Friday, 28 January 2022

“Fundamental Rights of Guilty Members of Unlawful Association”- By Yashika Soni

“Fundamental Rights of Guilty Members of Unlawful Association”- By Yashika Soni

The major case in this area is Apthekar vs Secretary of State. The US Supreme Court ruled in this case that a person's fundamental rights cannot be denied only because he or she is a member of the Communist Party. Furthermore, it was determined that encroaching on fundamental freedoms would not achieve the underlying purpose of ensuring national security. To safeguard the state's security requirements, less extreme measures might be adopted. Cramp vs. Board of Public Instructions reached a similar conclusion. Furthermore, the constitutional bench ruling in Kedar Nath Singh versus State of Bihar by the Supreme Court of India explicitly establishes the application of English and Canadian law in the context of sedition

“A tendency for causing tumult or disturbance is an important feature of sedition under English law... As a result, section 124A must be understood in the same way as sedition is interpreted in England, and a tendency to upset public order must be deemed to be an important part of the offence under s124A. The Canadian Criminal Code's articles 133 and 133A, which deal with sedition, have been accorded the same meaning, 1951, Canadian SCR 265. Tilak's case, 22 Bom 1112, Bhalerao's case, 74 IA 89, and Wallace-Johnson's [1940] AC 231, that encouragement to violence or a desire to disrupt public order was not an essential part of S. 124A, is incorrect. The right opinion is that the tendency to disturb public order is a required component of the crime under § 124A, as stated in 1942 FC R 38. In the instance of Devi Saran, 32 Pat 1124, the same conclusion is reached.”

The actual provocation of violence or disturbance of public order is clearly a vital criterion for establishing a crime in this scenario. This should logically follow in the case of prohibited organisations as well. Finally, in Vogt vs Germany, the European Court of Human Rights held that a language teacher's right to freedom of association and freedom of speech and expression had been infringed when she was sacked only because she was a member of the German Communist Party. It wasn't enough for her to just be a member of this organisation. To summarise, a large body of domestic and international law plainly supports the ruling in Arup Bhuyan versus State of Assam, both in terms of national security and human rights. The central government's attempt to overturn the decision is clearly misguided. 

Also, In the case of Thwaha Fasal vs. UOI, a bench of Justices Ajay Rastogi and Abhay Oka concluded that when contemplating bail under the UAPA, the court does not need to conduct a mini-trial and should just review the evidence on which the chargesheet was submitted. The trial court had oversimplified the case while granting bail, according to the high court. The Supreme Court, on the other hand, stated that the high court overlooked the fact that the special court had studied all of the evidence and made prima facie conclusions that the accused had no intention of furthering CPI's operations (Maoist). The court therefore overturned the Kerala High Court ruling cancelling Fasal's bail.

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