Membership of a banned outfit need not be a criminal act: Supreme Court
Source: Hueiyen News Service

New Delhi, February 05, 2011: Mere membership of a banned organisation will not make a person criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence, the Supreme Court held on Thursday.

A Bench of Justices Markandey Katju and Gyan Sudha Misra gave this ruling, setting aside a designated court judgment which convicted Arup Bhuyan under Section 3 (5) of the Terrorist and Disruptive Activities (Prevention) Act of being a member of the United Liberation Front of Asom.

Justice Katju quoted a US Supreme Court judgment which said: "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.".

Another US Supreme Court judgment also 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, the Bench noted.

"We respectfully agree with the 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 US Constitution.".

Arup Bhuyan was convicted under the TADA Act of being a member of the banned ULFA, on the basis of a confession which is admissible evidence under the TADA Act.

Allowing the appeal against this judgment of the Designated Court, Assam, in Guwahati, the Bench said the appellant denied that he was a member of the banned outfit.

"Even assuming he was a member of the ULFA, it has not been proved that he was an active member and not a mere passive membe".

On confessional statements, the Bench said "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.".

The Bench said, "Confession is a very weak kind of evidence.

As is well known, the widespread 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.".

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

In the instant case, "the prosecution case mainly relies on the alleged confessional statement of the appellant made before the Superintendent of Police.

We are of the opinion that it will not be safe to convict the accused on the basis of alleged confessional statement".

Section 3 (5) of TADA could not be read literally; doing so would be violative of Articles 19 (right to freedom) and 21 (right to life and liberty) of the Constitution.

The Bench acquitted the appellant of all charges.

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