Modi government concerned over High Courts freeing members of terror outfits

NEW DELHI: The Modi government on Monday told the Supreme Court that it was “concerned” by the fact that high courts were freeing members of banned or terror outfits in the wake of a top court 2011 ruling that mere membership of such an outfit was not per se a crime and urged the court to revisit the ruling, but the court prima facie maintained that it was the correct law.

“We are concerned that high courts are following the ( SC) ruling,” Solicitor General Ranjit Kumar told a three-judge bench comprising justices JS Khehar, V Gopalagowda and Arun Misra, in his preliminary submissions, urging the court to have a relook at its earlier 2011 ruling.

A two-judge bench, comprising justices Markandey Katju and Gyansudha Misra, had then ruled that mere membership of a banned organisation would not be a crime per se unless the member resorted to violence or incited people to violence or created public disorder by violence or incitement to violence.



The ruling had come on a petition challenging the legal validity of certain provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987, which lapsed in 1995. The matter was then referred in 2014 to a three-judge bench for a review at the insistence of the Union and the Assam governments.

Today, the Solicitor General pointed out several loopholes in the 2011 ruling and urged the court to set it aside. He argued that TADA and other similar laws such as POTA were intended to protect the “sovereignty and integrity” of the country.

But some of these provisions were set aside by the top court unilaterally to the detriment of the Union, he argued. Mens rea or a guilty mind cannot be excluded from the law unless specifically disproved by the accused in such laws, he contended. Kumar argued that the top court ruling had also rendered several provisions in other laws useless.

The bench, however, did not prima facie seem convinced by his arguments, pointing out that several sections of the 1985 Act, modified in 1987, itself defined an offence as membership of a banned outfit plus some other activity such an incitement to violence or indulging in violence. It, however, agreed to examine the issue at length, keeping in mind the state’s security concerns and human rights issues flagged by activists.