Criminalisation of passive membership under the UAPA

The running motif of the recent Supreme Court judgment on the UAPA (and POTA and TADA) is that under the guise of sovereignty and integrity of the nation, the Parliament can do anything and pass any law. The judgment is likely to lead to more arrests and denial of bail, and further stigmatise dissidents and their work. It virtually sanctions a police State.

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THE Unlawful Activities (Prevention) Act, 1967 (UAPA) has no place in a civilised society. All its declared objectives of dealing with unlawful activities and terrorism can be dealt with by ordinary criminal law. But instead of steps towards eliminating it, in recent times, one has seen hardening of its draconian features through legislative actions, executive arbitrariness and judicial deference.

Compared to normal penal law, the UAPA has many excessively harsh and repressive provisions. It creates offences which are vaguely defined, takes within its sweep even non-criminal activities, has no provision for anticipatory bail, makes getting bail a Herculean task, allows for redaction of witnesses' names, extends the period of investigation, and shifts the burden of proof onto the accused for certain offences. The law is mainly used to target opponents of the establishment, and to silence its critics and those who work for the marginalised.

Over the decades, the judiciary's response to such draconian laws— whether it is the Armed Forces (Special Powers) Act, 1958, the Terrorist and Disruptive Activities (Prevention) Act (TADA) or the Prevention of Terrorism Act, 2002 (POTA)— has been to give its seal of approval. Of course, even while doing so, they tend to dilute a few provisions and set up mechanisms to marginally protect the accused, but most of these efforts do not yield effective results.

Even with regard to the UAPA, the judiciary has by and large adopted a hands-off approach, allowing those arrested to spend years in jail. Recently, the courts have started releasing a few undertrials on the basis of delayed trials, but that too after many years of incarceration. Added to this, we have judgments like in the case of National Investigation Agency versus Zahoor Ahmed Watali (2019) in which the Supreme Court interpreted the bail provisions so stringently that even those who could have been enlarged on bail are now denied this facility.

Also read: Supreme Court must stop wanton abuse of UAPA

It is in this context that the Supreme Court's judgments in State of Kerala versus Raneef, Arup Bhuyan versus Union of India and Sri Indra Das versus State of Assam delivered in 2011 provided some solace to those arrested under the UAPA or earlier under the TADA. Both these laws made mere membership of a banned organisation a criminal offence. The Supreme Court had held in the judgments that any interpretation of a law has to be in consonance with the fundamental rights of citizens, and in the context of the rights to life, freedom of speech and expression, and freedom to form associations guaranteed under Articles 19 and 21 of the Constitution, mere membership of a banned organisation cannot be enough to criminalise a person. What was required was active membership and overt participation in unlawful activities or terror-related activities.

Referral judgment and overruling of Ranif

Arup Bhuyan and Sri Indra Das were referred to a larger three-judge bench of the Supreme Court in 2014 pursuant to a review petition filed by the Union government (the three 2011 judgments had been delivered by the same two-judge bench of the court). In the course of the hearing of the petition, the Union government made a categorical statement that it was not aggrieved by the judgment in Raneef, which dealt with membership of organisations which were not banned. Accordingly, Raneef was not referred to the larger bench.

This is implicitly recognised by the concurring judgment of Justice Sanjay Karol, delivered as part of the Supreme Court's three-judge bench's verdict to the review petition on March 24. However, the main judgment, authored by Justice M.R. Shah, even overrules Ranif, thereby criminalising membership of even those organisations which are not banned but are still deemed 'illegal' by the government. The coercive power of the executive is widened multi-fold by this overruling.

In any event, how does one decide membership of a banned organisation? An overwhelming majority of organisations which are banned do not keep a membership register. Even those which kept one prior to the ban will stop doing so once the ban is implemented. The only way to determine if a person is a member of a banned organisation is by looking at their activities. If a person is actively involved in the doings of a banned organisation, only then could one say that they are a member. There is no other way of determining membership. Of course, the extent of activity can differ from person to person, but the minimum would be active involvement.

It is not difficult to imagine how this would actually play out. Imagine that an investigating agency arrests you and alleges membership of a banned organisation without anything more. Let us go even further and say that the prosecution actually produces some witness statements (whose names are redacted, as permissible under the UAPA) claiming that you are a member of a banned outfit. Under the new interpretation of the law, this would be enough to keep you in jail for years without bail, because you are unable to produce a non-existent membership register which does not contain your name. This is absurd.

Let us even assume that you somehow produce a membership register minus your name. This will not be considered at the time of bail, because defence documents can only be taken into account at the time of trial.

The recent judgment

Prior to last week's judgment, the prosecution could not merely allege membership and get away with it. It would have to at least prima facie show active participation in some serious activity of the banned organisation.

The decision of the Supreme Court overturns its three earlier decisions on grounds which are highly problematic and do not withstand Constitutional scrutiny. Broadly speaking, it criminalises mere membership of a banned organisation, even if the so-called member was only a passive member in the activities of the banned organisation.

Two of the overruled judgments dealt with offences under the provisions of the repealed TADA, and one of them dealt with the UAPA.

Also read: How special statutes to imprison citizens lead to inconsistent judicial orders

Legal provisions concerning criminalisation of membership

It is important to look at the provisions concerning membership of banned organisations under the TADA and the UAPA.

Section 3(5) of the TADA reads: "Any person who is a member of a terrorist gang or terrorist organisation, which is involved in terrorist acts, shall be punishable with imprisonment for a term which shall not be less than 5 years but which may extend to imprisonment for life and shall also be liable to fine."

The Act does not define 'terrorist organisation' or 'terrorist gang', nor does it deal with banning of organisations. However, the terrorist organisation would possibly mean organisations banned under the UAPA.

The overruled decisions held that mere membership of such an organisation would not be enough and culpability would depend on active participation in violent or terrorist activities.

The TADA lapsed 27 years back, and only a few cases remain pending. The larger significance of this judgment is on its interpretation of the UAPA.

Three provisions of the UAPA deal with separate situations criminalising membership. Organisations can be proscribed either because they are indulging in 'unlawful activities' or because they are 'terrorist organisations'. Terrorist organisations are those listed in the First Schedule to the Act (as amended from time to time). This is a long-term ban which comes into effect the moment the name of an organisation is added to the Schedule. The Schedule includes organisations such as the Communist Party of India (Maoist), Khalistan-related organisations, organisations which are called jihadist organisations, certain insurgent organisations in the Northeast, and some Tamil Liberation organisations, among several others.

Chapter VI of the UAPA deals with terrorist organisations.

Section 38, which is part of Chapter VI, is concerned with membership and reads:

"(1) A person, who associates himself or herself, or professes to be associated, with a terrorist organisation with intention to further its activities, commits an offence relating to membership of a terrorist organisation.

Provided that this sub-section shall not apply where the person charged is able to prove:

(a)   That the organisation was not declared as a terrorist organisation at the time when he became a member or began to profess to be a member; and

(b)   That he has not taken part in the activities of the organisation at any time during its inclusion in the Schedule as a terrorist organisation. 

(2) A person, who commits the offence relating to membership of a terrorist organisation under sub-section (1), shall be punishable with imprisonment for a term not exceeding 10 years, or with fine or with both."

The law itself provides that mere membership is not enough to implicate a person since what is criminalised is membership 'with intention to further its activities'. Thus, the element of mens rea is built in.

The second proscription of membership by the UAPA is under Section 10. This pertains to membership of unlawful associations. These are associations not declared to be terrorist organisations under the Schedule, but which are notified through government resolutions to be unlawful and banned for five years. This is how the Students' Islamic Movement of India (SIMI) and the Popular Front of India (PFI) have been banned.

Also read: After declaring PFI an 'unlawful association', Union Government directs social media platforms to purge PFI-related content

The relevant portion of this Section, which is the focus of the recent judgment, reads:

"Where an association is declared unlawful by a notification issued under Section 3 which has become effective under sub-section (3) of that section:

(a)   A person, who:

(i) Is and continues to be a member of such association… [s]hall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine..."

Section 20 of the UAPA is the third Section dealing with membership, and reads:

"Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in a terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine."

This is virtually identical to Section 3(5) of the TADA. 'Terrorist organisation' here means an organisation which is in the First Schedule of the UAPA. 'Terrorist gang' is defined under Section 2(l) of the UAPA and means any association, other than a terrorist organisation, whether systematic or otherwise, which is concerned with or involved in a terrorist act. There is no prior notification of a terrorist gang and thus, one may be a member of an association which may be suddenly branded as a terrorist gang in a first information report or a chargesheet.

The three overruled judgments

Raneef, the first case, arose out of the chopping of hands of a Kerala professor. Raneef himself was a doctor who gave stitches to one of the assailants. He was charged under the UAPA, alleged to be a member of the PFI and its political wing, the Social Democratic Party of India. Neither of them were banned outfits at that time.

The court was mainly concerned with Section 20 of the UAPA, which deals with membership of terrorist organisations or gangs which participated in terrorist activity.

The court held that merely because an organisation has not been declared as unlawful does not mean that the organisation cannot indulge in unlawful activity; however, every member of such an organisation cannot be automatically held to be guilty merely because the organisation is illegal.

It is important to keep in mind that Raneef did not deal with an organisation which was either declared unlawful or was part of the Schedule of banned organisations. It is in this context that the Supreme Court relied on United States' (US) case law, especially the US Supreme Court judgment in Elfbrandt versus Russel (1966) in which it was observed:

"Those who join an organisation but do not share its unlawful purpose and 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 organisation infringes unnecessarily on protected freedoms. It rests on the doctrine of 'guilt by association' which has no place here."

Raneef was not referred to the larger bench, but still overruled.

The second case was Arup Bhuyan, which was not a case of bail but of conviction. It was a TADA case where the allegation against the appellant Bhuyan was that he was a member of the United Liberation Front of Asom (ULFA) and that as per his confession (held to be weak evidence), he had identified the house of a person who had been killed by ULFA. He was convicted under Section 3(5) of the TADA which criminalises membership. ULFA was banned under the UAPA.

The court relied on certain additional American decisions which provided that mere advocacy of violence was not enough unless it incites imminent lawless action. The Supreme Court held that mere membership of a banned organisation will not make a person a criminal unless they resort to violence or incite people to violence, or create public disorder by violence or incitement to violence.

Sri Indra Das was the third judgment in this line where, again, a person was convicted under the TADA on the basis of mere membership of a banned organisation. The court held that while interpreting such provisions, one cannot only go by literal interpretation, but an interpretation in consonance with fundamental rights also needs to be given. In this context, the court held that be it Section 3(5) of the TADA or Section 10 of the UAPA, they will have to be interpreted in this manner, otherwise they will fall foul of Articles 19 and 21 of the Constitution.

To summarise, two of the three matters were under TADA, and two of the three cases pertained to conviction and not bail. Section 10 was not directly involved in any of the cases, and in one of the cases, there was no organisation which was banned or declared unlawful.

Logical infirmities

Is mere membership sufficient to implicate someone for an offence under the TADA or the POTA, or does the membership have to be active? The Supreme Court overruled the earlier three decisions on various grounds, including some procedural grounds which one need not labour over.

Bereft of the semantics, the Supreme Court now holds that while for Section 38 of the UAPA, mere membership of an organisation is not adequate for criminalising a person, under Section 10 of the UAPA, mere membership would be criminal. It is important to note that Section 20 of the UAPA (which the Supreme Court did not deal with) is worded similarly to Section 3(5) of TADA, and therefore as per the overruling judgment, even under this Section, passive membership would be criminalised.

Also read: Being seen in the company of activist of a banned outfit not a ground to attract UAPA: J&K High Court

Curiously, in its entire analysis, the court does not refer to Section 3(5) of the TADA, but in the conclusion, it brings it within the sweep of overruling. One needs to bear in mind that while Section 10 of the UAPA is not subject to the harsh bail conditions of Section 43D(5) of the UAPA, the draconian conditions do apply to Section 20. Thus, without even discussing this Section and also Section 3(5) of the TADA, both of which do not provide for prior judicial scrutiny of unlawful organisations, mere membership is criminalised without an element of activity or mens rea.

Additionally, the First Schedule to the UAPA, which lists banned terrorist organisations, mentions in many entries that their 'frontal organisations' are also banned. These frontal organisations are not notified anywhere and suddenly make their first appearance only in chargesheets. For instance, in the Bhima Koregaon cases, the chargesheets filed by national investigation agencies implicate persons on the basis of their membership of frontal organisations such as the Committee for Protection of Democratic Rights and the Indian Association of Peoples Lawyers, among others. These organisations were never notified as unlawful or banned. But by the present judgment, mere membership of these organisations will render all members liable to prosecution and punishment.

Under criminal law, mens rea or, to simply put, intention, is a crucial element of a crime. In the absence of proof of mens rea, ordinarily conviction cannot follow. The argument was that mere membership without intention to be part of an overt activity cannot be criminalised. Therefore, what was required was active membership in illegal activities of a banned organisation which would show mens rea.

This argument was negated in a curious way. The court concluded that no organisation can be declared unlawful unless as per Section 3 of the UAPA, it is first referred to a tribunal headed by a high court judge which offers an opportunity to members to show cause why it should not be declared as unlawful, and only after the decision of the tribunal will it be treated as unlawful. So there is a timeframe during which the members can be heard by the tribunal, only after which the association can be declared as unlawful. The members have enough opportunity to oppose, only after which the association can be declared unlawful and if they continue to be members despite this, mens rea has to be assumed.

What the court ignored is that under Section 3(3), there is a proviso which allows the Union government to declare an organisation to be unlawful without there being a prior reference to the tribunal. This is precisely what happens in most cases, and has happened recently in case of the SIMI and PDF bans. The organisations were declared unlawful with immediate effect.

The court further observed that while the right to form association was fundamental, the same could be restricted under Article 19(4) of the Constitution for preserving the integrity and sovereignty of India. Since the UAPA was enacted for this purpose, the literal meaning should be given to criminalisation of membership.

Also read: No material to show active participation of accused in the activities of CPI (Maoist), says SC; Restores NIA court order granting bail to Kerala UAPA accused Thwaha Fasal

The court completely ignores the tests laid down by the Supreme Court itself in a large number of decisions for determining if a restriction is reasonable or not. Thus, the freedom of association can be restricted on grounds of sovereignty and integrity of India "provided the restriction is narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary." There is a principle of proportionality inbuilt here.

Besides, there has to be a proximate connection between the restriction, and the sovereignty and integrity of India. How passive membership passes the muster is not explained. Unless the membership of the organisation per se leads to threatening the integrity or sovereignty of the country, it cannot be criminalised. It is in this context that the earlier decisions had held that unless a member actually aids or participates in violent activity or activity which has the tendency to lead to public disorder, they cannot be criminalised.

Reference was made to the landmark decision of the Supreme Court in Kedar Nath Singh versus State of Bihar (1960) in which the provision concerning the penal offence of sedition was upheld by reading it down and holding that though Section 124A of the Indian Penal Code (IPC), which provides for the offence of sedition, does not say so, it can only be invoked if the speech or writing leads to or has the tendency to lead to breach of public order. Minus this, no matter how provocative a speech may be, it cannot be branded as seditious.

This decision is dismissed on the basis that it pertains to the IPC and not the UAPA. What is lost sight of is that fundamental rights run through all legislation, whether the IPC or the UAPA. The Supreme Court should have noticed its decision in Shreya Singhal versus Union of India (2015) in which it held that speech can be at three levels: discussion, advocacy and incitement, and only when it reaches the level of incitement can it be criminalised.

The argument concerning law being bad due to its vagueness is brushed aside by holding that the law is categorical in the sense that it states that membership is criminalised. Thus, there is no vagueness. But the point about vagueness is that there is no definition of membership, more so in situations where there are no membership registers. Would mere attendance at a meeting amount to membership; would a doctor treating a terrorist amount to membership; would a tailor stitching the clothes of persons belonging to banned organisations amount to membership? If one goes by the track record of the executive, the answer would be yes in all these cases.

Also read: Under UAPA, anything can be an offence based on flimsy evidence

Thus, the running motif of the Supreme Court judgment is that under the guise of sovereignty and integrity of the nation, the Parliament can do anything and pass any law. It virtually sanctions a police State.

The Supreme Court decision is likely to lead to more arrests and denial of bail, and further stigmatise innocent persons, such as activists, whose only offence would have been to differ from the ideology of the establishment. No wonder the Solicitor General of India welcomed the decision in open court by claiming it to be a historic decision which would safeguard the integrity and sovereignty of the country.