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SUPREME COURT OF INDIA
M.R. Shah, C.T. Ravikumar, Sanjay Karol, JJ.
Arup Bhuyan – Appellant
Versus
State of Assam & Anr. – Respondents
Criminal Appeal No. 889 of 2007 With Review Petition (Criminal) No. 417/2011 In Criminal Appeal No. 1383/2007 With Review Petition (Criminal) No. 426/2011 In Criminal Appeal No. 889/2007 With Special Leave Petition (Crl) No. 5971/2019 With Special Leave Petition (Crl) No. 5964/2019 With Criminal Appeal No. 1383/2007 With SLP(Crl.)...CRLMP No. 16637/2014 With Special Leave Petition (Crl.) No. 5643/2019 With Special Leave Petition (Crl.) No. 6270/2019
Decided On : 24-03-2023
Per M.R. Shah, J.
(A) Unlawful Activities (Prevention) Act, 1967 – Section 10(a)(i) – Membership of a banned organization – Implications – UAPA, 1967 has been enacted in exercise of powers conferred under Article 19(2) and (4) of Constitution of India – Aim and object of enactment of UAPA is also to provide for more effective prevention of certain unlawful activities – Notification issued by Central Government declaring a particular association unlawful, same is subject to inquiry and approval by 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 consequences and is subjected to penal provisions as provided under Section 10 more particularly Section 10(a)(i) of UAPA, 1967 – 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 unlawful activities – Section 10(a)(i) does not suffer from any vagueness and/or on the ground unreasonable and/or disproportionate. (Paras 14.2, 14.3, 14.5, 14.6 and 16.1)
(B) Unlawful Activities (Prevention) Act, 1967 – Sections 3 and 10(a)(i) – Membership of a banned organization – Implications – Once an association is declared unlawful of whom concerned person was member wishes to continue as a member despite the fact that he is well aware of fact that such an association is declared unlawful and if he still wishes to continue being a part of such unlawful association it shows a conscious decision on his part and liable to be penalized for such an act of continuation of his membership with such unlawful association – Thereafter he may not make grievance of chilling effect – 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 UAPA, 1967. (Paras 17.1 and 18)
(C) Interpretation of Statute – Reading-down Doctrine – Reading down provision of a statute cannot be resorted to when meaning of a provision is plain and unambiguous and legislative intent is clear – Reading down a particular statute even to save it from unconstitutionality is not permissible unless and until constitutional validity of such provision is under challenge and opportunity is given to Union of India to defend a particular parliamentary statute. (Para 11.4)
(D) Precedent – Reliance on American Decisions – Aid of American concepts, laws and precedents in interpretation of our laws is not always without its dangers and they have to be relied upon with some caution if not, with hesitation because of difference in nature of those laws and of institutions to which they apply – Right to freedom of speech is subject to reasonable restrictions and is not an absolute right and Constitution permits Parliament to frame laws taking into consideration public order and/or sovereignty of India, without noticing differences in American Laws and Indian laws – Court ought to have considered differences in American laws and Indian laws more particularly provisions in Indian Constitution. (Para 12.6, 13, 13.1 and 13.2)
Per Sanjay Karol, J. (Separate Assenting View)
(A) Constitution of India – Article 19(2) – Freedom of Speech and Expression – Reasonable restrictions are not limited to formation of association but extends to effective functioning of association relating to lawful objectives – Laws restricting freedoms under Article 19, must be under one of permitted heads of restrictions and must have a proximate link to it. (Paras 8 and 10)
(B) Unlawful Activities (Prevention) Act, 1967 – Section 10(a)(i) – Membership of a banned organization – Implications – American decisions primarily involve indictment on the basis of membership of political organizations or incidents of free speech advocating overthrow of government – However, under Indian law, it is not membership of political organizations etc. or free speech or criticism of government that is sought to be banned, it is only those organizations which aim to compromise sovereignty and integrity of India and have been notified to be such and unlawful, whose membership is prohibited – This is in furtherance of objective of UAPA, which has been enacted to provide for more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected therewith – Distinction is clear – UAPA provides for a system of checks and balances and public notification for any association being declared unlawful. (Paras 48 and 49)
Facts of the case:
Division Bench of this Court in the case of State of Kerala Vs. Raneef, (2011) 1 SCC 784, whilst relying upon numerous American decisions concerning freedom of speech and position on membership of banned organizations rejected the doctrine of “guilt by association” and observed 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.
Short issue before the Bench is whether Judgments in State of Kerala Vs. Raneef, (2011) 1 SCC 784 and Arup Bhuyan vs. State of Assam, (2011) 3 SCC 377, have been correctly decided and whether “active membership” is required to be proven over and above the membership of a banned organization under the UAPA, 1967. Another issue which is required to be considered by this Bench is whether American decisions concerning freedom of speech referred to in the case of Raneef (supra) to which this Court agreed could have been relied upon while considering the right to freedom of speech available under Constitution of India more particularly Article 19(1)(c) and 19(4) of the Constitution of India? Another question which is required to be considered is whether this Court was justified in reading down of a provision (Section 10(a)(i) of the UAPA Act, 1967) without impleading the Union of India as a party and more particularly when the constitutional validity of the aforesaid provision was not called in question?
Findings of Court:
Placing reliance 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.
Result : Reference answered.
JUDGMENT
M.R. Shah, J.
Present reference to the larger Bench is made against the judgment and order in the case of Arup Bhuyan v. Union of India, (2011) 3 SCC 377 as well as State of Kerala v. Raneef, (2011) 1 SCC 784, pursuant to the order passed by this Court dated 26.08.2014, reported as (2015) 12 SCC 702 .
Background of the Reference
2. That the Division Bench of this Court in the case of Raneef (supra) whilst relying upon numerous American decisions concerning freedom of speech and position on membership of banned organizations rejected the doctrine of “guilt by association” and observed 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. In paragraphs 10 to 14 this Court in the case of Raneef (supra) observed and held as under:
“10.) As regards the allegation that the respondent belongs to the PFI, it is true that it has been held in Redaul Husain Khan v. National Investigation Agency 2010 (1) SCC 521 that merely because an organization has not been declared as an `unlawful association' it cannot be said that the said organization could not have indulged in terrorist activities. However, in our opinion the said decision is distinguishable as in that case the accused was sending money to an extremist organization for purchasing arms and ammunition. That is not the allegation in the present case. The decision in State of Maharashtra v. Dhanendra Shriram Bhurle 2009(11) SCC 541 is also distinguishable because good reasons have been given in the present case by the High Court for granting bail to the respondent. In the present case there is no evidence as yet to prove that the P.F.I. is a terrorist organization, and hence the respondent cannot be penalized merely for belonging to the P.F.I. Moreover, even assuming that the P.F.I. is an illegal organization, we have yet to consider whether all members of the organization can be automatically held to be guilty.
11. In Scales v. United States 367 U.S. 203 Mr. Justice Harlan of the U.S. Supreme Court while dealing with the membership clause in the McCarran Act, 1950 distinguished between active `knowing' membership and passive, merely nominal membership in a subversive organization, and observed :
“The clause does not make criminal all association with an organization which has been shown to engage in illegal activity. A person may be foolish, deluded, or perhaps mere optimistic, but he is not by this statute made a criminal. There must be clear proof that the defendant specifically intends to accomplish the aims of the organization by resort to violence.”
12. In Elfbrandt v. Russell 384 US 17-19 (1966) Justice Douglas of the U.S. Supreme Court speaking for the majority observed :
“Those who join an organization but do not share its unlawful purpose and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. A law which applies to membership without the `specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of `guilt by association' which has no place here.”
13. In Joint Anti-Fascist Refugee Committee v. McGrath 341 US 123 at 174 (1951) Mr. Justice Douglas of the U.S. Supreme Court observed :
“In days of great tension when feelings run high, it is a temptation to take shortcuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within.”
14. We respectfully agree with the above decisions of the U.S. Supreme Court, and are of the op
(1) Once an association is declared unlawful of whom concerned person was member wishes to continue as a member despite the fact that he is well aware of fact that such an association is declared unl....
The court emphasized that bail applications under the UAPA require consideration of prima facie evidence and the severity of the accusations against the accused; strict adherence to statutory provisi....
Point of Law : Action of the Central Government would be covered under the exception of Article 19 (4) of the Constitution of India - Immediate action appears to have been taken in the interest of so....
Rejection of application of Bail – Rioting/violence – Protest against the CAA -Petitioner Intended to paralyse the governance of Delhi by violent means to force the Union Govt, to withdraw CAA
The Unlawful Activities (Prevention) Act, 1967 remains constitutionally valid, and legislative authority regarding preventive detention is upheld despite the non-notification of amendments.
The court held that a lack of 'clear and present danger' can justify granting bail under UAPA, even when a prima facie case exists, emphasizing the importance of protecting fundamental rights.
The absence of direct evidence linking accused to terrorist activities undermines prima facie accusations, warranting bail despite membership in a banned organization.
Sections 17 read as punishment for raising funds for terrorist act.
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