Thursday, February 10, 2011

A judgement that is worrisome


(First appeared in The Pioneer on February 9, 2010)

Justices Markandey Katju and Gyan Sudha Mishra have set a curious benchmark for members belonging to proscribed organisations. The learned judges of the Supreme Court of India have ruled that a mere membership of such outfits does not make one a criminal. To attract criminal proceedings, the member must indulge in or incite violence. This is great news for all the back office operators of banned groups, who until now faced action if caught, and bad news for investigating agencies and the central and state governments that are battling with the menace of extremism in various forms and at different levels. What is strange here is not just the verdict but the context in which the Justices pronounced it. Once we understand that, we will be able to better appreciate the needlessness of the ruling.

The case before the two member apex court Bench pertained to an appeal by one Arup Bhuyan who was convicted by a TADA court in March 2007 for being a member of the banned United Liberation Front of Assam. An aggrieved Bhuyan approached the Supreme Court contesting the conviction on the ground that he had confessed to being a member under duress. He claimed innocence saying he had nothing to do with the banned group. It must be remembered here that under Section 15 of the now-lapsed Terrorist and Disruptive Activities (Prevention) Act, 1987, a confession made before the police was admissible evidence in a court, although under other laws such evidence is inadmissible under Section 25 of the Indian Evidence Act, 1872. Also, a member of a banned outfit attracted criminal action under Section 3 (5) of TADA merely for being a member.

Clearly then, the case of the accused rested on the single most important point: that the only concrete piece of evidence against him was the “forced” confessional statement where he implicated himself. The issue before the Justices too was that point alone.

So far so good. The Bench then went ballistic on how confessions before the police cannot be overly relied upon because “the widespread and rampant practice in the police in India is to use third degree methods for extracting confessions”. The Justices helpfully provided an explanation for such conduct: because the police are neither trained nor equipped to scientifically investigate cases they rely upon force to squeeze out confessions from reluctant accused.

They did not stop at that. Calling torture a “terrible thing”, the Bench observed that “when a person is under torture he will confess to almost any crime”. Therefore, it concluded, the courts should be “hesitant before they accept such extra-judicial confessional statements”.

All of this is true, and there is no dispute with the Justices on the points raised, even if one bears in mind that Bhuyan’s confessional statement – in whatever manner it was extracted – was admissible evidence since he was being tried under TADA. In the end, the Bench set aside the conviction and acquitted the accused not just because it held the confessional statement with suspicion, but also because the prosecution (state of Assam) could not provide corroborative evidence of guilt. And that is where the matter should have ended.

It did not. The Justices, now in full flow, decided to get hypothetical and use the power of assumption to pronounce a ruling that can have an implication beyond the context in which it was made. They had let off Bhuyan because his membership of the banned ULFA could not be established. But what if he had been a member, the court wondered, rather unnecessarily. “Even assuming he was a member of ULFA it has not been proved that he was an active member and not a mere passive member”, the Justices stated. The court had cleverly slipped in an aspect that was extraneous – and even irrelevant – to the case at hand: the active and the passive, something which no law of the land distinguishes between.

Going by the pronouncements of the Bench, an active member of a banned organisation is one who directly resorts to violence or incites violence. Every other member is passive and cannot be tried for criminal activity. This nuanced understanding flies in the face of existing provisions of the law. Take, for instance, Section 10 of the Unlawful Activities (Prevention) Act, 1967, that is currently in force and deals with penalty for being a member of an unlawful association. It says, “Whoever is and continues to be a member of an association declared unlawful by a notification issued under Section 3 which has become effective under sub-Section (3) of that Section, or takes part in meetings of any such unlawful association, or contributes to, or receives or solicits any contribution for the purpose of any such unlawful association, or in any way assists the operations of any such unlawful association, shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine.”

The provision clearly covers all members of an outfit declared unlawful by the central government through a notification, without categorizing such members as ‘active’ or ‘passive’.

Allowing so-called passive members to get away, the Justices have sought to dismiss the concept of ‘guilt by association’ by citing the example of a 1966 US Supreme Court decision. While we shall not go into the validity of the comparison, it must be emphasized here that provisions of UAPA rely on this doctrine, whether it is Section 10 referred to earlier or Section 7 that prohibits the use of funds of an unlawful association. The latter reads, “ Where an association has been declared unlawful…any person has custody of any monies, securities or credit which are being used or are intended to be used for the purpose of the unlawful association, the central government may… prohibit such person from paying, delivering, transferring or otherwise dealing in any manner” with such financial instruments.

Incidentally, in the matter of Section 7 too, the member does not directly indulge in violence or incite violence. Going by the apex court’s recent ruling, would a member involved in financial transactions of a banned outfit, get away?

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