India Supreme Court

INDIA — The Indian Supreme Court has restored the doctrine of “guilt by association” in criminal jurisprudence in India, after it overruled a series of its 2011 judgments.

The Court declared that mere membership of a banned organization will be a crime under the country’s anti-terror law — Unlawful Activities (Prevention) Act (UAPA), 1967.

The ruling means that continued membership of a banned organization can be punished with a jail term of up to two years.

The three-judge bench, headed by Justice MR Shah, affirmed the constitutional validity and the rationale of Section 10(a)(i).

This makes continued membership of a banned organization a crime punishable with a jail term up to two years. The bench, which also included Justices CT Ravikumar and Sanjay Karol, noted that the object and purpose of the UAPA is to provide for more effective prevention of certain unlawful activities.

Punishing such a person who is continued as a member of such an unlawful association, which is declared unlawful due to unlawful activities, can be said to be in furtherance of providing for effective prevention of the unlawful activities.

The Court held that the three judgments of 2011 were “not a good law” in ruling that mere membership of a banned organization would not incriminate people unless they resort to violence; incite people to violence or do any other overt act to disturb public tranquility.

The Court held that the two-judge benches of the Supreme Court erred in reading down the UAPA provision in individual criminal cases on bail when there was neither any challenge to the law nor an opportunity for the Union government to present its version before the verdict.

Allowing the Centre’s plea, the three-judge bench disapproved of the previous views, stating that before following American decisions, Indian courts are required to consider the difference in the nature of the laws applicable in the respective countries.

Even in the absence of any challenge to the constitutional validity of Section 10(a)(i) of the UAPA, the top court said there was no question of reading down the said provision by the court in 2011, particularly in the wake of the legislative history and objective of the UAPA.

The court also rejected a challenge to the UAPA provision over the possibility of its misuse, underlining that a mere possibility of misuse cannot be a ground or a relevant consideration while considering the constitutionality of a provision.

“As per the settled position of law, any action which is the result of abuse/misuse of any law is subject to challenge. But on the possibility of abuse or misuse of law otherwise constitutionally valid legislation cannot be declared unconstitutional,” it said.

Writing a separate but concurring judgment, Justice Karol highlighted that under Indian law, it is not membership of political organizations or free speech or criticism of the government that is sought to be banned.

“It is only those organizations which aim to compromise the sovereignty and integrity of India and have been notified to be such and unlawful, whose membership is prohibited. This is in furtherance of the objective of the UAPA, which has been enacted to provide for the more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected therewith. The distinction, therefore, is clear,” he said.

The ruling has sparked concerns among human rights groups who fear that it could be used to silence dissent and crack down on civil society organizations.

Amnesty International, in a statement, said that this ruling will have a “chilling effect on the right to freedom of association in India.”

FORUM-ASIA, in a statement, condemned the judgement, saying that the Indian state has already been misusing terror laws against dissenting voices, human rights defenders, and journalists in the country – the new ruling will further allow the state to incarcerate individuals based on prejudicial evidence.

The regional NGO reminds the Indian Government of its responsibility to protect people’s freedom of association as ensured by the Indian constitution and the International Covenant on Civil and Political Rights, to which India is a state party.

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