Mere membership of unlawful association sufficient to constitute an offence under UAPA: Supreme Court upholds Section 10(a)(i)

The Supreme Court on Friday held that holding membership of an association declared unlawful by the Central government is sufficient to constitute an offence under the Unlawful Activities Prevention Act (UAPA) [Arup Bhuyan v. State of Assam Home Department and anr]..In doing so, the Bench of Justices MR Shah, CT Ravikumar and Sanjay Karol upheld the validity of Section 10(a)(i) of the UAPA, which was earlier read down by a division bench of the Court in 2011."Aim of UAPA is to prevent certain unlawful activities and prevent the same...at the cost of repetition, UAPA is to punish the person a member of an unlawful organisation in furtherance of the provisions of the UAPA...Thus Section 10(a)(i) is absolutely in consonance with Articles 19(1)(a) and 19(2) of the Constitution and thus in consonance with the objectives of the UAPA," the Bench held..Another question before the Court was whether provisions of a Central legislation could be read down in a case where the same was not assailed, and without having heard the Central government. On this aspect, the Court held,"Enormous harm would be caused to State if they are not heard...and Centre should have made submissions to justify 10(1)(i) and what were the objects and purposes...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.".Pertinently, the Bench also took note of the reliance placed on United States court judgments by the apex court in its 2011 judgments that read down the provision. It held,"In the aforesaid two decisions without noticing the differences of the US Supreme Court (referred to in the said decisions) this Court has just followed the American decisions to which we are not agreeable. This Court ought to have considered the differences in the American laws and the Indian laws more particularly the provisions in the Indian Constitution. By the aforesaid we do not say for a moment that in a given case the US Supreme Court decisions may not be taken into consideration and/or may not be a guidance. 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.".Justice Karole in a separate but concurring opinion said that the US decisions relied on coud not apply to the Indian scenario."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", it was explained..BackgroundIn 2011, a Bench of Justices Markandey Katju and Gyan Sudha Mishra had acquitted one Arup Bhuyan, and soon after, one Indra Das, for offences under the Terrorist and Disruptive Activities (Prevention) Act (TADA).The top court had held that the TADA court had relied on an alleged confession statement, and mere membership of a banned organisation under the Act could not be ground for conviction.Pertinently, the 2011 Bench, relying on its decision in State of Kerala v. Raneef as well as the American Bill of Rights and some US Supreme Court rulings, had observed in the context of the TADA Act that,"In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution...Hence, 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."In 2014, the Supreme Court had observed that the larger issue in three cases should be heard by a larger bench. This led to the present reference..The Union government and some state governments contended that the said proviso was effectively read down by relying on the American Bill of Rights, thus hampering the tackling of terrorism since UAPA cases were also being affected by the top court's interpretation.The Central government argued that the Court could not read down the provisions of an anti-terror legislation without hearing its arguments, and by relying on possible abuse of the law.It was that the Court's reliance on the Bill of Rights was misplaced, given the top court's earlier five-judge bench decision in Babulal Parate v. State of Maharashtra in which it was held," ... American doctrine cannot be imported under our Constitution because the fundamental rights guaranteed under Art. 19 (1) of the Constitution are not absolute rights but, as pointed out in State of Madras ... are subject to the restrictions placed in the subsequent clauses of Art. 19. There is nothing in the American Constitution corresponding to cls. (2) to (6) of Art. 19 of our Constitution.".ArgumentsSolicitor General Tushar Mehta, appearing for the Central government, had argued that official membership of banned organisations was anyways difficult to prove. The provisos read down were a deterrent and preventive measure, he added.The SG had stressed that the current scheme of things could allow terrorist activity if allegedly not done under the banner of banned/terrorist organisations.Senior Advocate Sanjay Parikh, appearing for an intervenor-NGO, had argued that in matters involving susbtantive rights like personal liberty, provisos could be read down even when not under direct challenge.He had submitted that civil liberties are a part of both Indian and American Constitutions, and therefore, it would be wrong to nullify the orders under challenge merely for relying on US court judgments..[Read judgment]