The Supreme Court on Friday ruled that membership in an organisation that the Central government has deemed illegal is sufficient to qualify as an offence under the Unlawful Activities Prevention Act (UAPA).
As a result, Section 10(a)(i) of the UAPA, which had previously been read down by a division bench of the Court in 2011, was sustained by the bench comprising Justices MR Shah, CT Ravikumar, and Sanjay Karol.
While upholding Section 10(a)(i) of UAPA, the SC declared that membership of an unlawful association is enough to constitute an offence.
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“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 that appeared before the Court was whether provisions of Central legislation could be read down in a case where the same was not assailed, and without having heard the Central government. On this, 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.”
Notably, the Bench also recognised the reliance placed on United States’ court judgments by the apex court in its 2011 judgments that read down the provision. The SC noted,
“This Court in Arup Bhuyan and in Raneef case has referred to US cases without relying on Indian case and differences…Thus this Court followed US decisions, which we are not agreeable with. We do not say for a moment that the United States Supreme Court decisions may not guide us…But Indian courts are required to consider differences in the nature of laws between two countries.”
Arup Bhuyan and Indra Das were exonerated in 2011 by a court bench comprising Justices Markandey Katju and Gyan Sudha Mishra for violations of the Terrorist and Disruptive Activities (Prevention) Act (TADA).
The top court had opined that the TADA court had relied on a purported confession statement and that conviction for merely belonging to an organisation that was prohibited by the Act could not stand.
In its 2011 ruling, the SC had observed 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.”
The Supreme Court stated in 2014 that a larger bench should consider the three cases since they involved more complicated issues. The result was the current reference.
The Union government and certain state governments argued that the top court’s interpretation of the UAPA decisions had effectively read down the aforementioned proviso by using the American Bill of Rights, making it more difficult to combat terrorism.
The Central Government contended that the Court could not read down the terms of an anti-terror statute without hearing its views and by relying on potential legal abuse. 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 that ” … 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 the 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.”
For the Central government, Solicitor General Tushar Mehta had argued that it was inherently difficult to demonstrate formal participation in prohibited groups. The conditions listed were a deterrent and a precaution, he continued. The SG emphasised that under the current system, terrorist activities will go below the radar of security agencies provided it isn’t purportedly carried out in the name of banned or terrorist organisations.
Senior Advocate Sanjay Parikh argued that provisos could be read down in cases affecting fundamental rights like personal liberty even when they are not directly challenged. He was speaking on behalf of an intervenor-NGO.
He argued that as civil freedoms are protected by the Indian as well as US constitutions, it would be improper to invalidate the earlier ruling solely for its reliance on US court judgements.
