Mere membership of a banned organisation does not make a person criminal unless he or she resorts or incites people to violence, the Supreme Court has ruled. The ruling assumes significance in the wake of life imprisonment imposed on noted civil liberties activist leader and paediatricion Binayak Sen by a sessions court in Chhattisgarh for acting as a courier to a jailed Maoist leader. The conviction has been challenged in the high court.
“In our opinion, Section 3(5) cannot be read literally as otherwise it will violate Articles 19 9(free speech) and 21 (liberty) 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,” a bench of justices Markandeya Katju and Gyan Sudha Mishra said.
The top court passed the order while upholding the appeal filed by Arup Bhuyan, an alleged activist of banned Ulfa challenging his conviction by a designated TADA court in Guwhati for being a member of the organisation. Section 3(5) of the Tada makes mere membership of a banned organisation a criminal offence though in this case Bhuyan denied any membership with the Ulfa. “Even assuming that he was a member of ULFA, it has not been proved that he was an active member and not a mere passive member. 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,” Justice Katju said.