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) as reported by Bar &bench.
In doing so, Supreme Court 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.
UAPA 2011 Judgements
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.
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 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.
Solicitor 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.