Verdicts that bring rival parties together

The Supreme Court’s (SC’s) three judgments in the past fortnight that mere association with a banned organisation isn’t an act of terror and that confession extracted by police is not evidence unless there’s corroboration has brought political parties together.

Particularly the judgment which said a law is bound to be scrapped if any of its provisions is not in consonance with the fundamental rights has hurt them most.

But Justice Markandey Katju and Justice Gyan Sudha Misra thoroughly examined judgments of different top courts abroad before arriving at the said conclusions.

“The doctrine of ‘guilt by association’ has no place here,” US SC justice Douglas had ruled in 1966.

Later, he distinguished between active and passive association. “There must be clear proof that a defendant specifically intends to accomplish the aims of the organisation by resort to violence. A person may be foolish, deluded, or perhaps merely optimistic, but he is not by this statute made a criminal,” Douglas held.

When Nato faced trial under the English parliament law in 1799 for outlawing certain societies because they were engaged in “a traitorous conspiracy” and teaching communist theory, a serious crime in the US until the Cold War was over, justice John Marshall Harlan observed: “The mere teaching of communist theory is not the same as preparing a group for violent action.”

There must be some “substantial direct or circumstantial” evidence of a call to violence “now or in the future” which is   both “sufficiently strong and sufficiently pervasive” to lend colour to the otherwise ambiguous theoretical material regarding communist teaching.

When the practice of outlawing parties and various public groups begins, no one can say where it will end.

The threat is not that serious for India. Yet, the Katju-Misra judgments do pose a challenge to the investigating agencies that take the courts for granted.