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Guilt by association does not hold: SC by Samanwaya Rautray

The Supreme Court has said no person can be convicted merely because he was associated with a subversive organisation, unless he has shared its unlawful purpose or participated in its unlawful activities, in a judgment that could affect the fate of Binayak Sen and Maoist ideologues convicted by lower courts.

Apart from being held guilty of sedition, Sen, a doctor, has been convicted for his links with Maoists. The judgment may also help Maoist ideologue Kobad Ghandy. He could cite this to show that he did not share the outfit’s violent goals.

Quoting three US Supreme Court judgments, the court said that the doctrine of “guilty by association” has no place in a democracy.

The court was dealing with an appeal filed by Kerala, challenging bail to a doctor accused of treating one of the assailants guilty of chopping off professor T.J. Jacob’s hand for asking a question critical of Islam in a question paper. (The order was briefly reported in The Telegraph’s Tuesday edition).

Kerala High Court had granted bail to Raneef, a dentist, on September 17, 2010. He had treated one of the assailants, belonging to the Popular Front of India (PFI), by stitching a wound on his back after applying local anaesthesia. The treatment had taken place 45km away from the place of the attack.

Raneef was charged under the IPC, the Explosive Substances Act, and the Unlawful Activities (Prevention) Act as he was a Front member and headed its medical committee. He was later released on bail by the high court.

The state challenged the release, saying that under the Unlawful Activities (Prevention) Act, he could not be released, if on the basis of the police diary or FIR, there were grounds to believe that the accusation against him was prima facie true.

Raneef’s lawyer contended that he was not one of the assailants and he had also condemned the attack on Jacob. The defence also pointed out that the PFI or the Social Democratic Party of India (SDPI) were not militant or terrorist organisations.

“The SDPI is a political party recognised by the Election Commission and the PFI is registered under the Societies Registration Act,” the defence said. It also contended that he was falsely implicated as he had treated one of the assailants.

The top court accepted the contentions.

On the allegation that Raneef belonged to the PFI, the court said that there was no proof yet to show that it was a terrorist organisation, and hence he could not be penalised merely for belonging to it.

Even assuming that the PFI was an illegal organisation, it has to be considered whether all members can be automatically held guilty, Justices Markandey Katju and Gyansudha Mishra said in the judgment yesterday.

The court cited three US judgments in this context. In one, the US Supreme Court had distinguished between active “knowing” membership and passive, merely nominal membership in a subversive organisation.

“The clause does not make criminal all association with an organisation shown to engage in illegal activity. A person may be foolish, deluded or perhaps merely optimistic, but he is not by this statute made a criminal. There must be clear proof that the defendant specifically intends to accomplish the aims of the organisation by resort to violence,” it said, quoting the US court.

The apex court quoted another 1966 US judgment. In that, the majority said: “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 ‘specific intent’ to further illegal aims of the organisation infringes unnecessarily on protected freedoms. It rests on the doctrine of ‘guilt by association’ which has no place here.”

The top court also quoted a 1951 case, saying: “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.”

The Supreme Court said: “We are living in a democracy, and the above observations apply to all democracies.”

The court noted the trial in the case could take years and asked that if Raneef was eventually acquitted, who would restore the years spent in custody. Raneef had already spent 66 days in custody and there was no reason why he should be denied bail, the judges said.

“A doctor incarcerated for a long period may end up like Dr Manette in Charles Dickens’ novel, A Tale of Two Cities, who forgot his profession and even his name in the Bastille,” the bench added.