Mere membership of an unlawful association is sufficient to constitute an offence under the stringent provisions of the Unlawful Activities (Prevention) Act (UAPA), 1967, the Supreme Court ruled on Friday, overruling a 2011 verdict by a 2-judge bench.
“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,” said to the 2011 verdict.
However, a three-judge bench led by Justice MR Shah noted that the UAPA aimed to prevent certain unlawful activities and to punish 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,” it said, upholding the validity of the provision that gave wider powers to probe agencies to deal with those associated with organisations declared unlawful under the anti-terror Act.
Supreme court revised its verdict
The top court had on February 9 reserved its verdict on a reference made in 2014 by a two-judge bench in view of judgments in two cases decided by a bench led by Justice Markandey Katju (since retired) that negated the theory of guilt by association.
The bench noted that the Centre needed to be heard and given an opportunity to put forward its case regarding the intent of Parliament. “This is missing from the verdicts. This court had not said that the Union of India is not required to be heard in the matter,” it had said, adding that some representation was needed.
Center should have made submissions to justify the act
“Enormous harm would be caused to the State if it’s not heard and the center should have made submissions to justify 10(1)(i). In view of the above, Section 10(a)(i) should not have been read down by this court, especially when the constitutional validity of the Section was not in question,” said the bench, which also included Justices CT Ravikumar and Sanjay Karol.
“Ultimately, it is for the court to review the law passed by Parliament and to (decide) whether declare it as unconstitutional or constitutional but it is the right of the government to defend its laws from being declared unconstitutional,” the top court emphasized.
The impact of TADA was affecting other similar provisions
It is imperative for the court to seek the government’s views, Solicitor General Tushar Mehta had contended, saying the impact of reading down the Terrorist and Disruptive Activities (Prevention) Act (TADA) provision was affecting similar provisions under the Unlawful Activities (Prevention) Act (UAPA), which prescribed punishment for being a member of a banned outfit in a reference to the Supreme Court on February 10, 2011, reading down TADA provisions to acquit Indra Das, an alleged member of the banned ULFA.
Senior counsel Sanjay Parikh, representing an intervenor, pointed out that the 2011 verdicts have been followed in 26 cases by various high courts. A bench led by Justice Markandey Katju (since retired) had in the Arup Bhuyan versus State of Assam case on February 2, 2011, held “Mere membership of a banned organisation cannot incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence, or does an act intended to create disorder or disturbance.”
Court said this cannot be a ground to not examine the issue
The top court cited a 1966 verdict of the US Supreme Court and said, “A law that applies to membership without the ‘specific intent’ to further the illegal aims of the organisation infringes unnecessarily on protected freedoms. It rests on the doctrine of ‘guilt by association’, which has no place here.”
However, the top court bench on Friday said that this cannot be a ground for it not to examine the issue. The matter was referred to a three-judge Bench in 2014 after the Center urged the top court to reconsider the matter, saying the order posed a risk as India faced growing threat from terror outfits, including those from Pakistan.
