(This post first appeared at the Proof of Guilt blog.)
The distinction between “advocacy” and “incitement” is one that is familiar and important for constitutional courts world over. Advocacy of dangerous and subversive ideas is constitutionally protected, unless it rises to the level of incitement to violence, or to lawless action. In India, the distinction has had a troubled history, but it was endorsed most recently last month by Justice Nariman in Shreya Singhal vs Union of India, while striking down S. 66A of the IT Act for its failure to distinguish between the two concepts. Four years ago in 2011 though, the Supreme Court had already distinguished advocacy and incitement in a little-publicised, but extremely important case: Arup Bhuyan vs State of Assam.
Appreciating Arup Bhuyan
The case involved a challenge to the appellant’s conviction under Section 3(5) of the now-repealed Terrorist and Disruptive Activities (Prevention) Act [“TADA”], which criminalised “membership” of a terrorist gang or organization. This provision is in pari materia Sections 10 and 20 of the Unlawful Activities Prevention Act [“UAPA”], which replaced the TADA as the umbrella legislation for prosecuting terror suspects. While setting aside the conviction, Justice Katju read down S. 3(5) to save it from unconstitutionality on the grounds of Articles 19 and 21 of the Constitution. He did so by distinguishing passive from active “membership”, and restricted the latter to actual commission of violence, or incitement to violence. This distinction, naturally, closely tracks the difference between advocacy and incitement.
Arup Bhuyan distinguished between active and passive membership in a way crucial to UAPA cases, but beyond its conceptual articulation of the issues, that decision itself did not break new ground. In State of Kerala vs Raneef, decided in 2011, the Supreme Court upheld the Kerala High Court’s grant of bail to a person accused of UAPA offences, for being a member of the Muslim group “Popular Front of India”. Evidence, as ever, included “certain documents, C.D.s, mobile phone, books, etc. including a book called `Jihad’.” The Court noted that there was no prima facie evidence against the accused to warrant the restrictions on bail under S. 43(D)(5). Possession of literature was found insufficient to demonstrate active membership, and the doctrine of ‘guilt by association’ was unknown to the Constitution. A few months before, inVishvanath vs State of Gujarat, another UAPA case built on possession of literature/propaganda, the Gujarat High Court held that “possession of such material without there being any overt act or actual execution of such ideas by itself would not form or constitute any offence.”
The importance of this jurisprudence cannot be overstated. In India, where trials for terror cases drag on for years, bail is perhaps the most crucial safeguard of personal life and liberty. But its importance is perhaps matched only by its fragility, evident upon evaluating the effect of the decision on bail jurisprudence in terror cases.
Arup Bhuyan: Impact
Section 43D(5) of the UAPA restricts the discretion of courts in granting bail: the accused “shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person isprima facie true.” In May 2011, the Anti-Terrorism Squad arrested six members of the cultural group, the Kabir Kala Manch, for offences under the UAPA. It was alleged that the KKM had close links with the banned Communist Party of India (Maoist), which was sought to be proved through the recovery of allegedly “incriminating literature and propaganda”. Accordingly, the Sessions Court refused to grant bail.
Nonetheless, in two separate applications before the Bombay High Court, Justice Thipsay granted bail. In doing so, he relied directly on Arup Bhuyan. Possession of literature relating to a banned organisation was not, in itself, prima facie evidence of active membership as understood in Arup Bhuyan. Consequently, Justice Thipsay held:
“Since none of the applicants is said to have indulged into any acts of violence or of being a party to any conspiracy for committing any particular violent act or crime, they cannot be held, prima facie, to have committed the offences in question. Though it appears that they had come in contact with the members of the said organization, andwere perhaps learning about the philosophy and ideology of the said organization, they cannot be prima facie held as offenders. Even if they were impressed by the said philosophy and ideology, still they cannot be said to be members – much less such members as would attract the penal liability – of the said organization.”
In conclusion, it is also important to note that the State has asked for a review of Arup Bhuyan. In light of the discussion above, it is submitted that setting aside or watering down Arup Bhuyan will present a grave risk not just to free speech jurisprudence, but more directly and immediately to the right to personal liberty and fair trial under the Constitution.
(I have been unable to find public-domain links to some of the cases cited in this essay. I welcome any assistance on this issue.)