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 uponThe 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 AssamCitation : 2023 LiveLaw (SC) 234Unlawful 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, 18Reliance 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...

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

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