Friday, 28 January 2022

“Punishment for Being a Member of Unlawful Associations”- By Yashika Soni

“Punishment for Being a Member of Unlawful Associations”- By Yashika Soni

The Union Government has allegedly chosen to challenge the choice by the Supreme Court in Arup Bhuyan versus State of Assam (Criminal Appeal No (s) 889 of 2007) on the premise that the police can't hang tight for individuals from a banned association to perpetrate a terror act prior to arresting them. The court's decision accurately expresses that individuals from a banned association can't be treated as criminals except if they really resort to violence, prompt individuals to violence, or make public problem or unsettling influence of public harmony by violence. The "guilty by association" doctrine was disproved. It was suggested that Section 3 (5) of the Terrorist and Disruptive Activities (Prevention) Act (TADA) cannot be interpreted literally since it would violate Articles 19 and 21 of the Constitution. TADA must be interpreted in light of the Indian Constitution's guarantees of fundamental rights. This was explained in detail in Sri Indra Das vs State of Assam and in Kedar Nath Singh vs State of Bihar. The federal government is reportedly petitioning the Supreme Court for a larger bench to overturn the two-judge bench's decision. When there is a large body of national and international case law to back up the initial ruling, which is appropriately designed to handle any true national security issues, this is plainly vexatious. In their decision, Jus. Markandey Katju and Gyan Sudha Misra mention various examples. These, as well as other important decisions, are summarised here. In the case of State of Kerala vs Raneef, The United States (US) Supreme Court's ruling in Elfbrandt vs Russel was upheld by the Supreme Court. It was determined that joining a group but not engaging in its unlawful actions does not constitute a threat or a crime. If it did, it would violate the Constitution's guarantee of freedom of association. Furthermore, in Clarence Bradenburd vs. State of Ohio, the US Supreme Court stated that even "advocacy or teaching the duty, necessity, or propriety" of violence as a means of achieving political or industrial reform, or publishing or circulating such advocacy or displaying any book or paper containing such advocacy, or justifying the commission of violent acts with the intent to exemplify, spread, or advocate the propriety of criminal syndicalism doctrines, Only if these activities provoke impending lawless action will they be considered criminal.

Against Communist Party

This question has been particularly relevant in the context of the Communist Party in the United States. The Indian Supreme Court has already examined the evolution of US case law in this area in Sri Indra Das vs State of Assam, thus only brief references to those instances will be made here. At the case of United States vs Eugene Frank Robel, it was decided that a member of a communist organisation could not be convicted of a crime just because he or she worked in a defence facility. Scales vs US highlighted this even more by distinguishing between active and passive member organisations. There must be "clear proof that the defendant specifically wants to achieve the organization's goals by resorting to violence" for there to be a crime. In Noto vs. United States, the court found that just teaching communist ideology, or even the moral imperative for violence, is not the same as training a group for violent action. A sufficiently strong and pervasive indication of a call to violence, either now or in the future, is required.

In DeJonge vs Oregon, the US Supreme Court's chief justice stated even more explicitly that the state could not punish a person making lawful speech simply because the speech was sponsored by a particular organisation, and in Bradenburg vs Ohio, it was established that advocacy of the use of force or breaking laws cannot be prohibited unless it incites or produces imminent violence.

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