Mere Membership Of Unlawful Organization Is UAPA Offence : Supreme Court Overrules 2011 Precedents

In a significant verdict, the Supreme Court on Friday 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.

A bench comprising Justices MR Shah, CT Ravikumar and Sanjay Karol also upheld Section 10(a)(i) of the UAPA which makes membership of an association, which has been declared to be unlawful, to be an offence.

The 2011 judgment in Arup Bhuyan was delivered by a 2-judge bench comprising Justices Markandeya Katju and Gyan Sudha Mishra while deciding a bail application under TADA filed by a person accused of being a member of ULFA. "Mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence", the bench had held. Earlier, in State of Kerala vs Raneef(2011), while deciding a bail application under the UAPA, the same bench had taken the same view. Same view was taken in Indra Das too by the same bench.

In 2014, a 2-judge bench comprising Justices Dipak Misra and AM Sapre referred the matter to a larger bench, after the Union Government filed an application seeking reference on the ground that the interpretation was given to the central legislations without hearing the Union.

The 3-judge bench commenced hearing the reference on February 8 and reserved the judgment on next day, after hearing Solicitor General of India Tushar Mehta, Senior Advocate Sanjay Parikh (for an intervenor NGO).

What was held in the reference?

While delivering the judgment today, the bench held that the 2011 judgements were passed in bail applications, where the constitutionality of the provisions were not called in question. Also, the constitutional validity of the UAPA and TADA were upheld in earlier judgments.

The bench also faulted the 2011 judgments for reading down the provisions without hearing the Union of India. "When a Parliamentary legislation is read down in the absence of the Union, enormous harm would be caused to State if they are not heard", the bench observed.

Also, reading down of a provision is not permissible when the language of a section is plain and clear. "In view of the above section 10(a)(i) should not have read down by this court especially when the constitutional validity of the section was not in question", Justice Shah read out from the judgment.

US decisions could not have been relied upon

The bench further held that the 2-judge bench made a mistake by relying on US Supreme Court judgments, as the right to freedom of speech and  association as per the Indian Constitution is subject to reasonable restrictions.

"We do not say for a moment that US Supreme Court decisions may not guide us. But Indian courts are required to consider the difference in nature of laws between two countries", the bench observed.

Section 10(a)(i) is constitutional

"Section 10(a)(i) is absolutely in consonance with 19(1)(a) and 19(2) of the constitution and thus in consonance with the objectives of the UAPA", Justice Shah read out the operative portion of the judgment.

The bench noted that the provision has been enacted in furtherance of the interests of sovereignty and integrity of the nation, which are grounds of reasonable restrictions under Article 19.

The 3-judge bench has declared the judgments in Arup Bhuyan, Indra Das and Raneef to be bad in law. Also, the High Courts which followed these precedents were overruled as bad in law.

"Really grateful, this will be a historic judgment to protect the sovereignty of the country", Solicitor General Tushar Mehta said after the pronouncement.

Case Title : Arup Bhuyan vs State of Assam

Citation : 2023 LiveLaw (SC) 234

Unlawful Activities (Prevention) Act 1967 - Upholds the Constitutionality of Section 10(a)(i)- Overrules the 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-Court ought not to have read down Section 10(a)(i) of the UAPA, 1967 more particularly when neither the constitutional validity of Section 10(a)(i) of the UAPA, 1967 was under challenge nor the Union of India was heard- Para 11.5, 18

Reliance of foreign judgments- 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 and the constitution permits the Parliament to frame the laws taking into consideration the public order and/or the sovereignty of India, without noticing the differences in American Laws and the Indian laws, this Court in the case of Arup Bhuyan (supra) and Raneep (supra) has erred in straightway and directly following the US Supreme Court decisions and that too without adverting to the differences and the position of laws in India- Para 13

Unlawful Activities (Prevention) Act 1967 - Section 10(a)(i)- Once an organization is declared unlawful after due procedure and despite that a person who is a member of such unlawful association continues to be a member of such unlawful association then he has to face the consequences and is subjected to the penal provisions as provided under Section 10 more particularly Section 10(a)(i) of the UAPA, 1967- Para 14.5

Unlawful Activities (Prevention) Act 1967 - Section 10(a)(i)- mere possibility of misuse cannot be a ground and/or relevant consideration while considering the constitutionality - Para 16

Unlawful Activities (Prevention) Act 1967 - Section 10(a)(i)-Section 10(a)(i) does not suffer from any vagueness and/or on the ground unreasonable and/or disproportionate - Para 16.1

Unlawful Activities (Prevention) Act 1967- the view taken by this Court in the cases of State of Kerala vs. Raneef, (2011) 1 SCC 784; Arup Bhuyan vs. Union of India, (2011) 3 SCC 377 and Sri Indra Das vs. State of Assam 2011 (3) SCC 380 taking the view that under Section 3(5) of Terrorists and Disruptive Activities (Prevention) Act, 1987 and Section 10(a)(i) of the Unlawful Activities (Prevention) Act, 1967 mere membership of a banned organization will not incriminate a person unless he resorts to violence or incites people to violence and does an act intended to create disorder or disturbance of public peace by resort to violence and reading down the said provisions to mean that over and above the membership of a banned organization there must be an overt act and/or further criminal activities and adding the element of mens rea are held to be not a good law- Para 18

Unlawful Activities (Prevention) Act 1967- When an association is declared unlawful by notification issued under Section 3 which has become effective of sub-section 3 of that Section, a person who is and continues to be a member of such association is liable to be punished with imprisonment for a term which may extend to two years, and shall also be liable to fine under Section 10(a)(i) of the UAPA, 1967- Para 18.

Interpretation of Statutes - When any provision of Parliamentary legislation is read down in the absence of Union of India it is likely to cause enormous harm to the interest of the State - Para 11.2- reading down the provision of a statute cannot be resorted to when the meaning of a provision is plain and unambiguous and the legislative intent is clear- Para 11.4

Click Here To Read/Download Judgment