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The case involved a challenge to the appellant’s conviction under Section 3(5) of the now-repealed Terrorist and Disruptive Activities (Prevention) Act [“TADA”], which criminalised “membership” of a terrorist gang or organization.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, in Vishvanath 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.
Just Like Flipping a Coin
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 is prima facietrue.” 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, and were 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.”
But where bail was granted to six of the co-accused, the seventh – Angela Sontakke – was denied bail. Her application was before a different judge – Justice Dharmadhikari. While ostensibly adhering to the law laid down in Raneef and Arup Bhuyan, the learned judge, it is respectfully submitted, misinterpreted what those cases actually said. The material recovered from Angela Sontakke, as the judgment records, was of a similar nature to that recovered from the other accused – books, propaganda, a camera etc. The allegation against Sontakke, however, was that she was a high-ranking member of the CPI-M, part of a few core committees. Some photographs were also allegedly recovered from her possession, which showed training camps in the forest. On this basis, it was held her case differed from that of her co-accused, because she was prima facie involved in “actively propagating the ideas and principles of the banned organisation”, and “actively promoting or propounding [its] ideology.”
The distinction drawn by Justice Dharmadhikari fails to appreciate the fact that whether I am passively impressed by an ideology, or whether I “actively” promote it, both those activities fall within the domain of permissible advocacy, protected by Article 19(1)(a) of the Constitution. “Active” propagation does not amount to “active membership”. The latter is a term of art, and has been specifically used to refer to incitement to violence, which is what takes it out of the protective ambit of Article 19(1)(a). The severe civil liberties and rule of law problems with this approach are exemplified by the fact that it is now four years since the accused in that case was sent to prison, with the trial yet to commence. In such circumstances, it is clear that Justice Thipsay’s reading of the Raneef-Arup Bhuyan line of cases is not only correct, but also the only way that the present criminal procedure can remain consistent with constitutional norms.
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.
(The author has been unable to find public-domain links to some of the cases cited in this essay. He welcomes any assistance on this issue.)