2023 (3) TMI 1459 - SC - Indian Laws

As per M.R. SHAH, J. Rejection of doctrine of guilt by association - whether 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 or not. This Court in the present reference is required to consider the correctness of the decisions of this Court in STATE OF KERALA VERSUS RANEEF 2011 (1) TMI 1396 - SUPREME COURT , Arup Bhuyan 2011 (2) TMI 1627 - SUPREME COURT and Indra Das Singh 2011 (2) TMI 1507 - SUPREME COURT . HELD THAT - The constitutional validity of Section 10 more particularly Section 10(a)(i) of the UAPA, 1967 was not under challenge before this Court. It is also required to be noted that even the Union of India was not a party and/or the Union of India was not even heard while deciding the case of Raneef. Despite the above, this Court while deciding the bail application has made certain observations that mere membership of a banned organization will not make a person a criminal and/or mere membership of a banned organization cannot be an offence. In the case of Raneef this Court has heavily relied upon and followed the American Supreme Court decisions which were dealing with the relevant provisions of the American Laws and/or the laws prevailing in the America. Now so far as the reading down of Section 10(a)(i) of the UAPA, 1967 by this Court in the case of Arup Bhuyan is concerned, at the outset it is required to be noted that such reading down of the provision of a statute could not have been made without hearing the Union of India and/or without giving any opportunity to the Union of India. 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 - Even otherwise in absence of any challenge to the constitutional validity of Section 10(a)(i) of the UAPA there was no question of reading down of the said provision by this Court. Therefore, in absence of any challenge to the constitutional validity of Section 10(a)(i) of UAPA, 1967 there was no occasion for this Court to read down the said provision. As observed and held by this Court in the case of Joseph Kuruvilla Vellukunnel 1962 (3) TMI 78 - SUPREME COURT , the aid of American concepts, laws and precedents in the interpretation to which laws is not always without its dangers and they have therefore to be relied upon with some caution if not with hesitation because of the difference in the nature of those laws and the institutions to which they apply. Whether Section 10(a)(i) is required to be read down so as to save the said provision from being declared unconstitutional and is required to be read down as had been done in the case of Arup Bhuyan 2011 (2) TMI 1627 - SUPREME COURT and Raneep 2011 (1) TMI 1396 - SUPREME COURT that 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 meaning thereby over and above the membership of a banned organization there must be a mens rea required to be established and proved and/or there must be a further overt act? - HELD THAT - The rights guaranteed Under Article 19(1)(a) (Right to freedom of speech and expression) and Under Article 19(1)(c) (Right to form association or unions) are not absolute rights, but are subject to reasonable restrictions as per Article 19(2) and 19(4) of the Constitution of India. Article 19(2)(3) (4) have been amended vide the Constitution (Sixteenth Amendment) Act, 1963 and the words sovereignty and integrity of India have been inserted. Therefore, as per Article 19(2)(3) (4) nothing in Clause (a), (b) and (c) of Clause 1 of Article 19 shall affect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercises of the right conferred by the said sub-clauses in the interests of sovereignty and integrity of India, the security of State - As per Article 19(4) nothing in Sub-clause (c) (Right to form Associations or Unions) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause. At this stage the statement of objects and reasons for amending Article 19(2)(3) (4) are required to be referred to and considered. Before any organization is declared unlawful a detailed procedure is required to be followed including the wide publicity and even the right to a member of such association to represent before the Tribunal. As observed hereinabove the notification issued by the Central Government declaring a particular association unlawful, the same is subject to inquiry and approval by the Tribunal as per Section 4. Once that is done 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. It is observed and held that 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. Reference is answered accordingly. Consequently, the Review applications filed by the Union of India and the State of Assam are hereby allowed. As Per Sanjay Karol, J. Whether the Hon'ble Division Bench in Arup Bhuyan v. State of Assam 2011 (2) TMI 1627 - SUPREME COURT and similarly in Sri Indra Das v. State of Assam 2011 (2) TMI 1507 - SUPREME COURT was correct in placing reliance on American decisions stating that the decisions apply to India too, as our fundamental rights are similar to the Bill of Rights in the US Constitution to read down Section 3(5) of Terrorist and Disruptive Activities Prevention Act, 1987/Section 10 of Unlawful Activities (Prevention) Act, 1967 (hereafter referred to as UAPA)? - HELD THAT - 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, which has been enacted to provide for the more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected therewith. The distinction, therefore, is clear. Furthermore, the UAPA provides for a system of checks balances and public notification for any association being declared unlawful Section 3 of the Act, states that the Central Government must publish a notification declaring an unlawful association in the Official Gazette and Daily Newspaper in the State in which the principal office of the association affected is situated. Furthermore, the Association must be notified by affixing a copy on its office or by serving its office bearers or by means of loudspeakers. Under Section 4 of the Act, any notification Under Section 3 of the Act, shall be adjudicated upon by the Tribunal for the purpose of whether or not there is sufficient cause for declaring the association unlawful. In this adjudication, the association is given an opportunity to be heard. Section 5 provides for setting up this UAPA Tribunal, to which no person shall be appointed unless he is a Judge of a High Court. Under Section 10 of the Act, which may be termed as the genesis if the present controversy to be adjudicated upon, in my understanding is forthcoming in its meaning. Is and continues to be implies that a person, even after the organization being so notified as unlawful, is and continues to be a member, would attract penalty under the said section. The use of the conjunction and means that both of the abovementioned conditions have to be satisfied. It is thus concluded that placing reliance therefore, on decisions rendered in a distinct scenario as well as a demonstrably different constitutional position, that too almost singularly, especially in cases which involve considerations of national security and sovereignty, was not justified. Reference answered.

Summary

Issues Involved:
1. Whether the judgments in Raneef (2011) and Arup Bhuyan (2011) were correctly decided.
2. Whether "active membership" needs to be proven over and above mere membership of a banned organization under UAPA, 1967.
3. Applicability of American decisions concerning freedom of speech to the Indian context.
4. Whether the Court was justified in reading down Section 10(a)(i) of UAPA, 1967 without hearing the Union of India.
5. Constitutionality and interpretation of Section 10(a)(i) of UAPA, 1967.

Summary:

1. Correctness of Judgments in Raneef and Arup Bhuyan:
The Supreme Court examined whether the judgments in Raneef and Arup Bhuyan were correctly decided. It was noted that both cases relied heavily on American jurisprudence to reject the doctrine of "guilt by association" and held that mere membership of a banned organization does not incriminate a person unless they resort to violence or incite violence. The Court observed that these judgments did not consider the specific provisions of the Indian Constitution, particularly Articles 19(1)(c) and 19(4), and the legislative intent behind UAPA, 1967.

2. Active Membership Requirement:
The Court addressed whether "active membership" needs to be proven over mere membership of a banned organization under UAPA, 1967. It was held that Section 10(a)(i) of UAPA, 1967 does not require proving active membership or additional overt acts. The Court emphasized that once an organization is declared unlawful, continuing to be a member of such an organization itself constitutes an offense under the Act.

3. Applicability of American Decisions:
The Court scrutinized the reliance on American decisions in Raneef and Arup Bhuyan. It was noted that the American legal framework, particularly the First Amendment, differs significantly from the Indian Constitution, which allows for reasonable restrictions on fundamental rights in the interests of sovereignty, integrity, and public order. The Court concluded that the American doctrine of "clear and present danger" and similar principles are not applicable to the Indian context.

4. Reading Down Section 10(a)(i) Without Hearing Union of India:
The Court found that the judgments in Raneef and Arup Bhuyan read down Section 10(a)(i) of UAPA, 1967 without hearing the Union of India or challenging the constitutionality of the provision. It was held that such reading down was impermissible and caused harm to the interests of the State. The Court emphasized that any reading down of statutory provisions must involve hearing all relevant parties, including the Union of India.

5. Constitutionality and Interpretation of Section 10(a)(i):
The Court upheld the constitutionality of Section 10(a)(i) of UAPA, 1967, stating that it aligns with the reasonable restrictions permitted under Articles 19(2) and 19(4) of the Constitution. The provision was found to be in furtherance of the objective of UAPA, which aims to prevent unlawful activities against the sovereignty and integrity of India. The Court clarified that the language of Section 10(a)(i) is clear and does not suffer from vagueness or overbreadth.

Conclusion:
The Supreme Court overruled the judgments in Raneef, Arup Bhuyan, and Indra Das to the extent they held that mere membership of a banned organization does not incriminate a person unless they resort to violence or incite violence. It was held that continuing membership of a banned organization is sufficient to attract penal provisions under Section 10(a)(i) of UAPA, 1967. The reference was answered accordingly, and the review applications by the Union of India and the State of Assam were allowed.