The criminalisation of association

Imagine that an article online catches your fancy, causing you to subscribe to the publication – receiving its newsletters, panel discussion invites, etc. Unbeknownst to you, the Home Ministry (and a related administrative tribunal) notifies the publication as an unlawful organisation, sanctioning it under the Unlawful Activities (Prevention) Act, 1967 (UAPA). Your simple act of association with the publication makes you liable for prosecution under UAPA -- the same statute that was used to punish 26/11 terrorist Ajmal Kasab. A recent decision of the Supreme Court of India in Arup Bhuyan v. State of Assam reverses precedent in State of Kerala v. Raneef and criminalises passive membership (without proof of one actually having aided the organisation) of unlawful organisations.

The earlier decisions had read-in the ‘active membership’ test for applying Section 10(a)(i) of the UAPA. ‘Active membership’, as against ‘passive membership’, requires proof of one having actually provided support to that organisation – not merely evidence of appearing on a list (if one exists) of members. Since membership of an organisation or its renunciation is often difficult to clearly demonstrate, the ‘active membership’ test is an important protection. Punishing ‘passive membership’ is anathema to criminal law. Even if the ends of a group are unlawful and an individual shares in such ideas, unless someone has actually acted to support those ends, punishing the thought takes away the basic right of a person to decide their actions as well.

Consequently, the court’s ruling in Raneef held Section 10(a)(i) of the UAPA ultra vires free speech (Article 19(1)(a)) and free association (Article 19(1)(c)) rights and read down the provision to require ‘active membership’. The use of American court precedents was the crux of the government’s criticism – though nothing restricts courts from relying on such precedents. It is therefore important to consider these precedents – most importantly, Schenck v. United States, a World War 1-era US Supreme Court decision holding that restrictions on speech are permissible only when there is a “clear and present danger” as against a speculation of harm (read: passive membership). While Indian courts haven’t consistently applied the Schenk test, it has been recently used in key cases such as Shreya Singhal, where the Supreme Court relied on Schenk to strike down Section 66A of the IT Act.

The Arup Bhuyan judgement ruled that these US cases are alien to Indian jurisprudence and reversed the holding of Raneef, punishing ‘passive membership’ under UAPA. The court’s analysis has, however, three key lacunae which critically erode constitutional protections.

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First, the court has heavily relied on its 1950s ruling in Babulal Parate v. State of Maharashtra, discussing the constitutionality of Section 144. The challenge to Section 144 was on similar grounds and the court validated the law, relying on an assurance that the provision would only be used in “emergencies” (despite its unbridled text). Since then, thankfully, the court’s interpretation had become stricter – Shreya Singhal rejected the government’s assurances of proper use of Section 66A. However, the Arup Bhuyan ruling did not deeply analyse the chilling effect and potential for misuse of Section 10(i)(a). Instead, similar to Babulal Parate, it took comfort from a severely deficient quasi-judicial process (in Sections 3 and 4 of UAPA) used to declare an organisation unlawful.

Sections 3 and 4 outline a two-step process – first, the central government notifies an organisation as unlawful. This notification is then reviewed by a tribunal (comprising a retired judge appointed by the central government) which seeks the organisation’s members’ views before authorising/denying the notification. The tribunal’s fairness (not analysed by the Arup Bhuyan court) is debatable as its appointment by the central government can adversely impact fairness – a logic the Supreme Court itself used in the Election Commissioner’s appointments case recently.

Fairness aside, the entire process is a catch-22, and this is the second lacuna with the ruling. Since only members of the organisation may appear before the tribunal, if the notification is approved, the person defending it will find it virtually impossible to avoid UAPA penalties. The court has not considered that memberships of ideological groups are inherently intangible -- there is no unsubscribe button. The process is also grossly unfair, since an appeal against the tribunal’s decision is virtually criminalised, with the fact of the appeal itself being used as proof of continuing membership against the appellant.

Finally, the court’s rejection of US law precedents is deeply worrying. While free speech in India today is narrower than that in the US, it is not restrictive enough to punish thought or ‘passive membership’. Indian jurisprudence reads the protections on equality (Article 14), freedoms (Article 19), and life and liberty (Article 21) as a consolidated protection. The Supreme Court has previously (eg., in Shreya Singhal (abolishing Section 66A), Puttaswamy (enunciating a right to privacy), Anuradha Bhasin (on internet shutdowns in Kashmir)) ruled that restrictions on these rights must meet a four-pronged proportionality test -- a) the restriction seeks to fulfil a legitimate goal; b) the goal and the means adopted have a rational nexus; c) other measures with equal effectiveness were considered and the measure used is the least restrictive measure of similar effectiveness; and, d) there is no disproportionate impact on anyone with procedural safeguards against abuse. This test has clear echoes of the Schenk ruling. Unfortunately, the Arup Bhuyan ruling avoided analysis of the constitutionality of Section 10(i)(a) of the UAPA on these lines.

The inescapable conclusion of applying the proportionality doctrine is that the ‘passive membership’ test fails at the very first prong, viz., the existence of a legitimate goal. While preventing terrorism is legitimate, ‘passive membership’ is at best equivalent to sharing in an ideology – different from a terrorist “activity” without additional action taken to assist terrorism. Importantly, thoughts/ideology are more fundamental to even speech, and therefore, restrictions of Article 19(2) on speech cannot apply to them. Freedom of thought (when not spoken/expressed) is arguably an unabridged right. Punishing thought assumes that the State has an objective basis to foretell future actions. Therefore, unless a person acted in a measurably significant way to further ideology, proving crime beyond reasonable doubt is not possible. The Arup Bhuyan ruling’s broadening of the UAPA has, sadly, legitimised punishment of thought.

(The writer is an attorney based in New Delhi, India)