Unlawful Activities (Prevention) Act, 1967 – ss.10(a)(i), 3 and
4 – s.10(a)(i) provides that where an association is declared unlawful by a notification issued u/s.3 which has become effective under sub-section 3 of that Section, a person who is and continues to be a member of such association shall be punishable with imprisonment for a term which may extend to 2 years and shall also be liable to fine – Whether “active membership” is required to be proven over and above the membership of a banned organization under the UAPA, 1967 – Held: The object and purpose of the enactment of UAPA is to provide for more effective prevention of certain unlawful activities – s.10(a)(i) can be said to be absolutely in consonance with Arts. 19(1), (2) & (4) of the Constitution and can be said to be in furtherance of the object and purpose for which the UAPA has been enacted – Before any organization is declared unlawful, a detailed procedure is required to be followed including wide publicity and even the right to representation before tribunal – s.10(a)(i) does not suffer from any vagueness and/or on the ground of being unreasonable and/or disproportionate – As per s.10(a)(i), a person cannot be punished merely because he was the member of such unlawful association – If a person has been a member but does not continue to be a member after declaration, that does not attract mischief of s.10 – However, once an association is declared unlawful of whom the concerned person was the member and he wishes to continue as a member despite the fact that he is well aware of the fact that such an association is declared unlawful it shows a conscious decision on his part and therefore he is liable to be penalized for such an act of continuation of his membership with such unlawful association – Therefore, thereafter he cannot be permitted to make grievance of chilling effect – Doctrines /Principles – Chilling effect doctrine.
Constitution of India – Arts.19(1)(c) and 19(4) – Right to freedom of speech – Value of Foreign decisions – Whether American decisions concerning freedom of speech could be relied upon while considering the right to freedom of speech available under the Constitution of India more particularly Art.19(1)(c) and 19(4) – Held: Under the Constitution of India, the right to freedom of speech is subject to reasonable restrictions and is not an absolute right – The Constitution permits the Parliament to frame the laws taking into consideration the public order and/or the sovereignty of India – Without noticing the differences in American Laws and the Indian laws, the Supreme Court in the cases of Arup Bhuyan (two Judge Bench decision) and Raneef erred in straightway and directly following the US Supreme Court decisions – Before following the American decisions, the Indian Courts are required to consider the difference in the nature of the laws applicable in the respective countries – Judgment / Order.
Unlawful Activities (Prevention) Act, 1967 – s.10(a)(i) – Decisions of Supreme Court in the case of Raneef and Arup Bhuyan (two Judge Bench decision) taking the view on reading down s.10(a)(i) that mere membership of a banned organization will not make a person a criminal/guilty unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence – Reading down of s.10(a)(i) 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 – If proper – Held: When any provision of Parliamentary legislation is read down in the absence of Union of India it is likely to cause enormous harm to the interest of the State – In absence of any challenge to the constitutional validity of s.10(a)(i) of the UAPA there was no question of reading down of the said provision by this Court – Reading down the provision of a statute cannot be resorted to when the meaning of a provision is plain and unambiguous and the legislative intent is clear – The Court ought not to have read down s.10(a)(i) of the UAPA, 1967 when neither its’ constitutional validity was under challenge nor the Union of India was heard.
Interpretation of Statutes – Doctrines/Principles – “Reading down Doctrine” – Discussed.
Answering the Reference, the Court
HELD:
per M.R. SHAH, J. (for himself, C.T. Ravikumar, J. and Sanjay Karol, J.)
1. Now so far as the reading down of Section 10(a)(i) of the UAPA, 1967 by this Court in the case of Arup Bhuyan is concerned, at the outset it is required to be noted that such reading down of the provision of a statute could not have been made without hearing the Union of India and/or without giving any opportunity to the Union of India. When any provision of Parliamentary legislation is read down in the absence of Union of India it is likely to cause enormous harm to the interest of the State. If the opportunity would have been given to the Union of India to put forward its case on the provisions of Section 10(a)(i) of the UAPA, 1967, the Union of India would have made submissions in favour of Section 10(a)(i) of the UAPA including the object and purpose for enactment of such a provision and even the object and purpose of UAPA. Even otherwise in absence of any challenge to the constitutional validity of Section 10(a)(i) of the UAPA there was no question of reading down of the said provision by this Court. Therefore, in absence of any challenge to the constitutional validity of Section 10(a)(i) of UAPA, 1967 there was no occasion for this Court to read down the said provision. Also, reading down the provision of a statute cannot be resorted to when the meaning of a provision is plain and unambiguous and the legislative intent is clear. This Court ought not to have read down Section 10(a)(i) of the UAPA, 1967 more particularly when neither the constitutional validity of Section 10(a)(i) of the UAPA, 1967 was under challenge nor the Union of India was heard. [Paras 11.1, 11.2, 11.3, 11.4 and 11.5][535-F-H; 536-A-E, H]
2. Considering the different position of laws in US and in our country more particularly faced with Articles 19(1)(c) and 19(4) of the Constitution of India under which the right to freedom of speech is subject to reasonable restrictions and is not an absolute right and the constitution permits the Parliament to frame the laws taking into consideration the public order and/or the sovereignty of India, without noticing the differences in American Laws and the Indian laws, this Court in the case of Arup Bhuyan (two Judge Bench decision) and Raneef has erred in straightway and directly following the US Supreme Court decisions and that too without adverting to the differences and the position of laws in India. In the aforesaid two decisions without noticing the differences of the US Supreme Court this Court has just followed the American decisions, which cannot be accepted. This Court ought to have considered the differences in the American laws and the Indian laws more particularly the provisions in the Indian Constitution. By the aforesaid this Court does not say for a moment that in a given case the US Supreme Court decisions may not be taken into consideration and/or may not be guidance. Before following the American decisions, the Indian Courts are required to consider the difference in the nature of the laws applicable in the respective countries. [Paras 13 and 13.1][542G-H; 453-A-C]
3.1 Before any organization is declared unlawful a detailed procedure is required to be followed including the wide publicity and even the right to a member of such association to represent before the Tribunal. The notification issued by the Central Government declaring a particular association unlawful, is subject to inquiry and approval by the 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 the consequences and is subjected to the penal provisions as provided under Section 10 more particularly Section 10(a)(i) of the UAPA, 1967. [Para 14.5][554E-F]
3.2. A person who is a member of such an unlawful association is as such aware of the declaration of such association as unlawful and despite the same if he still continues to be the member of such unlawful association which is indulging into the unlawful activities and acting against the sovereignty and integrity of India, his intention is very clear that he still wants to associate with such an association which is indulging into ‘unlawful activities’ and acting against the interests of sovereignty and integrity of India. The language used in the Section 10(1)(i) and the procedure to be followed under Sections 3 & 4 of the Act, before any association is declared as unlawful are very clear. Therefore, Section 10(a)(i) does not suffer from any vagueness and/or on the ground unreasonable and/or disproportionate. [Para 16.1][556E-G]
3.3 As per Section 10(a)(i) a person cannot be punished merely because he was the member of such unlawful association. The language including Section 10 is very significant. It provides that “wherein an association is declared unlawful” by notification under Section 3 which has become effective under sub-Section 3 of that Section. So, it is only after the Notification under Section 3 has become effective under subsection 3, that the latter part of that Section applies. The language of Section 10(a)(i) is also very cautiously worded “who is and continues to be a member of such association”. Therefore, on true interpretation, if a person has been a member but does not continue to be a member after declaration, that does not attract mischief of Section 10. The intention seems to be that not only was he a member on the day when the association is declared unlawful but he continues to be a member. The intention is very clear that not only on the given date but even after that you continue to be a member of that association which is declared as unlawful association due to unlawful activities which is found to be against the interests of sovereignty and integrity of India. Therefore, once an association is declared unlawful of whom the concerned person was the member wishes to continue as a member despite the fact that he is well aware of the 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 therefore liable to be penalized for such an act of continuation of his membership with such unlawful association. Therefore, thereafter he may not make grievance of chilling effect. [Para 17.1][557-B-F]
4. The view taken by this Court in the cases of Raneef, Arup Bhuyan (two Judge Bench decision), and Sri Indra Das taking the view that under Section 3(5) of Terrorists and Disruptive Activities (Prevention) Act, 1987 and Section 10(a)(i) of the Unlawful Activities (Prevention) Act, 1967 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 and reading down the said provisions to mean that over and above the membership of a banned organization there must be an overt act and/or further criminal activities and adding the element of mens rea are held to be not a good law. 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 the UAPA, 1967. [Para 18][557G-H; 558-A-C]
State of Kerala vs. Raneef (2011) 1 SCC 784 : [2011] 1 SCR 590; Arup Bhuyan vs. Union of India (2011) 3 SCC 377 : [2011] 2 SCR 506 and Indra Das v. State of Assam (2011) 3 SCC 380 : [2011] 4 SCR 289 – held not good law.
Babulal Parate vs. State of Maharashtra [1961] 3 SCR 423; Madhu Limaye vs. Sub-Divisional Magistrate (1970) 3 SCC 746 : [1971] 2 SCR 711; Supdt., Central Prison vs. Dr. Ram Manohar Lohia [1960] 2 SCR 821; Joseph Kuruvilla Vellukunnel vs. Reserve Bank of India [1962] Supp 3 SCR 632; Ashoka Kumar Thakur vs. Union of India (2008) 6 SCC 1 : [2008] 4 SCR 1; Kesavananda Bharti vs. State of Kerala (1973) 4 SCC
225 : [1973] Suppl. SCR 1; State of Bihar vs. Union of India (1970) 1 SCC 67 : [1970] 2 SCR 522 and Subramanian Swamy and others vs. Raju through Member, Juvenile Justice Board and Anr. (2014) 8 SCC
390 : [2014] 9 SCR 283 – relied on.
Sanjeev Coke Manufacturing Company v. M/s Bharat Cooking Coal Limited (1983) 1 SCC 147 : [1983] 1 SCR 1000; Kaushal Kishor v. State of Uttar Pradesh and Others 2023 SCC OnLine SC 6; Ramlila Maidan Incident, In re, (2012) 5 SCC 1 : [2012] 4 SCR 971; M.C. Mehta v. Union of India (1987) 1 SCC 395 : [1987]
1 SCR 819; Pathumma v. State of Kerala (1978) 2 SCC
1 : [1978] 2 SCR 537; People’s Union for Civil Liberties v. Union of India (2004) 9 SCC 580 : [2003] 6 Suppl. SCR 860; State of Gujarat v. Shyamlal Mohanlal Choksi [1965] 2 SCR 457; Shreya Singhal v. Union of India (2015) 5 SCC 1 : [2015] 5 SCR 963; Kedar Nath v. State of Bihar, AIR 1962 SC 955 : [1962] Suppl. SCR 769; State of Bihar v. Shailabala Devi AIR 1952 SC
329 : [1952] SCR 654; S. Rangarajan v. P. Jagjivan Ram and others (1989) 2 SCC 574 : [1989] 2 SCR 204; O.K. Ghosh v. E.X. Joseph, AIR 1963 812 : [1963] Suppl. SCR 789; Balwant Singh v. State of Punjab (1995)
3 SCC 214 : [1995] 2 SCR 411; Kartar Singh v. State of Punjab (1994) 3 SCC 569 : [1994] 2 SCR 375; T.N. Education Deptt. Ministerial and General Subordinate Services Assn. vs. State of Tamil Nadu (1980) 3 SCC
97 : [1980] 1 SCR 1026; Mafatlal Industrial Ltd. vs. Union of India (1997) 5 SCC 536 : [1996] 10 Suppl. SCR 585 and Thawaha Fasal vs. Union of India (2021) SCC Online SC 1000 – referred to.
Niharendu Dutt Majumdar v. The King Emperor 1942 F.C.R. 38 – referred to.
Schenck vs. United States 249 U.S. 47 (1919); Brandenburg vs. Ohio 395 U.S. 444 (1969); Scales vs. United States [6 L Ed 2d 782]; Elfbrandt vs. Russell [16 L Ed 2d 321]; Joint Anti-Fascist Refugee Committee vs. McGrath [95 L Ed 817] – referred to.
per SANJAY KAROL, J. (Separately concurring as well)
1. The contradistinction between the rights created by the First Amendment of the American Constitution and Article 19 of the Indian Constitution is the power given to the State to make laws reasonably restricting such freedoms in India. Conversely, in the United States of America, restrictions have been imposed by the Judiciary in instances, as relied upon in Arup Bhuyan and Indra Das, however no such explicit power is available with the Legislature. [Para 15][567-C]
2. In Arup Bhayan, the Court placed reliance on American decisions in Elfbrandt v. Russel, Clarence Brandenberg v. State of Ohio and United States v. Eugene Frank Robel wherein the doctrine of ‘guilt by association’ has been rejected. The court observed that the abovementioned judgments apply to India too, since the fundamental rights in India are similar to the Bill of Rights in the U.S. Constitution. The abovementioned decisions are in contradistinction to the scenario in question in India. The American decisions primarily involve indictment on the basis of membership of political organizations or incidents of free speech advocating overthrow of the government. However, under Indian law, it is not membership of political organizations etc. or free speech or criticism of the government that is sought to be banned, it is only those organizations which aim to compromise the sovereignty and integrity of India and have been notified to be such and unlawful, whose membership is prohibited. This is in furtherance of the objective of the UAPA, which has been enacted to provide for the more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected therewith. The distinction, therefore, is clear. [Paras 30 and 48][572-F; 579-A-C]
3. There is “a world of difference” between the American and Indian scenario, so far as, sub serving public interest is concerned. It is this difference which seemed to have escaped the division bench’s attention in Arup Bhyan and Indra Das. Therefore, 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. [Paras 50 and 52][580-C, F]
Arup Bhuyan v. State of Assam (2011) 3 SCC 377 : [2011] 2 SCR 506 and Sri Indra Das v. State of Assam (2011) 3 SCC 380 : [2011] 4 SCR 289 – held not good law.
Babulal Parate v. State of Maharashtra [1961] 3 SCR
423 and Madhu Limaye v. Sub-Divisional Magistrate (1970) 3 SCC 746 : [1971] 2 SCR 711 – followed. Union of India v. Naveen Jindal and Another (2004) 2 SCC 510 : [2004] 1 SCR 1038; Hyderabad Asbestos Cement Products and Anr. v. Union of India and Ors. (2000) 1 SCC 426 : [1999] 5 Suppl. SCR 155; Shreya Singhal v. Union of India (2015) 5 SCC 1 : [2015] 5 SCR 963; Indian Express Newspapers (Bombay) Pvt. Ltd. and Others v. Union of India and Others (1985) 1 SCC 641 : [1985] 2 SCR 287; Superintendent, Central Prison v. Dr. Ram Manohar Lohia [1960] 2 SCR 821; Pathumma v. State of Kerala (1978) 2 SCC 1 : [1978] 2 SCR 537; M.C. Mehta v. Union of India (1987) 1 SCC
395 : [1987] 1 SCR 819; Ashok Kumar Thakur v. Union of India (2008) 6 SCC 1 : [2008] 4 SCR 1; Jayendra Vishnu Thakur v. State of Maharashtra (2009) 7 SCC
104 : [2009] 8 SCR 591 and Ramlila Maidan Incident, In re, (2012) 5 SCC 1 : [2012] 4 SCR 971 – relied on. Kaushal Kishor v. State of U.P. & Ors. 2023 SCC Online 6; Arup Bhuyan v. State of Assam (2015) 12 SCC 702; Dharam Dutt v. Union of India (2004) 1 SCC 712 : [2003] 6 Suppl. SCR 151; State of Madras v. VG Row [1952] SCR 597; State of Bihar v. Shailabala Devi AIR 1952 SC 329 : [1952] SCR 654; O.K. Ghosh and Anr. v. E.X. Joseph AIR 1963 SC 812 : [1963] Suppl. SCR 789; A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy (2011) 9 SCC 286 : [2011] 14 SCR 1; Raghubar Dayal Jai Prakash v. Union of India AIR 1962 SC 263 : [1962] 3 SCR 547; Jamaat-E-Islami Hind v. Union of India (1995) 1 SCC 428 : [1994] 6 Suppl. SCR 316; Express Newspapers (Pvt.) Limited and Another v. Union of India and Others [1959] SCR 12; State of Travancore – Cochin and Others v. Bombay Co. Ltd. [1952] SCR 1112; State of Bombay v. R.M.D. Chamarbaugwala [1957] SCR 874; Reliance
Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd. and Ors. (1988) 4 SCC
592 : [1988] 3 Suppl. SCR 212; R.K. Garg v. Union of India (1981) 4 SCC 675 : [1982] 1 SCR 947; Maneka Gandhi v. Union of India (1978) 1 SCC 248 : [1978] 2 SCR 621 and State of Kerela v. Raneef (2011) 1 SCC
784 : [2011] 1 SCR 590 – referred to.
Morey v. Doud 354 US 457 (1957); Secy. of Agriculture v. Central Roig Refining Co. 338 US 604 (1949); Ghani v. Jones (1970) 1 QB 693; Elfbrandt v. Russel 384 U.S.
17 (1966); Clarence Brandenberg v. State of Ohio 395 U.S. 444 (1969);United States v. Eugene Frank Robel
389 U.S. 258 (1967); Clarence Brandenberg v. State of Ohio 395 U.S. 444 (1969); United States v. Eugene Frank Robel 389 U.S. 258 (1967); Scales v. United States 367 US 203 (1960); Noto v. United States 367 US 290 (1960);Communist Party v. Subversive Activities Control Board 367 US 1 (1961); Joint Anti-Fascist Refugee Committee v. McGrath 341 US 123, 174 (1951); Keyishian v. Board of Regents of New York 385 US 589 1966; In Yates v. U.S. 354 US 298 (1957); Whitney v. California 274 US 357 (1926); Gitlow v. New York 268 US 652 (1925); Terminiello v. Chicago 337 US 1 (1948) and De Jonge v. Oregon 299 US 353 (1936)referred to.
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