UAPA| Mere Membership Of Unlawful Organization Is An Offence- SC Overrules 2011 Precedents [Read Judgment]

A Supreme Court Bench of Justice MR Shah, Justice CT Ravikumar, and Justice Sanjay Karol has overruled its 2011 judgments to hold that mere membership of a banned association is sufficient to constitute an offence under the Unlawful Activities (Prevention) Act 1967.

Solicitor General Tushar Mehta appeared for the Union of India, while Senior Counsel Vinay Navare appeared for the State of Assam.  Senior Counsel Sanjay Parikh appeared for the appellant.

In this case, a reference to a larger Bench was made against the judgment and order passed in the case of Arup Bhuyan vs Union of India and State of Kerala vs Raneef. 

The Supreme Court in the case of State of Kerala vs Raneef, rejected the doctrine of "guilt by association" and observed that mere membership of a banned organization would 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. The Court reached the same conclusion in the case of Arup Bhuyan vs Union of India, while relying on the Raneef case.

Notably, the Court relied on judgments from the American Supreme Court in both cases. Further, the Union of India had not been impleaded as a party before reading down Section 10(a)(i) of the UAPA.

The main issue before the Supreme Court was whether the judgments in Raneef and Arup Bhuyan had been correctly decided and whether "active membership" must be proven over and above the membership of a banned organization under the UAPA, 1967. 

The Supreme Court noted that "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. If the opportunity would have been given to the Union of India to put forward its case on the provisions of Section 10(a)(i) of the UAPA, 1967, the Union of India would have made submissions in favour of Section 10(a)(i) of the UAPA including the object and purpose for enactment of such a provision and even the object and purpose of UAPA."

In the same context, the Court observed that there was no challenge to the constitutional validity of Section 10(a)(i) of UAPA, 1967, and therefore, there was no occasion for this Court to read down the said provision.

Subsequently, it was held that the Court should not 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.

Further, the Court relied on a catena of judgments to take the considered view that "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."

Therefore, it was held that the Court should not have just followed the American decisions, and should have considered the differences between the American laws and the Indian laws.

The Court proceeded to observe that "the object and purpose of the enactment of UAPA is to provide for more effective prevention of certain unlawful activities. To punish such a person who is continued as a member of such unlawful association which is declared unlawful due to unlawful activities can be said to be in furtherance of providing for effective prevention of the unlawful activities. Therefore, as such Section 10(a)(i) which provides that where an association is declared unlawful by a notification issued under Section 3 which has become effective under sub-section 3 of that Section, a person who is and continues to be a member of such association shall be punishable with imprisonment for a term which may extend to 2 years and shall also be liable to fine, can be said to be absolutely in consonance with Article 19(1)(2) & (4) of the Constitution of India and can be said to be in furtherance of the object and purpose for which the UAPA has been enacted."

Consequently, it was held that the judgments in Arup Bhuyan and Raneef were bad in law and were overruled. Therefore, the validity of Section 10(a)(i) of the UAPA was upheld.

Cause Title: Arup Bhuyan v. State of Assam & Anr.

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