Context

• A three-judge bench of the Supreme Court ruled recently that mere membership of a banned association is sufficient to constitute an offence under the Unlawful Activities (Prevention) Act (UAPA), 1967.
• The bench has overruled its 2011 verdict which held that "mere membership " cannot attract imprisonment, and had struck down section 10(a)(i) of the UAPA, thus restoring the doctrine of “guilt by association” in criminal jurisprudence in India.
• The article denounces this SC verdict as a severe blow to principles of fundamental justice by doing away with the distinction between active and passive membership of proscribed organizations, which has been the basis of court rulings since 2011.

What is the UAPA?

• This Anti-terror law enacted in 1967 lays down the definitions and rules for designating an organisation as an "unlawful association" if it is engaged in certain types of activities directed against the integrity and sovereignty of India.
• It applies to citizens of India who are abroad, persons in service of the Indian government, and persons on ships and aircraft registered in India.
• Under the Act, the central government may designate an organisation as a terrorist organisation if it commits or participates in acts of terrorism, prepares for terrorism, promotes terrorism and is otherwise involved in terrorism.
• The 2019 Amendment gave the Home Ministry the power to designate individuals as terrorists.

The SC’s Verdict on UAPA

• The Court held (in the recent case) that a person can be “guilty of membership” even without any further overt act or mens rea (criminal intent) on one’s part.
  • Thus, it has now held that a person continuing to hold ‘mere (not active) membership’ of an organisation declared "unlawful" would be liable for punishment.
• In doing so, the Court has overruled three older cases (Arup Bhuyan vs State of Assam, Sri Indra Das vs State of Assam and State of Kerala vs Raneef) which read the section with a view to distinguish between active and passive/mere members (based on US SC judgements).
  • These judgements had put a narrow construction on Section 10(a)(i) of UAPA, which punishes membership of unlawful organisations with imprisonment for a term which may extend to two years.
  • In case of a terrorist organisation, mere membership is not sufficient but there has to be an act with intention to further the activities of the terrorist organisations.
• Contrary to the earlier verdict, the SC bench now held that the provision under section 10(a)(i) is "absolutely in consonance" with the objective of the UAPA itself and the reasonable restrictions under Article 19 (4) of the Constitution.
  • Article 19(4) mandates that the citizens’ right to form unions or associations are subject to reasonable restrictions (imposed by state by law) in the interests of the sovereignty and integrity of India or public order or morality.

Arguments in Favour of the Recent SC Verdict

• The government argued that the declaration of an organisation as unlawful is a product of a robust adversarial process.
• Also, an ample opportunity is given to the organisation to appeal to judiciary in order to justify its aims, objectives and activities being legal and not unlawful within the constitutional setup.
• It also gave justification that the court ought not to have relied upon the US SC judgments since the US law is in contradistinction to the scenario in question in India.
  • The Indian constitutional law does not accept Freedom of Speech and expression as an absolute right, but allows for "reasonable restrictions."
  • Thus, the decisions of American courts can only be guiding lights and not a reference.

Arguments Against the SC UAPA Verdict

• The SC has set aside the reading down of both Section 10(a)(i) of the UAPA, and Section 3(5) of the the Terrorist and Disruptive Activities (Prevention) Act (TADA) 1987, which are two different things, as UAPA penalises ‘terrorist acts’ and ‘unlawful acts’ differently.
• The judgment is fraught with the risk of making it legal for agencies to act lawlessly while claiming to fight terrorism and preserve the State’s security.
• Unless there is a specific intent to enhance the material abilities of a terrorist or unlawful organisation, permitting the conviction of a person as a member is abhorrent to the rule of law.
• By abolishing the distinction between active and passive membership, the Court has obliterated the requirement of mens rea (criminal intent) – making the ruling legally incoherent, undermining liberal democracy.
• There is a mismatch between the verdict’s reasoning (which focuses on the membership of unlawful association) and its conclusions.
  • There is uncertainty regarding how any agency or court will determine who is and continues to be a member of such an association even after the entity was banned.
  • Thus, in most circumstances, membership must be inferred.
• The Bombay HC, in a case, ruled that Section 20 of the UAPA, making membership of a terrorist organisation punishable with imprisonment for a term which may extend to imprisonment for life, is widely worded.
  • In a case, as many as 15 people, all young tribal women and men, were charged as members of the CPI (Maoist) - a terrorist organisation, for possessing Maoist propaganda literature like books, articles and pamphlets.

Conclusion

• The states worldwide are grappling with defining terrorism/terrorist acts/terrorist groups with some precision to protect against the improper stigmatisation of those inappropriately labelled as “terrorists”, and to curtail the abuse of counterterrorism powers.
• Mislabelling dilutes efforts to combat actual terrorism. It undermines democratic values and institutions and the gravitas of the security threat terror groups pose.
• Thus, a balance should be sought to maintain the sovereignty and integrity of the nation and upholding the rights and the securing the freedom of individuals.