The judgement must be reviewed The SC judgement, holding that mere membership of a banned organisation is not enough and that unless he resorts to, or incites, violence or disorder, he will not be incriminated or prosecuted has serious and long-term implications for the security, sovereignty and integrity of India. It needs to be recalled that whether it’s TADA or POTA, membership of a banned organisation was held to be punishable. Both these laws, now scrapped, were earlier held to be constitutionally valid by the SC.
Now we have the Unlawful Activities (Prevention Act), 1967, whereunder an unlawful activity means an act undertaken by either an individual or an association even by words, either spoken or written, that is designed for, or supports, any claim of secession or incites any individual or group that brings about such secession, and disrupts the territorial integrity and sovereignty of India.
Under this Act, punishment is provided for terrorist acts and also the power of the government to ban terrorist organisations. There are many internal remedies available of review against any order passed.
Further, membership of an association declared unlawful by itself is punishable if a person continues to be a member, takes part in meetings and in any way assists its operation. This Act has been held to be constitutionally valid by the SC.
No one doubts that India is facing serious threats from extremism, terrorism and secessionism. In terms of the SC judgement, unless a member resorts to violence or incites people to violence, no action can be taken.
Regardless of its contribution to the cause of terrorism, unlawful activities or secession, it’d be very easy for sympathisers to hold a meeting without any banner or official address to continue to channelise or assist terror activities. Membership of these organisations isn’t a club membership for enjoyment or pleasure.
One becomes a member when one shares the ideology or objective of these groups. The government must seek a review, and if the court doesn’t agree to it, then through a clarificatory or curative legislation must undo the impact of this judgement.
Ravi Shankar Prasad
The court has protected citizen's rights The recent judgment of the Supreme Court that mere membership of an organisation declared to be unlawful cannot be made a crime and that provisions of TADA or UAPA making mere membership a crime would be violative of the fundamental rights of association and free speech, is a salutary judgment, which will provide much-needed relief to hundreds of persons languishing in jail, like Dr Binayak Sen. The clamour among certain political parties that the judgment must be reviewed is totally misplaced.
Most organisations declared unlawful, like SIMI, do not have a system of formal membership. Moreover, most persons accused and incarcerated on the basis of membership of such organisations have been held only on the basis that they were found in possession of some literature or attended some meetings of them.
The charge against Dr Binayak Sen is that he passed on a couple of innocuous letters from a Maoist leader who was in jail to an alleged colleague outside. These letters did not contain any plan or hint of any unlawful activity.
Yet, he has been sentenced to life imprisonment on the basis that this constitutes sedition. Such charges can be levelled against any doctor treating a Maoist or SIMI member, or a lawyer representing them, or a journalist interviewing them. They can also be levelled against a person participating in a campaign by an “unlawful” organisation to implement the rural employment scheme or land reforms.
This is why the Supreme Court, while interpreting the offence of sedition, said that, “Viewed in that light, we have no hesitation in construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence.”
The incarceration and victimisation of hundreds of people merely on the basis of their association with, or membership of, an organisation declared unlawful is not only causing grave injustice to persons like Dr Binayak Sen but also perpetrating a deep sense of injustice and alienation among many innocents.
Senior Advocate Supreme Court
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