Mere membership of an unlawful association sufficient to constitute offence under UAPA, rules Supreme Court

Tribune News Service

Satya Prakash

New Delhi, March 24

Mere membership of an unlawful association was 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 two-judge Bench which read down Section 10(a)(i) of the UAPA, a three-judge Bench led by Justice MR Shah upheld 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.

The 2011 verdict said, "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.”

However, noting 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, the top court said, “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 agreed with the Centre’s contention that the provision in question could be read down as it was not challenged, and without hearing the government on the crucial provision.

"Enormous harm would be caused to the State if it’s not heard...and Centre 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 Justice CT Ravikumar and Justice Sanjay Karol.

The top court had on February 9 reserved its verdict on a reference made in 2014 by a two-judge Bench in view of the judgments in two cases decided by a Bench led by Justice Markandey Katju (since retired) that negated the theory of ‘guilt by association’.

Noting that the Centre needed to be heard and given an opportunity to put forward its case regarding the intent of Parliament, the Bench had said, "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 some representation had to be there.

"Ultimately, it is for the court to review the law passed by Parliament and to 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 had emphasised as it questioned the reading down of a law without its validity having been challenged and without hearing the Union of India.

Solicitor General Tushar Mehta had contended that it was imperative for the court to seek the government’s views, saying the impact of reading down the TADA provision was affecting similar provisions under the Unlawful Activities (Prevention) Act (UAPA), which prescribed punishment for being a member of a banned outfit.

As senior counsel Sanjay Parikh, representing an intervenor, pointed out that the 2011 verdicts have been followed in 26 cases by various high courts, the Bench said that can’t be a ground for it not to examine the issue.

The matter was referred to a three-judge Bench in 2014 after the Centre 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.

Following the 2011 judgments of the top court, many high courts had started releasing members of banned organisations, making it difficult for security agencies to deal with increasing security challenges.

A Bench led by justice Markandey Katju (since retired) had in Arup Bhuyan versus State of Assam 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...”

The Terrorist and Disruptive Activities (Prevention) Act (TADA) declared membership of a banned organisation a crime. But on February 10, 2011, the Supreme Court read down TADA provisions to acquit Sri Indra Das, an alleged member of banned ULFA.

Citing a 1966 verdict of the US Supreme Court, the top court had 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.”‎

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