series, I have argued that there exist strong moral reasons in refusing to criminalise guilt by association, and that theories justifying the criminalisation of mere membership do so via the subordination of the principle of universal moral agency. In this part, I propose mens rea based standards to evaluate the commission of the membership-based offence u/s 20, arguing that it is a natural corollary of the principle of active membership laid down in Arup Bhuyan. Active membership, I propose, ultimately boils down to mens rea standards of having an intention of committing, inciting, promoting, or directing violence via one’s membership. In order to do so, firstly, I discuss present standards of conviction for membership-based offences u/ss. 10, 20, 38 and 39; secondly, I propose mens rea based standards to evaluate the commission of the offence u/s 20, and argue that it is fundamentally what active membership means; and thirdly, I examine three recent cases on membership-based offences u/s 20, arguing that the membership criteria proposed above would yield principled outcomes that are acceptable in a constitutional order governed by the rule of law.
Arup Bhuyan, Active Membership and Section 38
Arup Bhuyan [(2011) 3 SCC 377] concerned an individual’s alleged membership of a banned organisation, which was criminalised u/s 3(5) of TADA. While the petitioner argued that he wasn’t a member of that organisation at all, the Court held that even if he was a member, mere membership would not constitute an offence:
16. Hence, mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.
The Court, therefore, read down the impugned section, which was pari materia Sections 10 and 20 of the UAPA, to criminalise only those acts that arise from memberships and share a reasonable nexus to violence and public disorder. This principle has been reaffirmed in Sundaramurthi v. Commissioner of Police [2011 SCC OnLine Mad 2821], State of Kerala v. Raneef [(2011) 1 SCC 784] and Indra Das v. State of Assam [(2011) 3 SCC 380], all of which acquitted the accused due to the state’s insistence on the use of mere membership to constitute an offence. While proper standards to establish the offence u/ss. 10 and 20 have not been laid down yet, Thwaha Fasal v. Union of India [2021 SCC OnLine SC 1000] has done the task for the offence u/ss. 38 and 39.
In Thwaha Fasal, the accused was also alleged to have been a member of the CPI-Maoist, and was alleged to have committed the offence of membership u/s 38. He sought to obtain bail u/s 43, in face of the onerous standards laid down in Watali. The Court, however, held that even by the Watali standards to grant bail, the prima facie commission of the offence u/s 38 would have to be demonstrated by the state, which requires proving the presence of an intention to further the activities of a terrorist organisation:
13. Thus, the offence under sub-section (1) of Section 38 of associating or professing to be associated with the terrorist organisation and the offence relating to supporting a terrorist organisation under Section 39 will not be attracted unless the acts specified in both the Sections are done with intention to further the activities of a terrorist organisation.
On this basis, given that the evidence produced by the state concerned only the accused’s possession of books and documents relating to the CPI-Maoist, the Court held that no prima facie offence u/ss. 38 and 39 can be discerned due to unavailability of material to impute an intention to further the organisation’s intents. (¶39). For an offence u/s 38, therefore, proof of mere membership would be insufficient – the state would also have to prove that such membership carried the intention to further its activities, meaning that it constituted active membership.
Proposing Standards for the Membership-Based Offence u/s 20
The decision in Thwaha Fasal, however, is nothing radical, given that the text of Section 38 itself mandates the presence of an intention to further the aims of the terrorist organisation. Sections 10 and 20 is where the trouble lies, both of which create presumptively strict liability offences, eliminating the distinction between active and passive memberships, and therefore the scope for a mens rea enquiry. While Section 10 criminalises the membership of an unlawful association, Section 20 criminalises the membership of an organisation that has committed terrorist acts as defined u/s 15.
Following Arup Bhuyan, the Court has read the term “membership” solely to connote active membership, without which the offence cannot be established. Consider the judgement in Indra Das, which acquitted the accused of the membership-based offence due to the passive nature of their membership:
7. In the present case, even assuming that the Appellant was a member of ULFA which is a banned organisation, there is no evidence to show that he did acts of the nature abovementioned. Thus, even if he was a member of ULFA it has not been proved that he was an active member and not merely a passive member. Hence the decision in Arup Bhuyan case squarely applies in this case.
What, however, distinguishes an active member from their passive counterpart? It is my claim that other than via mens rea standards of evaluating an intention to further the aims of the organisation, which is capable of demonstration via the commission, incitement or promotion of violence, the distinction between active and passive membership cannot be discerned. Given that the requirement of active membership has been squarely laid down in Arup Bhuyan and its conceptual underpinnings in Part I, I shall now demonstrate that the standard of active membership necessarily includes mens rea requirements, and that present standards on mens rea strongly favor reading the same into Section 20.
It must be noted that Arup Bhuyan and Indra Das are clear on the necessary connection between the individual and the violence in order to constitute the membership-based offence, either in the form of commission, incitement or promotion. Further, Section 3(5) of TADA, to which Arup Bhuyan read in the criteria of active membership, was pari materia Sections 10 and 20 of the UAPA, further justifying the use of the active membership criteria. Indra Das had already applied this criterion to Section 10, and Section 20 can be considered the only purely-membership based offence under the UAPA.
It must be noted that cases are clear on the exhaustive nature of the connection to violence to constitute active membership, failing which questions of constitutional concern arise. In other words, there must be an intention to cause violence via the membership. This doesn’t mean that the expressive advocacy of terrorist views can never constitute an offence u/s 20, for questions of incitement are also ultimately navigated using mens rea standards, even u/ss. 153A or 295A of the Penal Code. Any mode of navigating the question of the necessary condition of violence that excludes mens rea would be disingenuous, for it would attempt to show why an intention to cause violence is obviated but the connection to violence subsists. As long as the criterion of active membership is imported, it must necessarily mean that the Court is undertaking an enquiry of the accused’s intention to cause violence via their membership.
Nathulal v. State of Madhya Pradesh [AIR 1966 SC 43] has held that a presumption of mens rea must exist for any offence (¶4), and Kartar Singh v. State of Punjab [(1994) 3 SCC 569] has held that mens rea requirements may be read in when the contested term is vague or imprecise:
79. Therefore, in order to remove the anomaly in the vague and imprecise definition of the word, 'abet', we for the above mentioned reasons, are of the view that the person who is indicted of communicating or associating with any person or class of persons who is engaged in assisting in any manner terrorists or disruptionists should be shown to have actual knowledge or to have reason to believe that the person or class of persons with whom he is charged to have communicated or associated is engaged in assisting in any manner the terrorists and disruptionists.
The imprecision of the terms “abet” and “membership” cannot be considered qualitatively distinct, which is an additional reason for reading in mens rea requirements u/s 20. The burden to obviate mens rea from any statute, pursuant to Nathulal, is extremely high since it must be absolutely clear that the “implementation of the object of the statute would otherwise be defeated” via the reading in of mens rea (¶4).
On this basis, I submit that active membership is fundamentally a question of mens rea, which is an integral component of the offence u/s 20. In order to prove the commission of the offence u/s 20, therefore, the state must prove that the individual had an intention to cause violence via their membership, and only a successful demonstration of the same may lead to conviction.
Jurisprudence on UAPA and the Ghost of “Guilt by Association”
Case law assessing the commission of membership-based offences is largely confined to an evaluation of their prima facie commission u/s 43 of the UAPA, determining whether the accused is eligible to obtain bail according to Watali standards of “broad probabilities”. Most cases concerning the incidents at Bhima Koregaon are enquiries u/s 43, instead of enquiries determining the actual commission of the offence u/s 20. In this section, I use two cases of this variety – Anand Teltumbde’s and Jyoti Jagtap’s – along with Saibaba’s case that undertakes an enquiry u/s 20, to show the unprincipled nature of an enquiry divorced from active membership standards. I then show that the standard of active membership via demonstration of mens rea yields principled outcomes that are acceptable in a democratic order governed by the rule of law, as opposed to present case law’s application of the doctrine of guilt by association.
Jyoti Jagtap v. NIA [2022 SCC OnLine Bom 3869] was a Section 43 enquiry, which also concerned the accused’s membership the CPI-Maoist and the Kabir Kala Manch (“KKM”), the latter allegedly being the former’s “frontal organisation”. In concluding that the membership-based offence u/s 20 was prima facie made out, the Court relied on a witness statement that placed the accused with five alleged Naxals in 2011 (¶9.1), her performance of street plays (¶9.7), and her role in “ridiculing the government” via incendiary phrases (¶9.8). Further, it alluded to the “association of Appellant with the prominent members of CPI(M)”, along with KKM’s attempts to “establish underground contact with the banned terrorist organisation CPI(M) through its activist which include the Appellant” (¶10). In this analysis, the Court doesn’t undertake an enquiry into the accused’s own role within either the CPI-Maoist or the KKM, refusing to examine her own role in committing, inciting, promoting or directing violence. It blithely used a witness’s recalling of a ten-year old meeting as evidence of her membership, whose link with the commission or incitement of violence was not examined.
Further, the judgement of the Sessions Court at Gadchiroli in State of Maharashtra v. G.N. Saibaba [S.C.No.13/2014 & 130/2015], an enquiry u/s 20, held the accused guilty of being a member of the CPI-Maoist and one of its frontal organisations. In order to reach this conclusion, the Court relied on a hard disk allegedly seized from the accused’s own home, which contained Maoist literature, information of the communist movement in India, along with minutes of meetings of the alleged frontal organisation (¶452-464). Some of this literature didn’t even carry the name of the accused, but the Court held that the mere finding of these documents inside the accused’s computer resources indicated that they belong to the accused himself (¶747). The same course was followed in the judgement of the Special Court in NIA v. Anand Teltumbde, which relied upon a single letter from one “Central Committee” to “comrade Anand”, and no witness accounts could provide a proximate link of the accused to the CPI-Maoist.
In these three judgements, Courts haven’t undertaken an evaluation of link between the accused with the violence that actually ensued, instead inferring membership via past association, expressive advocacy or the possession of literature. This, in no way, can be considered “membership” in the manner it has been understood in Arup Bhuyan’s line of cases, for the link between the membership and the violence, whether via commission or incitement, has not been demonstrated. Jyoti Jagtap is imprisoned effectively because someone allegedly saw her with five alleged Maoists ten years ago, and Saibaba is in prison due to the widespread possession of communist literature. There is no nexus between the either of these events to the commission, direction or incitement of actual physical violence, and the state hasn’t undertaken any demonstration of their intention to undertake such violence via their membership. This is plainly in violation of both of their rights to free speech, for the availability of information via the consumption of literature, along with the freedom to speak freely without causing public disorder, are both protected within Article 19(1)(a) and have been reaffirmed in a catena of cases. Fuller proposes that a society governed by the rule of law must apply rules in a manner that is consistent with their meaning, and that the rules be reasonably clear and specific. Criminalisation of guilt by association meets neither, for there is absolute arbitrariness in prosecuting persons for membership-based offences based on the possession of literature or decade-old alleged meetings, apart from being violative of one’s freedom of expression.
Conclusion
On this basis, I submit that the doctrine of guilt by association, as has been applied by Courts repeatedly to convict persons of membership-based offences (in connection to violence at Bhima Koregaon, amongst other cases) is morally reprehensible, legally unsound and unacceptable in a constitutional order governed by the rule of law. Membership u/s 20 of the UAPA (along with ss. 10 and 38) must be confined to active membership, the only way of discerning which is the application of mens rea standards to examine the link between the individual’s membership and the commission, incitement, promotion or direction of violence. The conviction of persons based on drawing inferences of their membership via their past associations or the possession of literature is extremely arbitrary, and denies the individual’s own moral agency to shape their opinions and exchange their views freely.
The solution is also extremely simple, which involves the recognition of the continued applicability of Arup Bhuyan to membership-based offences under the UAPA. Unless mens rea standards undertaking a violence-based assessment of membership are read u/ss. 10 and 20, membership-based offences will continue to exist in an unconstitutional limbo, acutely threatening free expression.
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