The Arup Bhuyan Review

Twelve years. That's about how long the judgments in Raneef [(2011) 1 SCC 784], Arup Bhuyan [(2011) 3 SCC 377] and Indra Das [(2011) 3 SCC 380]—all decided by the same bench—remained good currency. For eleven of those, they remained under a cloud on account of review petitions filed in 2011 by the Union of India and the State of Assam, in which the Supreme Court found some merit in 2014 and decided for the matters to kept before a larger bench. That larger bench has now rendered its judgment, partly overruling the decisions [Arup Bhuyan (Review) - decided on 24.03.2023 (lead opinion by Shah, J. and a concurrence by Karol, J.]. 

For convenience, I've extracted the holding from the lead opinion below:

"18. In view of the above and for the reasons stated above we hold that the view taken by this Court in the cases of [Raneef, Arup Bhuyan, and Indra Das] taking the view that under Section 3(5) of Terrorists and Disruptive Activities (Prevention) Act, 1987 and Section 10(a)(i) of the Unlawful Activities (Prevention) Act, 1967 mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incited people to violence and does an act intended to create disorder or disturbance of public peace by resort to violence and reading down the said provisions to mean that over and above the membership of a banned organisation there must be an overt act and / or further criminal activities and adding the element of mens rea are held to be not a good law. It is observed and held that when an association is declared unlawful by notification issued under Section 3, which has become effective of sub-section 3 of that Section, a person who is and continues to be a member of such association is liable to be punished with imprisonment for a term which may extend to two years, and shall also be liable to fine under Section 10(a)(i) of the UAPA, 1967." [Emphasis in original]

This post deals with Arup Bhuyan (Review) at three levels. The first level is engagement with the opinions to discern what exactly has been held outside of the concluding paragraph, and how. The second level is a look at judgments which were being reviewed—Raneef, Arup Bhuyan, and Indra Das—to understand the foundational missteps committed in Arup Bhuyan (Review). Finally, the third level zooms out from this particular case to look at the broader landscape of personal liberty and the law. 

What has the Court done in Arup Bhuyan (Review)

The ultimate conclusion in Arup Bhuyan (Review) has been extracted above. Simply put, it means that for purposes of the relevant clauses — Section 3(5) of TADA and Section 10(a)(i) of the UAPA — there is no need for the state to show an accused was an 'active' member of an unlawful organisation (the UAPA language) for purposes of the offence. Note that the UAPA today deals with 'terrorist acts' differently and far more seriously than it does 'unlawful acts' and in question here was the scheme pertaining to the latter. The Court has held that it is sufficient if, after an organisation is declared as unlawful under the statute, that a person continued with her membership of the same. I will come back to just 'how' the Court arrived at this outcome. Before that, we need to flag some of the other conclusions arrived at in the opinions. 

First, the leading opinion endorses the Union of India's submission that a statutory provision cannot be 'read down' without giving an opportunity of hearing to the Union as it's interests stand to be prejudiced by such a verdict. The judgments under review were all ordinary appeals / bail hearings, not constitutional challenges to the provisions, and an exercise of 'reading down' of clauses could not have taken place in such proceedings.  

Second, both opinions endorse the view that comparative law can only be used with great care on account of the perceived uniqueness of India's constitutional regime. It has been held that one of the main problems in Raneef, Arup Bhuyan, and Indra Das was their overzealous reliance upon U.S. cases without adequately appreciating the difference between the two jurisdictions; specifically, the limits crafted upon Article 19(1) by Article 19(2) and 19(4), which seemingly were absent within the U.S. framework. 

This second point about the uniqueness of Article 19 was at the heart of why Arup Bhuyan (Review) read the legal provisions in question differently from the earlier judgments. According to both opinions, and the Union of India, these earlier judgments had completely ignored the import of Article 19(4) which had been amended in 1963 to allow restrictions on the freedom to form associations where it may prejudice interests of the sovereignty or integrity of India. A declaration that an organisation is 'unlawful' under the UAPA means that these interests are at stake, making it a reasonable restriction. This perspective was not appreciated in the earlier 2011 judgments.

The process by which a declaration of an organisation as 'unlawful' under the UAPA takes place was given great emphasis by the Union, and the Court. It was not an overnight proclamation, but the result of an 'adversarial' process  overseen by a sitting High Court judge, where members had the right to appear and object, and in which the ultimate declaration was widely publicised. The offence only punished persons who had been, and continued to be, members. Surely, there could be no imagined prejudice for 'passive' members who continued with membership after all these steps were taken under law.

The Many Missteps of Arup Bhuyan (Review) 

Understanding the correctness of the conclusions arrived at in Arup Bhuyan (Review) is impossible unless we go back to the source of the problem — the judgments under review. Proceedings chronologically (not from date of filing but date of judgment) we start with Raneef which was a bail case, where no offence of Section 10 UAPA was involved as per details available in the High Court verdict which was challenged in the Supreme Court in Raneef. 

Why did the argument of membership come up at all? Because the state made it an issue, even as it did not specifically invoke the membership offence instead choosing to go for conspiracy ones under UAPA. An incriminating circumstances raised was that all accused were either members or office bearers of PFI or SDPI which could be confirmed with recoveries made during investigation. Neither PFI nor SDPI were organisations that had been banned at the time, but to set the record completely straight on the issue, both the High Court and Supreme Court observed that merely being a member of some organisation could not lead to the conclusion that the accused was part of a conspiracy to murder hatched by specific people also alleged to be members of the same organisation. 

Next, we have Arup Bhuyan and Indra Das, both being TADA cases with similar facts. The accused was alleged to be the member of a banned terrorist organisation, on the strength of a confessional statement and no other material, and thus convicted under the TADA membership offences [Section 3(5)]. Notably, the TADA offence was not phrased like the UAPA one, and punished any person who was a member of a terrorist organisation — clauses that have been retained for terrorist, not unlawful, organisations under the UAPA as well. 

The Supreme Court in both judgments first concluded that proceeding only on a confession was not good enough to convict a person. But then it turned its attention to the unfairness of the provision in question which seemed to punish mere membership. In Arup Bhuyan the Court observed that even if the state had proven that a person was a member, it had not established that he was an 'active' member of the terrorist organisation, and nothing less would satisfy a conviction. It applied this conclusion to the facts in Indra Das as well. It was in this regard that it cited various U.S. decisions and Indian decisions in both Arup Bhuyan and Indra Das, to finally hold in only the latter case that its conclusions would apply to other similar offences which punished mere membership of organisations such as Section 10 of the UAPA.

Having read these three judgments, the fault-lines running through Arup Bhuyan (Review) become starkly apparent. At the outset, it is clear that the offences under Section 3(5), TADA and 10(a) of the UAPA were not identically worded, so a big chunk of the Court's reasoning regarding the fairness of Section 10 of the UAPA as being a reason to review the 2011 judgments would not apply to Section 3(5), TADA.  

Next, it is plain as day that the judgments did not blindly follow American precedent as they were now being accused of doing, but considered them in light of the Indian landscape. Also, to suggest that the U.S. landscape has no limits to free speech is worse than disingenuous, yet this is the broad generalisation that Arup Bhuyan (Review) subscribes to. 

To show the distance between the U.S. and India, the Court invokes Babulal Parate on the urging of the Union, and conclude that public order could justify pre-emptive strikes against speech. However, looking at a case allowing for preemptive restrictions on certain rights on account of public order such as Babulal Parate in a context of punishing persons for being members without showing anything more, is like using a chainsaw to fix your fridge. 

The reason behind invoking Babulal Parate, and raising a furore around the three judgments not having considered Article 19(4), was because the Court completely misunderstood the question at times in Arup Bhuyan (Review). Nobody claimed, or held, that the legislature is out of bounds creating laws that punish membership of banned organisations on grounds of a perceived danger to the sovereignty and integrity of India. That battle was lost in 1963 and then in 1967. The issues here were of a different order — could I be punished for merely having been a member of an organisation that was banned because it had been found as posing such a threat? Would all members go to jail, because the organisation was banned? 

Key here is another feature which the Court pays surprisingly little attention to — membership is not a defined concept within the UAPA or TADA. We are not dealing with neat lists of shareholders, but a hazy group of people where membership would depend upon perceptions and beliefs. The facts in Raneef, Arup Bhuyan and Indra Das had shown us that proving membership did not need much more than a confession and recoveries of inconvenient literature (even the Communist Manifesto might do). The entire burden of proof at trial would, in effect, stand reversed upon the accused if mere membership became the crime as the state would claim that the fact of continued membership was only within the knowledge of an accused (Section 106, Indian Evidence Act). Which would bring us to a situation where nothing short of a loud denouncement of one's beliefs and memberships would be sufficient to erase any doubts about the matter. Or, as it used to be called during the inquisition, oaths of loyalty.  

By concluding that the offence needed something more than merely being a member, the 2011 judgments had inserted a measure of fairness in line with what the Supreme Court had done in a variety of contexts in the past; none of those judgments being constitutional litigations with the Union of India in attendance, but regular criminal appeals where the liberty of persons was at stake. Foremost among these being the offences punishing possession of contraband, where courts simply read the clause to require that conscious possession must be proven. Even the judgments regarding exclusion of showing any intent or knowledge, such as in Mayer Hans George, required the court to determine whether this was the only justified way to read the statute, on its own terms and its consequences. No effort was made to undertake this exercise in Arup Bhuyan (Review) and the Court simply accepted this contention at face value. 

Is the Glass Still Half Full?

Arup Bhuyan (Review) is sparsely reasoned, sure. But zoom out, and what you see is that this decision is a microcosm of the various contests that the Indian Constitution failed to resolve even as it safeguarded various civil liberties. It never confronted state power head-on, instead adopting an approach where small zones of freedom were carved out from the overarching might of the state to at least allow for the Davids to try and battle Goliath. To call this a balancing approach is farcical, yet this notion of balancing is what has become best associated for the courts themselves when they deal with issues of fundamental rights. In Arup Bhuyan (Review) we get another reminder of just how skewed this balance always was in favour of the state's interests—many of the judgments relied upon by the Court are from the 1960s—and how much farther it can tilt in times when the popular discourse is rife with ideas of threats to security and sovereignty. This privileging of public interest even under Article 21 is as ominous for the present times as is the alacrity with which the Supreme Court in Arup Bhuyan (Review) has accepted the submission that the Union of India must be heard before a court reads down a statute.  

So why do I say that the glass can still be seen as half full? Because there is still enough life left in Raneef, Arup Bhuyan, and Indra Das and many other judgments to allow the Davids to keep fighting. Since Raneef was not dealing with the membership offence, its observations that mere membership of a banned organisation is not an incriminatory circumstance to establish that I had conspired with other members of that specific organisation to commit crimes, would still stand. And since the injustices are far greater in relation to terrorism offences than those pertaining to 'unlawful activities' (both being separate concepts under UAPA), these findings (coupled with those in the more recent judgment of Thwaha Fasal) remain invaluable. Similarly, the observations in Arup Bhuyan and Indra Das that convictions for membership offences will not follow solely on the basis of purported confessions would remain valid and useful to combat eventual prosecutions. Lastly, the Court in Arup Bhuyan (Review) limits its observations to membership of the 'unlawful' organisation under Section 10 of the UAPA and not those clauses that pertain to membership of terrorist organisations, where the arguments of mens rea would still be available.   

This is a mightily optimistic reading of the lay of the land. But what is left if even hope is lost? 

Guest Post — Jittery Jurisprudence and the Ghost of Guilt by Association: On the UAPA's Membership-Based Offences (Part 2)

(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.

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. 

Guest Post: Arup Bhuyan, Article 19(1)(a) and Bail Jurisprudence in Terror-Related Cases

I am very proud to present a guest post by Mr Gautam Bhatia, who is currently practising law in Delhi and is responsible for the Indian Constitutional Law and Philosophy Blog. 

Introduction

The distinction between “advocacy” and “incitement” is one that is familiar and important for constitutional courts world over. Advocacy of dangerous and subversive ideas is constitutionally protected, unless it rises to the level of incitement to violence, or to lawless action. In India, the distinction has had a troubled history, but it was endorsed most recently last month by Justice Nariman in Shreya Singhal vs Union of India, while striking down S. 66A of the IT Act for its failure to distinguish between the two concepts. Four years ago in 2011 though, the Supreme Court had already distinguished advocacy and incitement in a little-publicised, but extremely important case: Arup Bhuyan vs State of Assam.

Appreciating Arup Bhuyan

The case involved a challenge to the appellant’s conviction under Section 3(5) of the now-repealed Terrorist and Disruptive Activities (Prevention) Act [“TADA”], which criminalised “membership” of a terrorist gang or organization. This provision is in pari materia Sections 10 and 20 of the Unlawful Activities Prevention Act [“UAPA”], which replaced the TADA as the umbrella legislation for prosecuting terror suspects. While setting aside the conviction, Justice Katju read down S. 3(5) to save it from unconstitutionality on the grounds of Articles 19 and 21 of the Constitution. He did so by distinguishing passive from active “membership”, and restricted the latter to actual commission of violence, or incitement to violence. This distinction, naturally, closely tracks the difference between advocacy and incitement.

Arup Bhuyan distinguished between active and passive membership in a way crucial to UAPA cases, but beyond its conceptual articulation of the issues, that decision itself did not break new ground. In State of Kerala vs Raneef, decided in 2011, the Supreme Court upheld the Kerala High Court’s grant of bail to a person accused of UAPA offences, for being a member of the Muslim group “Popular Front of India”. Evidence, as ever, included “certain documents, C.D.s, mobile phone, books, etc. including a book called `Jihad'.” The Court noted that there was no prima facie evidence against the accused to warrant the restrictions on bail under S. 43(D)(5). Possession of literature was found insufficient to demonstrate active membership, and the doctrine of ‘guilt by association’ was unknown to the Constitution. A few months before, in Vishvanath vs State of Gujarat, another UAPA case built on possession of literature/propaganda, the Gujarat High Court held that “possession of such material without there being any overt act or actual execution of such ideas by itself would not form or constitute any offence.”

The importance of this jurisprudence cannot be overstated. In India, where trials for terror cases drag on for years, bail is perhaps the most crucial safeguard of personal life and liberty. But its importance is perhaps matched only by its fragility, evident upon evaluating the effect of the decision on bail jurisprudence in terror cases.

Arup Bhuyan: Impact

Section 43D(5) of the UAPA restricts the discretion of courts in granting bail: the accused “shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” In May 2011, the Anti-Terrorism Squad arrested six members of the cultural group, the Kabir Kala Manch, for offences under the UAPA. It was alleged that the KKM had close links with the banned Communist Party of India (Maoist), which was sought to be proved through the recovery of allegedly “incriminating literature and propaganda”. Accordingly, the Sessions Court refused to grant bail.

Nonetheless, in two separate applications before the Bombay High Court, Justice Thipsay granted bail. In doing so, he relied directly on Arup Bhuyan. Possession of literature relating to a banned organisation was not, in itself, prima facie evidence of active membership as understood in Arup Bhuyan. Consequently, Justice Thipsay held:

     “Since none of the applicants is said to have indulged into any acts of violence or of being a party to any conspiracy for committing any particular violent act or crime, they cannot be held, prima facie, to have committed the offences in question. Though it appears that they had come in contact with the members of the said organization, and were perhaps learning about the philosophy and ideology of the said organization, they cannot be prima facie held as offenders. Even if they were impressed by the said philosophy and ideology, still they cannot be said to be members - much less such members as would attract the penal liability - of the said organization.”

Conclusion

In conclusion, it is also important to note that the State has asked for a review of Arup Bhuyan. In light of the discussion above, it is submitted that setting aside or watering down Arup Bhuyan will present a grave risk not just to free speech jurisprudence, but more directly and immediately to the right to personal liberty and fair trial under the Constitution.

(The author has been unable to find public-domain links to some of the cases cited in this essay. He welcomes any assistance on this issue.)