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Guilty by Association?

The recent judgment of the Supreme Court in the case of Arup Bhuyan vs State of Assam has rejected the doctrine of "guilty by association". It argues that members of a banned organisation cannot be treated as criminals unless they actually resort to violence, incite people to violence, or create public disorder or disturbance of public peace by violence. A summary of national and international case laws to support this judgment is presented here. The government is off the mark in wanting to have the judgment reviewed by a larger bench of the Court.

COMMENTARY

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huge body of national and international

Guilty by Association?

case laws to support the original judgment, which is adequately posed to address any real national security threats. SAHRDC Justices Markandey Katju and Gyan

The recent judgment of the Supreme Court in the case of

Arup Bhuyan vs State of Assam

has rejected the doctrine of “guilty by association”. It argues that members of a banned organisation cannot be treated as criminals unless they actually resort to violence, incite people to violence, or create public disorder or disturbance of public peace by violence. A summary of national and international case laws to support this judgment is presented here. The government is off the mark in wanting to have the judgment reviewed by a larger bench of the Court.

SAHRDC is the South Asia Human Rights Documentation Centre, New Delhi.

Economic & Political Weekly

EPW
march 26, 2011

T
he Union Government has reportedly decided to challenge the decision by the Supreme Court in Arup Bhuyan vs State of Assam (Criminal Appeal No (s) 889 of 2007) on the basis that the police cannot wait for members of a banned organisation to commit a terror act before arresting them. The court’s ruling quite correctly states that members of a banned organisation cannot be treated as criminals unless they actually resort to violence, incite people to violence, or create public disorder or disturbance of public peace by violence.1 The doctrine of “guilty by association” was rejected. It was argued that Section 3 (5) of the Terrorist and Disruptive Activities (Prevention) Act (TADA) cannot be read literally because if it were, it would violate Articles 19 and 21 of the Constitution. TADA has to be read in conjunction with the fundamental rights, which are guaranteed by the Indian Constitution. This was outlined in Sri Indra Das vs State of Assam2 as well as in Kedar Nath Singh vs State of Bihar.3

The central government is said to be moving a larger bench of the apex court to reverse the order of the two-judge bench. This is clearly vexatious when there is a

vol xlvI no 13

S udha Misra already refer to several cases in their judgment. These along with other key judgments are summarised here.

In State of Kerala vs Raneef,4 the Supreme Court has agreed with the decision made of the United States (US) Supreme Court in Elfbrandt vs Russel.5 It was established that joining an organisation but not participating in its unlawful activities cannot pose a threat and cannot constitute a crime. If it did, it would infringe the right to freedom of association guaranteed by the Constitution. Further, in Clarence Bradenburd vs State of Ohio6 the US Supreme Court went as far as saying that even “advocacy or teaching the duty, necessity, or propriety” of violence as a means of accomplishing political or industrial reform, or publishing or circulating such advocacy or displaying any book or paper containing such advocacy, or justifying the commission of violent acts with an intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism, or to voluntarily assemble with a group formed “to teach or advocate the doctrines of criminal syndicalism” is not illegal per se. It is only if these acts incite an imminent lawless action that it would become illegal.

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).

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march 26, 2011 vol xlvI no 13

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