The Arup Bhuyan Verdict – A Departure?

Rahul Choudhary

The Supreme Court’s verdict of February 03 in Arup Bhuyan vs State of Assam is significant at the time when the Indian state seems to be on the prowl looking for victims to assert its exceptional sovereignty. On the one hand, it rekindles the ‘liberal’ hope which wanes every time Sen-s are put behind the bars. In fact, by raising this hope, such judicial correctives help, in an inverted manner, in consensual containment of protests that might add up to form a threat to the state’s sovereignty. But on the other hand, they give an opportunity to consolidate critical voices within, strengthening the struggle for showing the limits of the present system and providing a relief to the struggling masses.

In this particular case in review, the appellant disputes the allegation of his association with ULFA, which was made on the basis of his confession before the police, in which he identified the house of a deceased. Such non-judicial confessions are generally not valid because of the involvement of tortures etc, but in TADA cases they are considered admissible. Going with the convention of rejecting such confessional statements before the police, the court has questioned their admissibility even in these ‘exceptional’ cases. It says, “in the absence of corroborative material, the courts must be hesitant before they accept such extra-judicial confessional statements.”

However, the major portion of the verdict is directed against the TADA Court’s conviction of the appellant under Section 3(5) of the TADA which makes mere membership of a banned organisation criminal.

Here, Justices Katju and Misra have simply extended their own arguments presented in another recent case – State of Kerala Vs Raneef, 2011 (1) SCALE 8. The accused was asking for bail in this case where he was booked for giving medical treatment to one of the assailants. The accused person’s association with an Islamic organisation was taken as incriminating evidence. The judges opined that as that particular organisation was not a terrorist organisation, the accused could not be penalised for his membership. However, what makes this verdict consequential for the Feb 3 judgement is its clear opinion against the doctrine of “guilty by association”, which has become the cornerstone of recent criminal legislations and anti-terrorist measures. The judges in the previous verdict concurred with three famous American judgements:

1) Scales vs. United States 367 U.S. 203 where Mr. Justice Harlan of the U.S. Supreme Court observed:

“The clause does not make criminal all association with an organization which has been shown to engage in illegal activity. A person may be foolish, deluded, or perhaps mere optimistic, but he is not by this statute made a criminal. There must be clear proof that the defendant specifically intends to accomplish the aims of the organization by resort to violence.”

2) In Elfbrandt vs. Russell 384 US 17-19 (1966) Justice Douglas of the U.S. Supreme Court observed:

“Those who join an organization but do not share its unlawful purpose and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. A law which applies to membership without the `specific intent’ to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of `guilt by association’ which has no place here.”

3) In Joint Anti-Fascist Refugee Committee vs. McGrath 341 US 123 at 174 (1951) Mr. Justice Douglas of the U.S. Supreme Court observed :

“In days of great tension when feelings run high, it is a temptation to take shortcuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within.”

The judges thus summarises their views on the doctrine of ‘guilty by association’ that they presented in State of Kerala Vs. Raneef:

“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 resort to violence (See : also the Constitution Bench judgment of this Court in Kedar Nath Vs. State of Bihar, AIR 1962 SCC 955 para 26).

In the present Arup Bhuyan judgement, the judges have continued exploring the international cases. The following para is crucial in this regard:

In Clarence Brandenburg Vs. State of Ohio, 395 U.S. 444 (1969) the U.S. Supreme Court went further and held that mere “advocacy or teaching the duty, necessity, or propriety” of violence as a means of accomplishing political or industrial reform, or publishing or circulating or displaying any book or paper containing such advocacy, or justifying the commission of violent acts with 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 per se illegal. It will become illegal only if it incites to imminent lawless action. (emphasis mine)

The judges conclude:

“We respectfully agree with the above decisions, and are of the opinion that they apply to India too, as our fundamental rights are similar to the Bill of Rights in the U.S. Constitution. In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in the light of our observations made above. 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 importance of these two judgements lies in the fact that through them the Supreme Court has initiated a significant departure from the tenor set by the two earlier landmark cases which were fully in consonance with the policing needs of the neoliberal policy makers – Kartar Singh’s case, 1994(3) SCC569 (which upheld the TADA Act) and PUCL Vs Union of India, 2005 SCC(Crl)1905 (which upheld the POTA provisions).

In his book published in 2008, one of the doyens of the Indian judicial system, Justice Chinnappa Reddy wrote:

“The Fundamental Rights guaranteed by the Constitution under Articles 14, 21, and 22 are undoubtedly negated by some of the provisions of the new POTA as well as the provisions of TADA which are capable of much mischief. It is to be hoped that very soon the Supreme Court will take a second view at any new enactment containing similar provisions.”

Considering their views in these two recent cases, Justices Katju and Misra have definitely taken a second view at the old enactments and case laws.