'Prone To Misuse': Experts On SC Order On Membership Of Unlawful Orgs Under UAPA

The top court has held that mere membership of a banned organisation is to be considered an offence under UAPA.

"Today, the Supreme Court has given one of the worst and most damaging civil rights judgments in its history."

Lawyer and Constitutional law expert Gautam Bhatia On Twitter

Bhatia, was referring to the Supreme Court's ruling on Friday, 24 March, which said that mere membership of a banned organisation is to be considered an offence under the Unlawful Activities (Prevention) Act, 1967 (UAPA).

This reversed a 2011 verdict from the top court according to which mere membership of an unlawful organisation would not incriminate a person unless they:

• resort to violence or 

• incite people to violence or 

• perform an act intended to create disorder or disturbance to public peace by resorting to violence

Why Worst 'Civil Rights Judgment'?

But, why did Bhatia deem this the "worst civil rights judgment"?

In his thread of tweets he explained further that the 2011 verdict, that the top court has now reversed, "understood the simple point that the word “membership” is so broad and vague that State can make completely baseless allegations and keep people in jail for years without trial. So they established a higher threshold. Now that protection is gone."

He is not the only one who thinks so. Other legal experts think similarly.

Advocate Dushyant took to Twitter to express his concerns, "Someone can go on a website and fill a membership form with your name and the state can throw you in prison with near impossible conditions for bail."

'Is 5 minutes of Membership Post Ban a Sign of 5 Minutes of Terrorist Activity?'

While passing the order, Justice MR Shah had said:

"Section 10(a)(i) cannot punish only if a person is member of an unlawful organisation it is only when notification under section 3 is issued against organisation and the section applies to the one who is and continues to be a member even after the section 3 notification. This shows intention to be a member to continue to be a member of that organisation which is declared as unlawful and against integrity and sovereignty of India. If the person still wishes to be part of this organisation it shows conscious decision of the person and is liable to be penalised."

Reacting to this, Advocate Soutik Banerjee questioned on Twitter:

"What is the cooling off period within which one has to resign? How many minutes after notification should they resign, or does it have to be simultaneous resignation? Is 5 minutes of membership post ban a sign of 5 minutes of terrorist activity? Ingenious."

'Misuse Of Laws Like UAPA by The Executive'

"So, J, Katju's progressive judgment in Arup Bhuyan v State of Assam following a line of enlightened American Supreme Court judgments rejecting the doctrine of "guilt by association" goes. This will open the floodgates for misuse of laws like the UAPA by the executive," Advocate Ajith said on Twitter.

Context: In the 2011 order in Arup Bhuyan, the division bench had relied upon the decision of the same bench in State of Kerala versus Raneef (2011). 

In the Raneef case, the court had highlighted the U.S. Supreme Court decision in Elfbrandt versus Russell (1966), which rejected ‘guilt by association’ doctrine.