It has been four months since Mohammad Sahil (name changed to protect his identity), who faces charges of being associated with the banned Popular Front of India, walked out of jail after 60 days behind bars. But news of a recent Supreme Court order has left him terrified.
On March 24, the Supreme Court ruled that mere membership of a banned organisation is an offence under the stringent anti-terror law, the Unlawful Activities (Prevention) Act.
Before his detention, Sahil was a member of one of the affiliate groups of the Popular Front of India. On September 28, the Union Ministry of Home Affairs banned the group and its affiliates for five years through a gazette notification under the Unlawful Activities (Prevention) Act.
In a first information report filed on September 29, the Delhi police alleged that Sahil and seven others shouted slogans in support of the banned outfit. The police added they recovered Popular Front of India flags and pamphlets declaring “PFI zindabad” or long live PFI, from them. The first information report against Sahil invoked two sections of the anti-terror law: Section 10, penalty for being a member of an unlawful association, and Section 13, for punishment for unlawful activities.
As far as Sahil is concerned, his association with the Popular Front of India ended after he was detained. However, the FIR against him has not been quashed and the chargesheet is awaited. “The new Supreme Court ruling is going to empower police to harass us,” he told Scroll. “There is an open investigation against me. I am falsely accused of being a member of PFI even as I have snapped all ties.”
Legal experts have raised concerns that the Supreme Court’s judgement can be misused since it has not defined what constitutes being a member of an organisation. The ruling has also overturned three judgements from 2011 that said that the prosecution would need to show active membership – that the accused had resorted to overt acts in promoting the cause of the organisation.
The court judgement
The ruling issued by a three-judge bench of the Supreme Court says when an association has been declared unlawful by the Central government, any person who continues to be a member will be liable for prosecution under the anti-terror law.
According to the Unlawful Activities (Prevention) Act, merely being a member is punishable by up to two years imprisonment, whereas assisting an association after it is declared unlawful can attract a sentence of up to five years.
Till now, 14 organisations have been declared unlawful in India. This includes the Student’s Islamic Movement of India, United Liberation Front of Asom and Sikhs for Justice.
A ban on an organisation may also extend to its associates or fronts. For instance, when the Popular Front of India was banned in September, the government banned all its seven affiliates as well.
Lawyers have pointed out that often these frontal organisations feature in chargesheets for the first time, despite not being specifically banned by the government.
However, even as it has been outlawed, what membership of an unlawful association entails is not defined anywhere in the statute books. Thus, how membership is withdrawn is also unclear. “There are no ‘formal’ members when it comes to these organisations,” said Delhi-based criminal lawyer Warisha Farasat. “It is not like someone is maintaining a register.”
Bringing a claim of membership often relies on shaky evidence. In several cases, Farasat explained, the government tries to allege that a certain person is a member based on them possessing books or attending meetings. “Sometimes, even friendship with a member is used to prove membership,” she added.
According to Farasat, charges of membership are brought up frequently. These claims of membership might often be fabricated and may not hold up in court, she said.
The court’s previous reading that passive membership would not amount to a crime unless it is accompanied by some overt action gave the judiciary the flexibility to acquit or grant bail in cases, Farasat said. “Now, that discretion is gone,” she said. “It is quite draconian.”
For instance, in Sahil’s case, when the FIR was filed against him and seven others, the accused were already behind bars. While granting them bail, the court observed, “The record shows at the time of the ban on PFI, the accused persons were already in custody.”
The court asked that when the accused were in custody from September 27 to October 3-4, how could they have carried out activities aimed “advocating, abetting or inciting/assisting any unlawful activity of the unlawful organisation”.
Mumbai-based senior criminal lawyer Mihir Desai said that this ruling will lead to more arrests and more pleas for bail being denied and could be used against those “whose only offence would have been to differ from the ideology of the establishment”.
It has made those facing charges even more guarded. As Sahil said, since he got bail, he has been cautious in voicing his opinions on social media. “Now, I will further censor myself,” he said.
Stringent provisions for ‘terrorism’
While the Supreme Court judgement discusses unlawful associations, legal experts say that its logic may also apply to terrorist organisations. The Unlawful Activities (Prevention) Act has two parts to it: one that punishes unlawful activities – disrupting the territory or sovereignty of India – and the other that punishes terrorist activities, such as those that aim to “strike terror” among Indians.
Charges under terrorist activities carry harsher punishment and make bail almost impossible. To grant bail, the court needs to make a broad assessment if the accusations against an accused are prima facie true – thus forming a preliminary opinion even before trial.
At this stage, the court is required to take the prosecution’s case at face value while the defence cannot even bring its evidence.
Apart from terming certain organisations as unlawful, the provisions also give the Centre the power to designate certain organisations as terrorist organisations. Section 20 of the Unlawful Activities (Prevention) Act deems the membership of a terrorist organisation punishable with life imprisonment.
As of now, 44 organisations, along with their fronts (that are often undefined), are categorised as terrorist organisations.
The Supreme Court’s judgement might also make it easier for the government to prosecute people for being members of terrorist organisations.
Take Kashmiri photojournalist Manan Dar’s case. In January 2023, a Delhi court granted bail to Dar on the grounds that, prima facie, the evidence against him was not sufficient to keep him in jail.
The National Investigation Agency had accused Dar of being part of WhatsApp and Telegram groups sympathetic to the banned terror group, Resistance Front. The central agency had claimed that Dar was an overground worker of the banned outfit and would share images of security forces and deployment under the cover of being a photojournalist. But the court said the accusations were not backed by enough evidence to deny Dar bail.
Relying on the judgment Thwaha Fazal vs Union of India, the Delhi court considered the submissions made by Dar’s counsel that mere association with a banned group was not an offence under the Unlawful Activities (Prevention) Act.
But with the latest Supreme Court judgement, orders like Dar’s might become difficult. “If this bail order had come after the judgment it would have affected the prospects of Manan’s bail,” said his counsel Tamana Pankaj.