In the early 2000s, the film Guilt by Association followed Susan Walker, a mother of two, who discovers her partner’s drug dealing habits and asks him to leave. Despite being innocent, Walker is wrongly imprisoned for two decades as a co-conspirator. The film portrays her hardships in adjusting to prison life, her quest for justice, and her efforts to reunite with her children. I wish the Supreme Court (SC) judges who recently upheld the doctrine of guilt by association watched this movie to understand the myriad issues associated with the principle of punishing someone who may not have done something wrong, but is associated with people who did.
The 2011 Arup Bhuyan case — the verdict was overturned last week — arose from the provisions of the Terrorist and Disruptive Activities (Prevention) Act (TADA) 1987 where being a member of an unlawful association was considered a crime. In 2011, the top court held that “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.”
In the same year, in State of Kerala vs Raneef — after quoting several American decisions wherein it was held that those who join an organisation, but do not share its unlawful purpose, pose no threat — the SC said, “We respectfully agree with the above decisions of the US Supreme Court, and are of the opinion that they apply in our country too. We are living in a democracy, and the above observations apply to all democracies.”
In both cases, the accused were given relief by the top court. The government filed review petitions that argued that Unlawful Activities Prevention Act (UAPA) provisions were different from United States (US) statutes, and thereby, membership of an unlawful association is a specific offence that can’t be overlooked by the courts. A three-judge bench of the top court agreed.
Their March 24 order said that the specific provision under UAPA was not considered in 2011, and made three arguments. One, it said that as the central government was not a party to the earlier case, no violation of any provision could be considered without it. Two, it said that the prescription of penalty for merely being a member of an unlawful association is a reasonable restriction under Section 19(2) of the Constitution because the association is declared unlawful under Section 3 of UAPA, and the decision is judicially reviewed by a tribunal headed by a retired judge of a high court, making it a valid law. And three, it found that the decisions of the US SC will have no binding value and could only have a decisive influence over Indian decisions.
But this sudden reversal of well-laid decisions — while taking a hyper-technical view divorced from ground reality and emphasising the procedure prescribed in UAPA as the safeguard — not only took the law five decades back, but also, in the name of distinguishing American decisions, virtually extinguished them.
The reasoning that the Union of India was not a party before the 2011 decisions is factually correct, but overlooks the fact that in every prosecution in this country, the State will always be a party. It must also be known that while deciding the question of bail or any final order arising out of the various anti-terrorist laws, the court will always render a finding as to whether the accused was prima facie guilty, or not, of the charges laid out against him. Therefore, it is the prerogative of the court to interpret the provision of law and, if necessary, read down those provisions to bring it in line with constitutional norms. The SC order not only reverses these well-laid norms in safeguarding the interest of the citizens, but also lays down dangerous portents for the future.
Though TADA was repealed long ago — due to the sunset clause under which even today many trials are continuing — once a first information report (FIR) is registered under the said Act, an accused standing trial for over three decades can now be punished under the new interpretation, while those who were members of banned outfits under the repealed law, but were not charge-sheeted, can escape unscathed. This dichotomy was overlooked by the bench in reversing the earlier view.
Some experts have argued that the earlier judgments were passed by a two-judge bench, and the current one must hold the field as it was delivered by a three-judge bench. The number game (a term used by justice Krishna Iyer) has dangerous implications because one cannot overturn well-laid norms merely because of strength in numbers. The criminal law must be laid down on the firmest grounds, and must also pass the muster of international human rights standards.
The situation reminds me of John Milton’s famous quote, “They also serve who only stand and wait”. If such Biblical stands have to be the way of life, then we are reminded of Fyodor Dostoevsky’s novel, Crime and Punishment, wherein it is said that a punishment can be “when the fear of conscience suffers while acknowledging his own sin”.
It is high time that a plea to review this order is filed before the SC, and that the wisdom of a larger bench considers restoring not only the previous decisions, but also the due process of law. Anything less will threaten reviving the ghost of the 1950 AK Gopalan case, where the top court denied individual liberties on the basis of the procedure established by law, and it took nearly three decades for the court to re-establish the primacy of due process.
Justice K Chandru is a former judge, Madras high court
The views expressed are personal
