Guilt by Association, and Its Limits

In one line

The law punishes what a person does within a group, not the fact that he belongs to it, and where a statute punishes belonging alone it comes under constitutional pressure.

In the wording a student can write in an exam: the group liability provisions all require something more than association, namely a shared plan and participation for common intention, membership with knowledge of the facts for common object, an act of instigation or aid for abetment, and an agreement for conspiracy; mere presence at a crime and mere presence in a crowd are both insufficient; and where a special statute makes membership of an organisation an offence in itself, the courts have read into it a requirement of active participation or incitement, because a provision punishing belonging alone would infringe the freedom of association.

The three "meres"

Mere presence at a crime. A person who watches an offence commits nothing, unless he was under a legal duty to prevent it or unless his presence was itself a form of participation. The Postmaster case is often misread as deciding the contrary; it did not. The appellant there was an armed member of a party that had come to commit a dacoity, posted at the door.

Mere presence in an assembly. Baladin v. State of Uttar Pradesh, AIR 1956 SC 181, decided on 18 October 1955.

Facts. An attack on the house of a refugee family in a village where the original inhabitants were hostile to the newcomers. The scene was surrounded on all sides by the houses of the appellants. Some accused were convicted although no witness attributed any specific act to them.

Held. Mere presence in an assembly does not make a person a member of an unlawful assembly unless it is shown that he did something or omitted something which would make him a member, or unless the case falls within the provision defining membership. Where the place of occurrence was surrounded by the appellants' own houses, members of their families and other residents who assembled could not be condemned as members without evidence that each had done or was committing some overt act in prosecution of the common object.

Why it matters here. It is the safeguard, and it is the answer to a prosecution that charges a crowd.

But it is not unqualified. Masalti v. State of Uttar Pradesh, AIR 1965 SC 202, decided on 4 May 1964.

Facts. Forty persons of a village faction were tried for murdering five of the other faction with guns. Thirty-five were convicted and the ten who carried firearms were sentenced to death; the High Court acquitted seven and confirmed the death sentences; sixteen appealed.

Held. The punishment under the common object provision is in a sense vicarious, and the section does not necessarily require that the offence be actually committed by every member. The observations in Baladin had to be read in the context of that case and could not be treated as laying down an unqualified proposition of law. It was not improper, in a case with many offenders and victims, to adopt the test that a conviction could be sustained only if a stated number of witnesses gave a consistent account against the accused, a test mechanical but not unreasonable.