Freedom of speech and expression is an essential facet of democracy. Freedom of association is, likewise, a form of freedom of expression, recognised by Article 20 of the Universal Declaration of Human Rights and Article 22 of the International Convention on Civil and Political Rights.This right is also expressly recognised by the Indian Constitution read with appropriate constraints.
Organisations/associations can however be either licit or illicit. There is no dispute as far as membership of a licit organisations is concerned. Even anti-governmental organisations which are non-violent in nature are inherently crucial for democracies. However, membership of an unlawful association is a matter of legal and political dispute. Terrorist organisations, by their very nature are “harder to deter” when compared with other organisations, which consequently bespeaks the need for appropriate legislation to curb their spread. That was the reason why anti-terrorism legislations such as the Terrorist and Disruptive Activities (Prevention) Act, 1987 [hereinafter “TADA”], the Prevention of Terrorism Act, 2002 [hereinafter “POTA”], or the Unlawful Activities (Prevention) Act, 1967 [hereinafter “UAPA”], were introduced.
Membership in a terrorist group has been considered penal because violent acts are not the only tactic of terrorist organisations. Many such organisations now have two wings. While one wing engages in illegal activities, the other participates in social and political activities to increase its reach and support base, thus blurring the line between lawful and unlawful purposes. This raises the question: Can members of banned organisations, who engage in social and political activities of banned organisations, be charged with a criminal offence?
Three Supreme Court judgments delivered in 2011, ruled that mere passive membership of an organisation cannot be criminalised except in cases wherein the member intends to contribute to the organisation’s unlawful intent. These were:
- State of Kerala Raneef [hereinafter “Raneef”]
- Arup Bhuyan v. State of Assam [hereinafter “Arup Bhuyan”]
- Indra Das v. State of Assam [hereinafter “Indra Das”]
All three judgments were delivered by the division bench of Markandey Katju and Gyan Sudha Mishra, JJ.
The Raneef Judgement. Dr. Raneef, head of the medical team of Popular Front of India, an organisation engaged in unlawful activities was prosecuted under the Indian Penal Code, 1860 [hereinafter “IPC”]; the Explosive Substances Act, 1908; and UAPA. The bench examined the question “whether all members of an organisation can be automatically held to be guilty, once an organisation is declared unlawful,” and ruled that mere passive membership of a banned organisation cannot be criminalised. Markandey Katju, J., relied on the precedents of the Supreme Court of United States of America like Scales v. United States and Elfbrandt v. Russell. Unless the accused actively participates in the functioning of the organisation with the intention to further the illegal aims of organisation, making mere membership as punishable will amount to “guilt by association” which has no place in the USA as well as in India.
The Arup Bhuyan Judgement. Here, the accused was convicted under TADA which made membership of a banned organisation criminal. The bench made a reference to the constitution bench judgment of Kedar Nath Singh and held that “mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incites people to violence or does an act intended to create disorder or disturbance of public peace by resorting to violence.” The court also cited the decision of Clarence Brandenburg v. State of Ohio which held that “a group formed to teach or advocate the doctrines of criminal syndicalism” is not per se illegal. The court thus concluded that it will become unlawful only if it provokes to imminent lawless action. The court also stated that the judicial pronouncements of the USA “apply to India too, as our fundamental rights are similar to the Bill of Rights in the U.S. Constitution”.
The Indra Das Judgement. In this case, Katju J. discussed the idea of active and passive membership in a very detailed manner. The substantial part of the judgment is as follows:
“In Arup Bhuyan case we have stated that mere membership of a banned organisation cannot incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence, or does an act intended to create disorder or disturbance of public peace by resort to imminent violence. 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 above mentioned. Thus, even if he was a member of ULFA it has not been proved that he was an active member and not merely passive member.”
Katju J. further took backing of many cases decided by the Supreme Court of USA in 1960s,wherein it was observed that a seditious law ought to interfere only if there is an “imminent danger” to the country and held:
“Section 3(5) of TADA or Section 10 of the UAPA, 1967 which on their plain language make mere membership of a banned organisation criminal have to be read down and we have to depart from the literal rule of interpretation in such cases, otherwise these provisions will become unconstitutional as violative of Articles 19 and 21 of the Constitution…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.”
Issues Raised by the Three Judgements
All the three cases were decided by the same bench in the same year (2011) and their findings are also similar, with some variations. Though the cases concern the constitutionality of a central enactment, no notice was issued to the Union of India, which should have been made a necessary party, to enable the Court to take note of each aspect of the controversy while deciding validity of laws that directly impact national security and sovereignty. A review petition has been filed against the decision of the division bench in Arup Bhuyan case which is pending before a higher bench.
The power of judicial review must be exercised in an even more cautious manner when the court is developing a law and expanding a jurisprudence. In light of the above the following issues need serious investigation:
- Whether, by reading down the provision of a law enacted by parliament without even hearing the Union of India is violation of basic principle of “fair hearing”.
- Whether the distinction made by the division bench in active and passive membership of an unlawful organisation holds good in law.
- Whether the concept of free speech in USA is same as that in India. Did the division bench take note of various higher bench judgments regarding applicability of the precedents of the USA in India?
- While deciding all three cases, the Supreme Court relied on many U.S. Supreme Court decisions but did not discuss Holder v. Humanitarian Law Project decided by the U.S. Supreme Court in 2010, which is on “material support to foreign terrorist organisation”. Whether this judgment is relevant in Indian context.
- Whether the judgments by division bench in three cases operate per incuriam.
- Why did the court not consider the drastic changes in security situation in the world and in India before relying on precedents from the 1960s?
Distinction between Active and Passive Membership: Is it in Conformity with Law
An unlawful assembly is defined in Section 141 of IPC as an assembly of five or more people with a common intent to disrupt peace, while Section 149 of IPC requires presence of a commonality of object coupled with physical presence at the site to be considered penal. This section states:“If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”
In addition, Section 34 of IPC provides for constructive liability in cases wherein the offenders have a common intention to act together. It is essential for the application of this provision that each and every member acts in harmony with each other and there is presence of an element of active participation from all. A collective reading of these provisions suggests that for holding multiple persons liable constructively, a sense of active involvement is needed, either in the form of active participation or in the form of physical presence. The strong opposition that jurists have raised against legislative innovations that allow criminal indictment or prohibit public employment of people found to have been members of organisations whose goals are considered subversive or to have associated with persons with such purposes, demonstrates the traditional importance that jurists have placed on the idea that guilt is personal.
TADA, UAPA and POTA were however enacted to cover those situations which could not be tackled by the already existing set of provisions in the IPC. Parliament enacted these laws, precisely to deal with offences relating to terrorism and social disruptions, wherein the elements of active participation or physical indulgence would play no role in determination of culpability. These laws, thus, ought to be interpreted in a strict sense unless a manifestly absurd interpretation emanates out of it.
These laws were enacted as statutes of strict liability where absence of presence of mens rea would have little role to play. Thus, the imputation of requirement of active membership is a direct attempt to infuse the requirement of mens rea or knowledge on the part of the accused while being a member of the organisation and this consequence is in direct conflict with the above-stated purpose. For this, reliance can be assigned on judgment of the Apex court in State of Maharashtra v. Mayer Hans George, which stated…“The nature of mens rea, that will be implied in a statute creating an offence depends upon the object of the Act and the provisions thereof.”
The crucial factor which acts as the dividing line between unlawful assemblies and proscribed organisations is that the latter requires formal constitution of an organisation with various stated and unstated objectives. The members complement each other through their acts and omissions to further the common objectives of the organisation. Such organisations become proscribed when their stated objectives exceed the permissible limits of law and it requires an express declaration by the appropriate authority to declare it as proscribed. In unlawful assembly, no complementary conduct is required, only commonality of object is enough. It is hence evident that the division bench judgment has embarked upon the application of purposive interpretation of the statute, thereby, exceeding the scope of interpretation attributed to a court of justice.
Free Speech: Misplaced Comparison between India and the US
The Court in all the three judgments has relied heavily on the cases related to free speech decided by the Supreme Court of USA. Katju J., has stated that the Fundamental Rights in Indian Constitution are same as Bill of Rights in USA. There are however, fundamental differences between the two, on at least three counts.
Firstly, free speech under First Amendment in USA has no reasonable restrictions by means of a law whereas in India, freedom of speech and expression is subject to reasonable restrictions. The term ‘reasonable restriction’ was introduced into the Constitution, to allow the courts to keep a check on any legislation providing for arbitrary restrictions. The interest of national security was one of the justifiable grounds considered for restricting free speech in the Constituent Assembly debates, but this point appears to have been erroneously overlooked by the division bench, which has given free speech preference over national security concerns.
Secondly, in India, these set of rights are available only to citizens unlike in the USA where, it is available to both citizens as well as non-citizens. Thirdly, in India, article 19 can be suspended during emergency unlike in USA where there is no such provision.
While the principles of law as laid down by the Supreme Court of USA can be imported in India, it is unwise to import every doctrine as the circumstances and societal structure in the USA and India are different. In the Babulal Parate v. State of Maharashtra, case [hereinafter “Babulal”], the Supreme Court stated:
“It seems to us, however, that the American doctrine cannot be imported under our Constitution because the fundamental rights guaranteed under Article 19(1) of the Constitution are not absolute rights but, as pointed out in State of Madras v. V.G. Row [1952 SCR 597] are subject to the restrictions placed in the subsequent clauses of Article 19. There is nothing in the American Constitution corresponding to clauses (2) to (6) of Article 19 of our Constitution.”
The division bench comprising of Katju J., was bound by observations made in Babulal and other judgments delivered by larger benches which had similar observations. It has thus erroneously overlooked all these considerations and precedents of Constitution Bench while relying on decisions of the Supreme Court of USA.
On the contrary, a judgement of the Supreme Court of the USA, which should have been considered is the “Holder v. Humanitarian Law Project” [hereinafter “Holder”], which is in conflict with the various judgments cited by the division bench to interpret the issues related to free speech in India. Here, on the issue whether the provisions of Material Support Law are in contravention of free speech guaranteed by First Amendment of the Constitution of the USA, the Court observed that material support meant to “promote peaceable, lawful conduct,” but not to further terrorism and that the government’s interest in combating terrorism is an urgent objective of the highest order. As terrorist groups systematically conceal their activities behind charitable, social and political fronts, such contributions and support further their terrorism.
In the present-day Indian context, there is a need to have stringent laws in place which can prove effective in curbing terrorist activities and ward off any impending dangers. The judgments delivered by the division bench in Arup Bhuyan, Raneef and Indira Das cases respectively have heavily relied on jurisprudence laid down by the US Supreme Court during the 1960s, wherein free speech was given precedence over other concerns. The Holder judgement delivered in 2010, however, evaluated according to the prevailing circumstances.
National security is of paramount importance and in case free speech acts as an aid to any terrorist activities – violent or non-violent, it is liable to be restricted. Terrorist organisations often peddle their agenda in the garb of social organisations and pose a threat to life and property. The law has to be such as is able to ward off any such threat and also penalise persons involved. For this, the law needs to adapt to the need of the hour.
Per Incuriam Judgements
The law of precedent, as followed in India, entails that the prior judgments passed by larger composition of the court ought to be accepted as settled law by subsequent courts unless expressly assailed by a larger bench on proper reference. The issues of law involved in the three judgments have been subject matter of consideration before the court previously in the case of Kartar Singh v.State of Punjab. While speaking on the constitutional validity of TADA, a five-judge constitution bench embarked upon the deduction of the object of this legislation and observed as follows:
“…the meaningful purpose and object of the legislation, the gravity of terrorism unleashed by the terrorists and disruptionist endangering not only the sovereignty and integrity of the country but also the normal life of the citizens, and the reluctance of even the victims as well as the public in coming forward, at the risk of their life, to give evidence — hold that the impugned section cannot be said to be suffering from any vice of unconstitutionality. In fact, if the exigencies of certain situations warrant such a legislation then it is constitutionally permissible as ruled in a number of decisions of this Court, provided none of the fundamental rights under Chapter III of the Constitution is infringed.”(Emphasis supplied)
The above observation makes it clear that the act of bifurcation of membership and division of liability on the basis of active or passive membership renders the very object as negated. It is thus apparent that TADA covers two categories of persons: One, those persons involved in terrorist and disruptive activities and two, those persons associated with terrorist and disruptive activities. The former category squarely covers active members and the latter category covers passive members. A necessary corollary of this observation is that the statute aims to target both active and passive members.
After upholding the constitutional validity of TADA in Kartar Singh, the Supreme Court in PUCL v. Union of India, [hereinafter “PUCL”] declared that the provisions of POTA are constitutionally valid. In the light of these clear observations, the interpretation adopted by the division bench that the purposive interpretation is required to save the membership provision from being declared unconstitutional is in utter contrast with the settled law pertaining to this question. Therefore, the authors are of the view that the judgments are per incuriam.
India, and indeed the world, is under serious challenge from terrorist organisations. With respect to counter terrorism legislation such as TADA and POTA, the Apex Court has often interpreted these enactments to achieve a balance between civil liberties of the accused, human rights of the victims and the compelling interest of the state.
The three judgements delivered by the Supreme Court in 2011 have however placed individual liberty over the security concerns of the state. Here, the Supreme Court read down provisions of central enactments passed through the Parliament of India without giving a chance of hearing to the Union of India, even though the enactments in question were Central Acts. In the judgements delivered in all the three cases, equated the membership of a criminal organisation with that of a terrorist organisation. Such an interpretation defeats the very purpose for which laws such as TADA, UAPA and POTA were enacted. While drawing upon precedents from the USA, the Three Judgements took into account the judgements delivered in the US in 1960s, when no terrorism threat was faced by the US, but overlooked the US judgements of a later date, when terrorism was a threat and in which the judgements gave precedence to national security, as in cases from Schneck v. United States to Holder.
While the decision of Arup Bhuyan is under review, it is in the interest of national security, that all members of a banned terrorist organisation, who engage in terror activities or who engage in social and political activities of banned organisations, must be charged with a criminal offence. The burden of proof must rest on those who have been so charged.
Author Brief Bios:
*Bhanu Partap Singh Sambyal is an LL.M. (Constitutional Law) from the Indian Law Institute, New Delhi.
*Vijay K. Tyagi is an Academic Tutor and TRIP Fellow at O.P. Jindal Global University, Sonipat and an ex-LAMP Fellow at PRS Legislative Research.
The authors are thankful to Prof. (Dr.) Anurag Deep, Professor, Indian Law Institute, New Delhi for his inputs and guidance.
 G.A. Res. 217A (III) (Dec. 10, 1948).
 G.A. Res. 2200A (XXI) (Dec. 16, 1966).
 India Const. art. 19(1)(c) and art. 19(4)
 Liat Levanon, Criminal Prohibitions on Membership in Terrorist Organizations, 15(2) New York Criminal Law Review 233 (2012).
 Terrorist and Disruptive Activities (Prevention) Act, 1987, No. 28 of 1987, § 3(5) [hereinafter “TADA”].
 Prevention of Terrorism Act, 2002, No. 15 of 2002, § 3 [hereinafter POTA].
 Unlawful Activities (Prevention) Act, 1967, No. 37 of 1967, § 10; § 20; § 38 [hereinafter “UAPA”].
 Walter Laquer, Postmodern Terrorism: New Rules for an Old Game, Foreign Affairs, Sept./Oct. 1996, https://www.foreignaffairs.com/articles/1996-09-01/postmodern-terrorism-new-rules-old-game.
 State of Kerala v. Raneef, (2011) 1 SCC 784 (India) (Division Bench decision).
 Arup Bhuyan v. State of Assam, (2011) 3 SCC 377 (India) (Division Bench decision) [hereinafter “Arup Bhuyan”].
 Indra Das v. State of Assam, (2011) 3 SCC 380 (India) (Division Bench decision).
 TADA, supra note 5, § 3(5) – Any person who is a member of a terrorists gang or a terrorist organization, which is involved in terrorist acts, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.
 Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 (Constitution Bench decision).
 Arup Bhuyan, supra note 10, ¶ 9.
 Arup Bhuyan, supra note 10, ¶ 9.
 Communist Party v. Subversive Activities Control Board, 67 U.S. 1 (1961), Keyishan v. Board of Regents of the University the State of New York, 385 U.S. 589, 606 (1967), Abraham v. United States, 250 U.S. 616 (1919).
 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) [hereinafter “Holder”].
 John Lord O’Brian, Loyalty Tests and Guilt by Association, 61 Harvard Law Review 592 (1948).
 State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722, ¶ 18 (India) (Full Bench decision).
 India Const. art. 19(1)(a) and art. 19(2)
 India Const. art. 352; art. 358.
 Babulal Parate v. State of Maharashtra, AIR 1961 SC 884 (India) (Constitutional Bench decision).
 S. Rangarajan v. P. Jagjivan Ram, 1989 SCR (2) 204 (India) (Full Bench decision) [“… The decisions bearing on the First Amendment are, therefore, not useful to us except the broad principles and the purpose of the guarantee.”].
 Holder, supra note 17, at 25.
 India Const. art. 141 – Law declared by Supreme Court to be binding on all courts.
 Kartar Singh v. State of Punjab, (1994) 3 SCC 569 (India) (Constitutional Bench decision) [hereinafter “Kartar Singh”].
 Id., ¶ 253.
 Peoples’ Union for Civil Liberties v. Union of India, (2004) 9 SCC 580 (India) (Division Bench decision).
 Anurag Deep et al., Human Rights: Contemporary Issues, 394-412 (V.K. Ahuja ed. 2019).
 Schneck v. United States, 249 U.S. 47 (1919).