Member of illegal organisation not automatically guilty: Supreme Court

Holding that all members of an illegal organisation cannot be "automatically held to be guilty", the Supreme Court in a decision pronounced yesterday [State of Kerala v. Raneef, later reported as AIR 2011 SC 340] dismissed the appeal filed by the Government of Kerala challenging the bail granted to a doctor who was alleged to a member of an illegal organisation and had treated an assailant. Taking cue from the decisions of the United States Supreme Court and holding them to be applicable in the Indian context as well, the Supreme Court declared the law in the following terms;

In the present case there is no evidence as yet to prove that the P.F.I. is a terrorist organization, and hence the respondent cannot be penalized merely for belonging to the P.F.I. Moreover, even assuming that the P.F.I. is an illegal organization, we have yet to consider whether all members of the organization can be automatically held to be guilty. 

In Scales vs. United States 367 U.S. 203 Mr. Justice Harlan of the U.S. Supreme Court while dealing with the membership clause in the McCarran Act, 1950 distinguished between active ‘knowing’ membership and passive, merely nominal membership in a subversive organization, and observed :

“The clause does not make criminal all association with an organization which has been shown to engage in illegal activity. A person may be foolish, deluded, or perhaps mere optimistic, but he is not by this statute made a criminal. There must be clear proof that the defendant specifically intends to accomplish the aims of the organization by resort to violence.”

In Elfbrandt vs. Russell 384 US 17-19 (1966) Justice Douglas of the U.S. Supreme Court speaking for the majority observed :

“Those who join an organization but do not share its unlawful purpose and who 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 organization infringes unnecessarily on protected freedoms. It rests on the doctrine of ‘guilt by association’ which has no place here.”

In Joint Anti-Fascist Refugee Committee vs. McGrath 341 US 123 at 174 (1951) Mr. Justice Douglas of the U.S. Supreme Court observed: 

“In days of great tension when feelings run high, it is a temptation to take shortcuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within.”

We respectfully agree with the above decisions of the U.S. 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. 

Have a look at the decision.

Post-Script Rejoinder (February 13, 2011)

Subsequent to writing this post, we have before us two more decisions of the same bench of the Supreme Court wherein the above proposition of law has not only been reaffirmed but in fact has been extended in as much as the Court has reflected additional reasons as to why the principles should be followed without exception. One must also remember that these decisions gain significance in view of the fact that they have been delivered, reaffirming the earlier stand, despite criticism from both the Government and Media. Thus they reflect upon the unwavering attitude of the Court. For the benefit of our readers, we are adding our analysis on these two decisions in this post itself. 


On February 3, 2011 the Court pronounced its decision in ARUP BHUYAN v. STATE OF ASSAM (later reported as AIR 2011 SC 957) wherein the Court reflected the reasoning for the principle in the following terms;

The appellant is alleged to be a member of ULFA and the only material produced by the prosecution against the appellant is his alleged confessional statement made before the Superintendent of Police in which he is said to have identified the house of the deceased.

Confession to a police officer is inadmissible vide Section 25 of the Evidence Act, but it is admissible in TADA cases vide Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987.

Confession is a very weak kind of evidence. As is well known, the wide spread and rampant practice in the police in India is to use third degree methods for extracting confessions from the alleged accused. Hence, the courts have to be cautious in accepting confessions made to the police by the alleged accused.

Unfortunately, the police in our country are not trained in scientific investigation (as is the police in Western countries) nor are they provided the technical equipments for scientific investigation, hence to obtain a conviction they often rely on the easy short cut of procuring a confession under torture.

Torture is such a terrible thing that when a person is under torture he will confess to almost any crime. Even Joan of Arc confessed to be a witch under torture. Hence, where the prosecution case mainly rests on the confessional statement made to the police by the alleged accused, in the absence of corroborative material, the courts must be hesitant before they accept such extra-judicial confessional statements.

In the instant case, the prosecution case mainly relies on the alleged confessional statement of the appellant made before the Superintendent of Police, which is an extra-judicial confession and there is absence of corroborative material. Therefore, we are of the opinion that it will not be safe to convict the accused on the basis of alleged confessional statement.

For the reasons stated above, we are in agreement with the impugned judgment so far as it has taken the view that the confessional statement in question cannot be acted upon as the sole basis for conviction of the appellant.

However, the TADA Court has convicted the appellant under Section 3(5) of the TADA which makes mere membership of a banned organisation criminal. Although the appellant has denied that he was a member of ULFA, which is a banned organisation. Even assuming he was a member of ULFA it has not been proved that he was an active member and not a mere passive member.

In State of Kerala Vs. Raneef, 2011 (1) SCALE 8, we have respectfully agreed with the U.S. Supreme Court decision in Elfbrandt Vs. Russell, 384 U.S. 17 (1966) which has rejected the doctrine of 'guilt by association'. Mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incites people to violence or does an act intended to create disorder or disturbance of public peace by resort to violence (See : also the Constitution Bench judgment of this Court in Kedar Nath Vs. State of Bihar, AIR 1962 SCC 955 para 26).

In Clarence Brandenburg Vs. State of Ohio, 395 U.S. 444 (1969) the U.S. Supreme Court went further and held that mere “advocacy or teaching the duty, necessity, or propriety” of violence as a means of accomplishing political  or industrial reform, or publishing or circulating or displaying any book or paper containing such advocacy, or justifying the commission of violent acts with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism, or to voluntarily assemble with a group formed “to teach or advocate the doctrines of criminal syndicalism” is not per se illegal. It will become illegal  only if it incites to imminent lawless action. The statute under challenge was hence held to be unconstitutional being violative of the First and Fourteenth Amendments to the U.S. Constitution.

In United States Vs. Eugene Frank Robel, 389 U.S. 258, the U.S. Supreme Court held that a member of a communist organisation could not be regarded as doing an unlawful act by merely obtaining employment in a defence facility.

We respectfully agree with the above decisions, and are of the opinion that they apply to India too, as our fundamental rights are similar to the Bill of Rights in the U.S. Constitution.

In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in the light of our observations made above. Hence, 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 by violence or incitement to violence. Hence, the conviction of the appellant under Section 3(5) of the TADA is also not sustainable.

Thereafter on February 10, 2011 the Court pronounced its decision in SRI INDRA DAS v. STATE OF ASSAM wherein the reasoning assigned by the Court is as under;

26. It has been submitted by the learned counsel for the Government before the TADA Court that under many laws mere membership of an organization is illegal e.g. Section 3(5) of Terrorists and Disruptive Activities, 1989, Section 10 of the Unlawful Activities  Prevention ) Act 1967, etc. In our opinion these statutory provisions cannot be read in isolation, but have to be read in consonance with the Fundamental Rights guaranteed by our Constitution.

27. The Constitution is the highest law of the land and no statute can violate it. If there is a statute which appears to violate it we can either declare it unconstitutional or we can read it down to make it constitutional. The first attempt of the Court should be try to sustain the validity of the statute by reading it down. This aspect has been discussed in great detail by this Court in Government of Andhra Pradesh vs. P. Laxmi Devi 2008(4) SCC 720.

28. In this connection, we may refer to the Constitution Bench decision in Kedar Nath Singh vs. State of Bihar AIR 1962 SC 955 where the Supreme Court was dealing with the challenge made to the Constitutional validity of Section 124A IPC (the law against sedition). 

29. In Kedar Nath Singh’s case this Court observed(vide para 26): 

………….“If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoken which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make them unconstitutional in view of Article 19(1)(a) read with clause (2). It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.”…………….

30. Section 124A which was enacted in 1870 was subsequently amended on several occasions. This Court observed in Kedar Nath’s case (supra) observed that now that we have a Constitution having Fundamental Rights all statutory provisions including Section 124A IPC have to be read in a manner so as to make them in conformity with the Fundamental Rights. Although according to the literal rule of interpretation we have to go by the plain and simple language of a provision while construing it, we may have to depart from the plain meaning if such plain meaning makes the provision unconstitutional.

31. Similarly, we are of the opinion that the provisions in various statutes i.e. 3 (5) of TADA or Section 10 of the Unlawful Activities (Prevention) which on their plain language make mere membership of a banned organization criminal have to be read down and we have to depart from the literal rule of interpretation in such cases, otherwise these provisions will become unconstitutional as violative of Articles 19 and 21 of the Constitution. It is true that ordinarily we should follow the literal rule of interpretation while construing a statutory provision, but if the literal interpretation makes the provision unconstitutional we can depart from it so that the provision becomes constitutional.

32. As observed by this Court in Government of Andhra Pradesh vs. P. Laxmi Devi (supra) every effort should be made by the Court to try to uphold the validity of the statute, as invalidating a statute is a grave step. Hence we may sometimes have to read down a statute in order to make it constitutional.

33. This principle was examined in some detail by the Federal Court in In re Hindu Women’s Right to Property Act, AIR 1941 F.C 12 in considering the validity of the Hindu Women’s Right to Property Act, 1937. The Act, which was passed by the Council of State after commencement of Part III of the Government of India Act, 1935, when the subject of devolution of agricultural land had been committed exclusively to Provincial Legislatures, dealt in quite general terms with the ‘Property’ or ‘separate property’ of a Hindu dying intestate or his ‘interest in joint family property’. A question, therefore, arose whether the Act was ultra vires of the powers of the Central Legislature. The Federal Court held the Act intra vires by construing the word ‘property’ as meaning ‘property other than agricultural land’. In the aforesaid decision Gwyer, CJ. observed : 

“If that word (property) necessarily and inevitably comprises all forms of property, including agricultural land, then clearly the Act went beyond the powers of the Legislature; but when a Legislature with limited and restricted powers makes use of a word of such wide and general import, the presumption must surely be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other.” 

The learned Chief Justice further observed: 

“There is a general presumption that a Legislature does not intend to exceed its jurisdiction, and there is ample authority for the proposition that general words in a statute are to be construed with reference to the powers of the Legislature with enacts it.”

34. The rule was applied by the Supreme Court in Kedar Nath Singh vs. State of Bihar (we have already referred to this decision earlier) in its construction of Section 124A of the IPC. The Section which relates to the offence of sedition makes a person punishable who ‘by words, either spoken or written or by sign or visible representations, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law’. The Section, as construed by the Privy Council in Bal Gangadhar Tilak vs. Queen Empress ILR 22 Bom 528 (PC); Annie Besant vs. A-G of Madras AIR 1919 PC 31; and Emperor vs. Sadasiv Narain AIR 1947 PC 84; did not make it essential for an activity to come within its mischief that the same should involve intention or tendency to create disorder, or disturbance of law and order or incitement to violence. The Federal Court in Niharendra Dutta vs. Emperor AIR 1942 FC 22 had, however, taken a different view. In the Supreme Court when the question came up as to the Constitutional validity of the Section, the Court differing from the Privy Council adopted the construction placed by the Federal Court and held that on a correct construction, the provisions of the Section are limited in their application “to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence; and one of the reasons for adopting this construction was to avoid the result of unconstitutionality in view of Articles 19(1)(a) and 19(2) of the Constitution. 

35. In Sunil Batra vs. Delhi Administration AIR 1978 SC 1675 the Supreme Court upheld the validity of Section 30(2) of the Prisons Act, 1894, which provides for solitary confinement of a prisoner under sentence of death in a cell and Section 56 of the same Act, which provides for the confinement of a prisoner in irons for his safe custody, by construing them narrowly so as to avoid their being declared invalid on the ground that they were violative of the rights guaranteed under Articles 14, 19 and 21 of the Constitution. 

36. In New India Sugar Mills vs. Commissioner of Sales Tax  AIR 1963 SC 1207, a wide definition of the word ‘sale’ in the Bihar Sales Tax Act, 1947, was restricted by construction to exclude transactions, in which property was transferred from one person to another without any previous contract of sale since a wider construction would have resulted in attributing to the Bihar Legislature an intention to legislate beyond its competence.

37. In Section 6(a) of the Hindu Minority and Guardianship Act, 1956 which provides that the natural guardian of a minor’s person or property will be ‘the father and after him, the mother’, the words ‘after him’ were construed not to mean ‘only after the lifetime of the father’ but to mean ‘in the absence of’, as the former construction would have made the section unconstitutional being violative of the constitutional provision against sex discrimination vide Githa Hariharan vs. Reserve Bank of India AIR 1999 SC 1149. 

38. In Govindlalji vs. State of Rajasthan AIR 1963 SC 1638, where a question arose as to the Constitutional validity of the Rajasthan Nathdwara Temple Act (13 of 1959), the words’affairs of the temple’ occurring in Section 16 of the said Act were construed as restricted to secular affairs as on a wider construction the Section would have violated Articles 25 and 26 of the Constitution.

39. This Court in R.L. Arora vs. State of U.P. AIR 1964 SC 1230 applied the same principle in construing Section 40(1), clause (aa) of the Land Acquisition Act, 1894, as amended by Act 31 of 1962 so as to confine its application to such ‘building or work’ which will subserve the public purpose of the industry or work in which the company, for which acquisition is made, is engaged. A wider and a literal construction of the clause would have brought it in conflict with Article 31(2) of the Constitution and would have rendered it unconstitutional.

40. In Indian Oil Corporation vs. Municipal Corporation AIR 1993 SC 844 Section 123 of the Punjab Municipal Corporation Act, 1976 which empowered the Corporation to levy octroi on articles and animals ‘imported into the city’ was read down to mean articles and animals ‘imported into the municipal limits for purposes of consumption, use or sale’ only, as a wide construction would have made the provision unconstitutional being in excess of the power of the State Legislature conferred by Entry 52 of List II of Schedule VII of the Constitution.

41. A further illustration, where general words were read down to keep the legislation within permissible constitutional limits, is furnished in the construction of Section 5 of the Lotteries (Regulation) Act, 1998 which reads: ‘A State Government may, within the State prohibit the sale of tickets of a lottery organized conducted or promoted by every other State’. To avoid the vice of discrimination and excessive delegation, the Section was construed to mean that a State can only ban lotteries of other States, when it decides as a policy to ban its own lotteries, or in other words, when it decides to make the State a lottery free zone vide BR Enterprises vs. State of U.P. AIR 1999 SC 1867.

42. It may be mentioned that there were Constitutions in our country even under British Rule e.g. the Government of India Act, 1935, and the earlier Government of India Acts. These Constitutions, however, did not have fundamental right guaranteed to the people. In sharp contrast to these is the Constitution of 1950 which has fundamental rights in Part III. These fundamental rights are largely on the pattern of the Bill of Rights to the U.S. Constitution.

43. Had there been no Constitution having Fundamental Rights in it then of course a plain and literal meaning could be given to Section 3 (5) of TADA or Section 10 of the Unlawful Activities (Prevention) Act. But since there is a Constitution in our country providing for democracy and Fundamental Rights we cannot give these statutory provisions such a meaning as that would make them unconstitutional. 

44. In State of of Maharashtra & Ors. Vs. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 (para 23) this Court observed :

“...Personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. That is why, while conferring extensive powers on the government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights or the the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as fundamental. The imperative necessity to protect these rights is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years and seen an alien Government trample upon human rights which the country had fought hard to preserve. They believed like Jefferson that “an elective despotism was not the Government we fought for”. And, therefore, while arming the Government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people. (vide A.K. Roy Vs. Union of India (1982) 1 SCC 271, and Attorney General for India Vs. Amratlal Prajivandas, (1994) 5 SCC 54.” 

In M. Nagaraj & Ors. Vs. Union of India &Ors. (2006) 8 SCC 212, (para 20) this Court observed:

“It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any Constitution by reason of the basic fact that they are members of the human race.” 

In I.R. Coelho (dead) By LRs. Vs. State of T.N., (2007) 2 SCC 1 (vide paragraphs 109 and 49), this Court observed :

“It is necessary to always bear in mind that fundamental rights have been considered to be heart and soul of the Constitution.....Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as “transcendental”, “inalienable”, and primordial”.

45. The appeal is consequently allowed and the impugned judgment is set aside.