New Delhi: 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
The ruling assumes significance in the wake of life
imprisonment imposed on noted civil liberties activist leader
and paediatrician 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.
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
"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 US 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
"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.