Tuesday, February 08, 2011

BJP's Arun Jaitley against Supreme Court ruling on members of banned organisations

The Supreme Court gave a surprisingly liberal ruling that a person who is a member of a banned organisation cannot be deemed to be on the wrong side of the law unless he commits an illegal act. Being a member of a banned -- and therefore an illegal -- organisation is not illegal in itself. Supreme Court justices Markandey Katju and Sudha Mishra have said that mere membership of a banned organisation cannot be deemed a punishable offence.
This can be a troublesome ruling at a time when strict measures have to be taken against insurgency and separatist groups and their members, but it fulfills the liberal view of individual freedom.
BJP's Arun Jaitley has opposed the ruling and said that it is a good thing that the government will be seeking a review of the judgment. He went on to say that if the court does not overturn its verdict, then a clarificatory legislation should be brought in by the government.
When asked whether the court has based its verdict on a liberal principle, he said that a banned organisation is a challenge to the sovereignty of the state and therefore any member of such an organisation should be deemed as anti-state as well. He accepted the fact that when the Communist Party of India (CPI) and the Rashtriya Swayamsevak Sangh (RSS) were banned at different points of time, their members were arrested. He is right in this because during the freedom struggle, when the Indian National Congress was banned, its members and its leaders were arrested.
But the Supreme Court judges have taken a liberal view of the individual's right to freedom of speech. Their stand implies that as long as an individual does not cause a law and order problem, does not act out his objectionable views -- objectionable to the state and to the majority of people -- it does not matter what views he holds or even espouses. It is not surprising that justice Katju cited judgments of US courts to back his view.
The US Supreme Court had ruled that the burning of the national flag constitutes freedom of expression, which was indeed a classic liberal, constitutional stand but which frightens conservatives and constitutional right-wingers who believe in the untrammelled supremacy of the state.
Jaitley is generally a liberal in his legal views. His stance in this matter seems more in line with the party's thinking. The BJP takes a hard-line stance against insurgency and separatist groups, and there is the feeling that this would create complications in negotiations with the insurgency groups in the north-east of the country.

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