A tale of two cases

The Supreme Court rejects the doctrine of guilt by association', but the Chhattisgarh High Court applies it to deny Binayak Sen bail.

THE two cases were similar in facts and reasoning. In the first case, the Supreme Court Bench comprising Justices Markandey Katju and Gyan Sudha Misra held on February 3 that the mere membership of a banned organisation did not incriminate a person unless he resorted to or incited violence. In the second, a Chhattisgarh High Court Bench comprising Justices T.P. Sharma and R.L. Jhanwar rejected on February 10 the bail applications of Binayak Sen and Piyush Guha on the grounds that the trial court had found them guilty of sedition by association and had sentenced them to life imprisonment.

The Supreme Court's judgment must have been binding on the High Court. However, the High Court, though it cited the Supreme Court's February 3 judgment, apparently misinterpreted it to justify its rejection of bail to Sen and Guha.

In the first case, Arup Bhuyan was alleged to be a member of the United Liberation Front of Asom (ULFA), a banned organisation. The evidence against him was the confessional statement he made before the Superintendent of Police. Confession to a police officer is inadmissible under Section 25 of the Evidence Act. But it was admissible under Section 15 of the Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987, which has since been repealed. Bhuyan was booked and tried under TADA as cases registered under the Act when it was in force continued to be tried under it even after its repeal. The Designated Court under TADA found Bhuyan guilty in 2007.

The Supreme Court upheld Bhuyan's appeal against the TADA court's order. Interestingly, both the Designated Court and the Supreme Court agreed that despite Section 15 of TADA, confessional statements to a police officer cannot be acted upon as the sole basis for conviction of an accused. In its judgment, the Supreme Court held that confession was a very weak kind of evidence as the widespread and rampant practice of the police in India was to use third-degree methods to extract confessions from the accused.

Hence, the Bench said that where the prosecution case rested mainly on the confessional statement made to the police by the accused, in the absence of corroborative material the courts had to be hesitant in accepting such extrajudicial confessional statements.

The Designated Court, however, found Bhuyan guilty under Section 3(5) of TADA, which makes the mere membership of a banned organisation criminal. Bhuyan denied that he was a member of ULFA. The Supreme Court said in its judgment: 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.

'Guilt by association'

The Bench then explained how the doctrine of guilt by association could not be used to convict an accused. It said: Section 3(5) [of TADA] cannot be read literally, otherwise it will violate Articles 19 and 21 of the Constitution.

To sustain its view, the Bench relied on the judgments delivered by the United States Supreme Court in Elfbrandt vs Russell (1966), Clarence Brandenburg vs State of Ohio (1969) and United States vs Eugene Frank Robel (1967). In its view, the fundamental rights guaranteed under the Indian Constitution are similar to the Bill of Rights in the U.S. Constitution. The U.S. Supreme Court had rejected the doctrine of guilt by association in these cases.

The Bench's agreement with the U.S. Supreme Court's judgment in Clarence Brandenburg is significant. In this case, the U.S. Supreme Court held that the mere advocacy or teaching the duty, necessity, or propriety' of violence as a means of accomplishing political or industrial reform, or publishing or circulating or displaying any book or paper containing such advocacy, or justifying the commission of violent acts with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism, or to voluntarily assemble with a group formed to teach or advocate the doctrines of criminal syndicalism' is not per se illegal. It will become illegal only if it incites to imminent lawless action.

In his February 3 judgment, Justice Katju referred to another judgment rendered by him on January 3 this year. In State of Kerala vs Raneef, Justice Katju granted bail to the dentist Dr Raneef, who had treated one of the injured alleged assailants of Prof. T.J. Joseph of Newman College, Thodupuzha, Kerala. The assailants had chopped off Joseph's right palm in retaliation for allegedly incorporating a question criticising the Prophet Muhammad and Islam in an internal examination in his college.

Justice Katju said: The book entitled Jihad' said to have been found in his house was a Malayalam translation of a book written in Urdu in 1927 by a well known and respected religious scholar, Maulana Sayyid Abul Ala Maudoodi, and has been in circulation for 83 years, and is available in many bookshops. Raneef, being a doctor, was under the Hippocratic oath to attempt to heal a patient. Just as it is the duty of a lawyer to defend an accused, so also it is the duty of a doctor to heal. Even a dentist can apply stitches in an emergency.

Raneef was alleged to belong to the radical Popular Front of India (PFI). Justice Katju said there was no evidence yet to prove that the PFI was a terrorist organisation, and that even assuming that it was an illegal organisation, the court was yet to examine whether all members of such an organisation could be automatically held to be guilty.

Justice Katju quoted in agreement from the U.S. Supreme Court's judgment in Elfbrandt vs Russell: Those who join an organisation but do not share its unlawful purpose and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. A law which applies to membership without the specific intent' to further the illegal aims of the organisation infringes unnecessarily on protected freedoms. It rests on the doctrine of guilt by association' which has no place here.'

Justice Katju also cited Justice Douglas of the U.S. Supreme Court having observed in another case: In days of great tension when feelings run high, it is a temptation to take shortcuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within.

Striking similarity

The similarities in the cases of Arup Bhuyan, Dr Raneef and Dr Binayak Sen are striking. Yet, the Chhattisgarh High Court, which rejected Sen's bail application, found no reason to see the Supreme Court's observations in these cases as binding on it. After observing that the court was only required to ascertain whether the conviction of Sen and Guha was well founded on the basis of admissible evidence, the High Court rather unconvincingly rejected the arguments that it was not.

In Paragraph 33, the High Court recalled the prosecution case in a nutshell: Co-accused Narayan Sanyal is a hardcore naxalite and member of banned organisations. He was having close intimacy with appellant Binayak Sen. Binayak Sen visited Raipur jail (where Sanyal was lodged after arrest) for meeting Sanyal for 33 times. Piyush Guha made confession before police that those three letters (Articles 8, 9, and 10 found in his possession by the police) were given by Sanyal to Sen for sending the same to Kolkata through him.

The High Court agreed that this part of the evidence, that is, the confessional statement made to a police officer, was not admissible as evidence. Yet it gave no explanation as to how the trial court could find Guha and Sen guilty on the basis of this confession.

In Paragraph 43, the High Court has especially given credence to the doctrine of guilt by association by suggesting that both Guha and Sanyal are members of a Maoist group (which is not an organisation that has been banned), are involved in naxalite activities, created disloyalty, and enticed the public against the State machinery resulting in large-scale death of members of the armed forces and robbery of arms and ammunition from the police.

The High Court also found that Sen was closely associated with Sanyal and other alleged (the court itself has conceded that it was only alleged) hardcore naxalites, namely, Shankar Singh, Amita Shrivastava and Malti aka K.S. Priya, who are absconding after the arrest of the appellants, Sen and Guha. From the court's own judgment, it is not at all clear whether there is any arrest warrant pending against the so-called hardcore naxalites.

In Paragraph 45, the High Court mentions that the hard copy of the computer record found in possession of Sen reveals the names of Shankar Singh, Malti and Prafull Jha, against whom cases of the aforesaid nature are pending. But no details have been given.

In Paragraph 47, the High Court insinuates that the People's Union for Civil Liberties, whose Chhattisgarh unit Sen heads, did not ask the naxalite groups to stop violence. This is contrary to facts. The High Court makes a similar allegation against Sen himself in Paragraph 51, which again is untrue.

The High Court does not explain how the documents seized from Sen and Guha, which have already been in the public domain, are seditious. Its conclusion that the case of Arup Bhuyan is distinguishable in facts from that of Sen and Guha is surprising in view of the broad similarities in facts and reasoning.