Supreme Court doubts verdict that rejected ‘guilty by association’ doctrine | Latest News India | Times Of Ahmedabad

The Supreme Court on Wednesday called into question its 2011 judgments that ruled that mere membership of a banned organisation cannot be a crime, observing that there was no challenge to the law when the doctrine of “guilt by association” was rejected, nor was the Union government heard before the verdict.

“Where is the question of reading down a law unless its validity is challenged or doubted? Before reading down a provision, wasn’t the other bench required to hear the Union of India? How can you read down a central statute without giving them an opportunity?” a bench, led by justice MR Shah, asked.

The bench, which included justices CT Ravikumar and Sanjay Karol, was considering the Centre’s plea to review the two judgments of 2011, in which a provision of the Terrorist and Disruptive Activities (Prevention) Act (TADA) (now repealed) was read down to hold that mere membership of a banned organisation cannot incriminate a person unless he or she resorted to or incited violence. These decisions had come while hearing two separate cases of bail and conviction under TADA.

The Centre complained that not only it was imperative for the two-judge benches to seek its views at the time of hearing these cases but the reading down of the TADA provision had also impacted a similar provision under the Unlawful Activities (Prevention) Act (UAPA), which prescribes punishment for being a member of an unlawful association. In 2014, the matter was referred to a three-judge bench.

On Wednesday, solicitor general Tushar Mehta, representing the Union government, argued that the 2011 judgments failed to consider a raft of significant considerations, including the legislative intent and the fact that Parliament, in its wisdom, has engrafted certain provisions to keep the security of the nation intact.

“If Lashkar-e-Taiba is a banned organisation, a person cannot say I am just a member and have a right to remain a member. The right to form an association cannot be an unbridled right, and when it affects sovereignty and integrity of the country, restrictions will be reasonable. The law is preventive in nature and not just punitive,” he added.

Senior advocate Sanjay Parikh, appearing for the other side, defended the 2011 judgments on the ground that a series of judgments by the Supreme Court since 1960s have held that there must be an overt act of incitement or violence before a person can be prosecuted.

The bench, however, took a grim view of the fact that the 2011 judgments had come while hearing criminal cases in which no party had questioned the legal validity of the TADA provision or the doctrine of “guilty by association”.

“We have to also consider the jurisdiction under which we are hearing a case. If a bail matter is before a court, how can it go into the constitutional validity of a provision without a challenge to that law? Can it be said that merely because we are the Supreme Court, we can go into the validity of anything in any manner?” it asked.

The bench remarked that a particular case may result into an acquittal or a grant of bail but reading down a legal provision without hearing the necessary parties and without a challenge to the law may not be a good precedent.

“We can very well say that in the absence of a challenge to the validity of the legal provisions, the impugned judgment is not a good law,” added the court, pointing out that the pertinent UAPA provision is already under challenge before a different set of petitions.

“If these (2011) judgments stand, what is left to be decided in the other (UAPA) matter? Such an observation by a bench in a stand-alone criminal case will leave nothing for the other bench to do. The court may eventually acquit the person in the facts of that case, but where is the question of reading down provisions in a criminal case?” it asked.

The court then said that it would be reserving its judgment on Thursday after a 10-minute submission by Parikh, and asked the S-G to submit some judgments as to whether a court can read down a law when there is no such challenge before it.