February 25, 2011 3:31:36 PM
Abraham Thomas | New Delhi, Source: http://www.dailypioneer.com
The Supreme Court has made it virtually impossible for law enforcement agencies to arrest and try anyone just on the basis of their being a member of a banned organisation. In a judgement that would have serious consequences on dealing with the members of proscribed outfits, the court on Friday held that the probe agencies must establish that the person in question was also involved in violent activities for which the organisation was banned.
The order passed by Justices Markandey Katju and Gyan Sudha Mishra said, "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."
In the present case, the Bench dealt with an appeal filed by one Arup Bhuyan, alleged to be a member of banned United Liberation Front of Assam (ULFA). In connection with a political murder in Assam in year 1991, the police had picked up Bhuyan and booked him under various sections of Indian Penal Code and Terrorists and Disruptive Activities Act (TADA). Section 3(5) of the Act specifically provided punishment for being a member of a banned group.
Bhuyan, through senior advocate Vijay Hansaria and Aseem Mehrotra, argued that the case against him was false as he had no links with the banned group. Except for a confessional statement against him and the fact that he identified the deceaseds house, there was no evidence to link him with the crime.
The TADA court on March 28, 2007, after 16 years of protracted trial, had held him guilty based on the statement given to police, which is admissible evidence under TADA. But the Bench had a different take on the issue the issue. It said, "Confession is a weak kind of evidence...police in our country are not trained in scientific investigation nor are they provided the technical equipment for scientific investigation. Hence to obtain a conviction they (police) often rely on the easy short cut of procuring a confession under torture."
In the absence of any supporting evidence, the bench decided the question whether membership of a banned group could be the sole reason to prosecute a person under TADA. The bench said, "Even assuming he was a member of ULFA, it has not been proved that he was an active member and not a mere passive member."
Quoting English law on the point to hold "guilt by association" cannot hold good in India too, the bench reiterated, "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 resorting to violence."