Supreme Court: In a reference made on behalf of the Union of India and the State of Assam to larger bench, against the judgment and order passed in Arup Bhuyan v. Union of India, (2011) 3 SCC 377 as well as State of Kerala v. Raneef, (2011) 1 SCC 784, pursuant to the order passed by this Court in Arup Bhuyan v. State of Assam, (2015) 12 SCC 702, the full bench comprising of M.R. Shah*, C.T Ravikumar and Sanjay Karol*, JJ. held that when an association is declared unlawful by notification issued under Section 3 Unlawful Activities and Prevention Act, 1967 (‘UAPA’) 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. Thus, Section 10(a)(i) UAPA was held to be constitutional. Further, it is held that any other decisions of the High Court taking a contrary view is not good law and were specifically overruled by this Judgment.
Whether the judgments in Raneef (supra) and Arup Bhuyan (supra), have been correctly decided and whether “active membership” is required to be proven over and above the membership of a banned organisation under the UAPA?
The Court took note of Section 10(a)(i) UAPA and said that in the case of Raneef (supra), it appears and cannot be disputed that the Court was considering a bail application. The constitutional validity of Section 10(a)(i) was not under challenge before this Court. It was also noted that even the Union was not a party and/or the Union was not even heard while deciding the case of Raneef (supra). Despite that this Court while deciding the bail application, observed that “mere membership of a banned organisation will not make a person a criminal and/or mere membership of a banned organisation cannot be an offence”.
Further, it noted that in Arup Bhuyan (Supra), this Court after referring to the decisions of the US Supreme Court, had read down Section 3(5) of TADA and has observed that “mere membership of a banned organisation 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 resorting to violence”
The Court said that while deciding Arup Bhuyan (supra) neither the constitutional validity of Section 3(5) of the TADA was in question, nor the Union of India was heard. Even in both the aforesaid decisions this Court had not taken into consideration Article 19(1)(c) and Article 19(4) of the Constitution of India. Further, Indra Das v. State of Assam, (2011) 3 SCC 380 has just followed the earlier decision in the case of Raneef (supra) and Arup Bhuyan (supra).
The Court said that reading down of Section 10(a)(i) UAPA, 1967 by this Court in the case of Arup Bhuyan (supra) is concerned, it could not have been made without hearing the Union of India and/or without giving any opportunity to the Union. When any provision of Parliamentary legislation is read down in the absence of Union, it is likely to cause enormous harm to the interest of the State.
Placing reliance on Subramanian Swamy v. Raju, (2014) 8 SCC 390, wherein it was held that 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 Therefore, the Court said that, in absence of any challenge to the constitutional validity of Section 10(a)(i) UAPA, 1967 there was no occasion for this Court to read down the said provision, 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.
Whether American decisions concerning freedom of speech, referred to in the case of Raneef (supra) to which Supreme Court agreed could have been relied upon, while considering the right to freedom of speech available under the Constitution of India more particularly Article 19(1)(c) and 19(4) of the Constitution?
The Court referred to various cases, wherein it observed that there are structural differences in the Constitution of India and the Constitution of the United States of America. Further, after considering the different position of laws in US and in India, more particularly concerning 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, the Court said that without noticing the differences in American Laws and the Indian laws, this Court in Arup Bhuyan (supra) and Raneef (supra) has erred in directly following the US Supreme Court decisions and that too without adverting to the differences and the position of laws in India.
The Court said that in these two decisions without noticing the differences of the US Supreme Court, this Court has just followed the American decisions, and further opined that this Court should have considered the differences in the American laws and the Indian laws, more particularly the provisions in the Indian Constitution. However, the Court clarified that it is not saying that, in a given case the US Supreme Court decisions may not be taken into consideration and/or may not be a guidance, but before following the American decisions, the Indian Courts are required to consider the difference in the nature of the laws applicable in the respective countries.
Whether Supreme Court was justified in reading down of a provision, Section 10(a)(i) of the UAPA Act, 1967 without impleading the Union of India as a party and more particularly when the constitutional validity of the aforesaid provision was not called in question?
The Court referred to relevant provisions of the Constitution of India and of the UAPA, 1967, and said that the rights guaranteed under Article 19(1)(a) and under Article 19(1)(c) are not absolute rights but are subject to reasonable restrictions as per Article 19(2) and 19(4) of the Constitution of India. Further, the UAPA, 1967 has been enacted in exercise of powers conferred under Article 19(2) and (4) of the Constitution of India. It noted that exceptions to the freedom to form associations under Article 19(1) was inserted in the form of sovereignty and integrity of India under Article 19(4). Thus, the UAPA has been enacted to make powers available for dealing with the activities directed against integrity and sovereignty of India.
The Court further referred to the preamble of UAPA and said that the aim and object of enactment of UAPA is to provide for more effective prevention of certain unlawful activities. Therefore, the Parliament had thought it fit that once an association is declared unlawful after following due procedure as required under Section 3 of UAPA, and subject to the approval by the Tribunal still a person continues to be a member of such association is liable to be punished/penalised under Section 10 more particularly Section 10(a)(i) of the UAPA, 1967. Further, before any organisation is declared unlawful, a detailed procedure is required to be followed, including wide publicity and even the right to a member of such an association to represent it before the Tribunal. It also noted that a particular association is declared unlawful only after the Central Government is satisfied that such association is indulging to unlawful activity and the same is against sovereignty and integrity of India.
The Court noted that as per Section 10(a)(i), a person cannot be punished merely because he was the member of such unlawful association, however, after interpreting the said Section it observed that once an association is declared unlawful, and that the person concerned was aware of that and despite that if he still wishes to continue being a part of such unlawful association shows a conscious decision on his part and therefore he will liable to be penalised for such an act of continuation of his membership with such unlawful association. Therefore, thereafter he may not make grievance of chilling effect.
Thus, the Court said that the decisions in State of Kerala v. Raneef, (2011) 1 SCC 784; Arup Bhuyan v. Union of India, (2011) 3 SCC 377 and Sri Indra Das v. 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) UAPA mere membership of a banned organisation will not incriminate a person unless he resorts to violence, and reading down the said provisions to mean that over and above the membership of a banned organisation 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.
[Arup Bhuyan v State of Assam, Criminal Appeal No. 889 of 2007, decided on 24-03-2023]
*Judgment by: Justice MR Shah and Justice Sanjay Karol
Advocates who appeared in this case :
For Union of India: Solicitor General Tushar Mehta
For State of Assam: Senior Counsel Vinay Navare
For appellant: Senior Counsel Sanjay Parikh