Mere membership of a banned organisation does not make a person criminal unless he or she resorts or incites people to violence, the Supreme Court has ruled.

The ruling assumes significance in the wake of life imprisonment imposed on noted civil liberties activist leader Binayak Sen by a sessions court in Chhattisgarh for acting as a courier to a jailed Maoist leader. The conviction has been challenged in the High Court.

“In our opinion, Section 3(5) cannot be read literally as otherwise it will violate Articles 19 9(free speech) and 21 (liberty) of the Constitution. It has to be read in the light of our observations made above. Hence, 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,” a Bench of Justices Markandeya Katju and Gyan Sudha Mishra said in an order on Friday.

The apex court passed the order while upholding the appeal filed by Arup Bhuyan, an alleged activist of banned ULFA challenging his conviction by a designated TADA court in Guwhati for being a member of the organisation.

Section 3(5) of the TADA makes mere membership of a banned organisation a criminal offence though in this case Bhuyan denied any membership with the ULFA.

“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.

“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 resort to violence,” Justice Katju said citing the Constitution Bench judgment in Kedar Nath Vs State of Bihar (1962) and a number of judgements passed by the U.S. Supreme Court.

The apex court also reiterated that confession recorded by a police officer is not an admissible piece of evidence unless corroborated by material evidence.

“The appellant is alleged to be a member of ULFA and the only material produced by the prosecution against the appellant is his alleged confessional statement made before the Superintendent of Police in which he is said to have identified the house of the deceased.

“Confession is a very weak kind of evidence. As is well known, the widespread and rampant practice in the police in India is to use third degree methods for extracting confessions from the alleged accused.

Hence, the courts have to be cautious in accepting confessions made to the police by the alleged accused, the Bench said.

Under Section 25 of the Evidence Act, confession to a police officer is inadmissible but is admissible in TADA cases vide Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987.

“Unfortunately, the police in our country are not trained in scientific investigation (as is the police in western countries) nor are they provided the technical equipment for scientific investigation.

Hence, to obtain a conviction, they often rely on the easy short cut of procuring a confession under torture.

“Torture is such a terrible thing that when a person is under torture he will confess to almost any crime. Even Joan of Arc confessed to be a witch under torture. Hence, where the prosecution case mainly rests on the confessional statement made to the police by the alleged accused, in the absence of corroborative material, the courts must be hesitant before they accept such extra-judicial confessional statements,” the apex court said.

Accordingly, the apex court quashed the judgement of the designated court.

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