COMMENTARY

Against Communist Party

In the US, this issue has been of particular relevance in the context of the Communist Party. The Indian Supreme Court, in Sri Indra Das vs State of Assam, has already explored the development of US case law in this area in detail, so brief references will be made here to those cases.7 It was stated in United States vs Eugene Frank Robel8 that a member of a communist o rganisation could not be convicted of a criminal act merely for obtaining employment in a defence facility. Scales vs US9 further clarified this by making the distinction between an active and passive member organisation. For there to be a crime, there must be “clear proof that the defendant specifically intends to accomplish the aims of the organisation by resorting to violence”. Noto vs US10 held that simply teaching the theory of communism, and even teaching the moral necessity for violence, is not the same as pre paring a group for violent action. There must be a sufficiently strong and pervasive evidence of a call to violence now or in the future.

In terms of interpretation of laws Keyishan vs Board of Regents of the University of the State of New York11 struck down a law which allowed denying jobs to teachers belonging to certain organisations. The US Supreme Court ruled it to be “too sweeping and penalising…without specific i ntent to further the unlawful aims”. Yates vs US12 further established that “the advocacy of violent action to be taken at some future time” was not enough to constitute a crime. In DeJonge vs Oregon13 the chief justice of the US Supreme Court even more specifically said that the State could not punish a person making lawful speech simply because the speech was sponsored by a certain organisation and in Bradenburg vs Ohio14 it was established that advocacy of the use of force or violating laws cannot be forbidden unless it is inciting or producing imminent violence.

Case of Fundamental Rights

Apthekar vs Secretary of State15 is the key case on this topic. The US Supreme Court, in this decision, held that fundamental rights cannot be withheld simply on the basis that a person is a member of the Communist Party. Furthermore, it held that the underlying goal of protecting n ational security could not be attained by infringing on constitutional freedoms. Less drastic measures can be used to protect the state’s security needs. Cramp vs Board of Public Instructions16 also ruled in line with this decision.

In addition to this, the Supreme Court of India’s constitutional bench judgment in Kedar Nath Singh vs State of Bihar clearly outlines the applicability of English and the Canadian law in the context of sedition:17

Under English Law a tendency to create tumult or disorder is an essential element of sedition…Section 124A must, therefore, be interpreted in the same manner as sedition is interpreted in England and it must be held that a tendency to disturb public order is an essential element of the offence under s124A. Articles 133 and 133A of the Canadian Criminal Code which deal with sedition have been given the same interpretation, 1951, Canadian SCR 265. The view taken in Tilak’s case 22 Bom 1112, in Bhalerao’s case 74 IA 89 and in the Wallace-Johnson case [1940] AC 231 that incitement to violence or a tendency to disturb public order was not a necessary ingredient of s124A, is not the correct view. 1942 FC R 38 takes the correct view and lays down that the tendency to disturb public order is a necessary ingredient of the offence under s 124A. Devi Saran’s case 32 Pat 1124 also takes the same view.

It is clear that a key requirement to establish a crime in this context is the actual incitement of violence or disturbance of public order. Logically this should follow in the case of banned organisations too. Lastly, the European Court of Human Rights, in Vogt vs Germany,18 ruled that the rights to freedom of association and freedom of expression had been violated when a language teacher had been fired from her post simply on the basis that she was a member of the German Communist Party. It was not sufficient that she was merely a member of this organisation.

To conclude, the substantial body of n ational and international law clearly supports the decision made in Arup Bhuyan vs State of Assam, both from the perspective of national security as well as human rights. The central government’s attempt to question the judgment is evidently ill-informed.

Notes

1 “Govt to Challenge SC View on Banned Outfit Members”, Times of India, New Delhi, 8 February 2011. 2 Sri Indra Das vs State of Assam 2011 SC. 3 Kedar Nath Singh vs State of Bihar 1962 AIR 955. 4 State of Kerala vs Raneef 2001 (1) SCALE 8. 5 Elfbrandt vs Russel 384 US 17 (1966). 6 Clarence Bradenburd vs State of Ohio 395 US 444 (1969). 7 Sri Indra Das vs State of Assam 2011 SC. 8 United States vs Eugene Frank Robel 389 US 258. 9 Scales vs US 367 US 203 (229). 10 Noto vs US 367 US 290 (297-298). 11 Keyishan vs Board of Regents of the University of the State of New York 385 US 289, 606 (1967). 12 Yates vs US 354 US 298 (1957). 13 DeJonge vs Oregon 299 US 353 (1937). 14 Bradenburg vs Ohio 395 US 444 (1969). 15 Apthekar vs Secretary of State 378 US 500. 16 Cramp vs Board of Public Instructions 368 US 278. 17 Kedar Nath Singh vs State of Bihar 1962 AIR 955. 18 Vogt vs Germany (17851/91) (1995).