No Vagueness In UAPA Provision Criminalising Membership Of Banned Organisation; No Chilling Effect : Supreme Court

While upholding Section 10(a)(i) of the Unlawful Activities (Prevention) Act 1967, which makes membership of an unlawful organisation an offence, the Supreme Court held that the provision is not vague or unreasonable.

The Court also overruled its 2011 judgments in Arup Bhuyan vs State of Assam, Indra Das vs State of Assam and State of Kerala vs Raneef which held that mere membership of a banned association is not sufficient to constitute an offence under the Unlawful Activities (Prevention) Act 1967 or the Terrorism and Disruptive Activities (Prevention) Act, unless it is accompanied with some overt violent.

Senior Advocate Sanjay Parikh, appearing for the People's Union for Democratic Rights, had raised an argument that Section 10(a)(i) is liable to be struck down due to its vagueness. It was argued that membership was a vague term and hence the possibility of innocent persons getting implicated under the draconian law could not be ruled out.

A bench comprising Justices MR Shah, CT Ravikumar and Sanjay Karol rejected the argument. The judgment authored by Justice MR Shah noted that an organization is declared as unlawful after following an elaborate process.

"A person who is a member of such an unlawful association is as such aware of the declaration of such association as unlawful and despite the same if he still continues to be the member of such unlawful association which is indulging into the unlawful activities and acting against the sovereignty and integrity of India, his intention is very clear that he still wants to associate with such an association which is indulging into ‘unlawful activities’ and acting against the interests of sovereignty and integrity of India", Justice Shah wrote in the judgment. It was held that the language used in the section is very clear and there is no vagueness at all.

"Section 10(a)(i) does not suffer from any vagueness and/or on the ground unreasonable and/or disproportionate", the judgment stated.

No chilling effect

The Court also rejected the argument that the provision created a chilling effect on the right to freedom of speech and freedom of association.

In this regard, the judgment noted :

"...it is required to be noted that a person knowing full well that an association of which he is the member is declared as unlawful association due to its unlawful activities and acting against the interests of sovereignty and integrity of India and still he continues to be a member of such unlawful association thereafter such person cannot be permitted to submit on chilling effect. The consequences are provided under the Act itself. Such a person is made to understand and/or known that to continue with the membership of such unlawful association itself is an offence. Despite such knowledge still he continues then is liable to be punished".

Misplaced reliance on US judgments 

Justice Sanjay Karol wrote a separate concurring judgment. In his judgment, Justice Karol explained that the the 2-judge bench in Arup Bhuyan, Indra Das and Raneef cases erred in placing reliance on US Supreme Court decisions to hold that passive membership of a banned association cannot be an offence.

"The American decisions primarily involve indictment on the basis of membership of political organizations or incidents of free speech advocating overthrow of the government. However, under Indian law, it is not membership of political organizations etc. or free speech or criticism of the government that is sought to be banned, it is only those organizations which aim to compromise the sovereignty and integrity of India and have been notified to be such and unlawful, whose membership is prohibited. This is in furtherance of the objective of the UAPA, which has been enacted to provide for the more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected therewith", Justice Karol wrote.

Justice Shah's judgment also stated that the reliance on the US Supreme Court decisions were misplaced, "considering the different position of laws in US and in our country more particularly faced with Articles 19(1)(c) and 19(4) of the Constitution of India under which the right to freedom of speech is subject to reasonable restrictions and is not an absolute right".

Case Title : Arup Bhuyan vs State of Assam

Citation : 2023 LiveLaw (SC) 234

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