On March 24, the Supreme Court (SC) of India overruled the 2011 judgements in Arup Bhuyan v. State of Assam, Indra Das v. State of Assam and State of Kerala v. Raneef, which held that the mere membership of a banned organisation does not constitute an offence under the Unlawful Activities (Prevention) Act (UAPA) or Terrorism and Disruptive Activities (Prevention) Act (TADA) unless accompanied with some overt violence, Live Law reported.
Furthermore, the SC’s three-judge bench comprising Justices MR Shah, CT Ravikumar and Sanjay Karol upheld section 10(a)(i) of the UAPA, which makes membership in an unlawful or banned organisation to be an offence.
Supreme Court affirms the validity of the Unlawful Activities (Prevention) Act (UAPA) provision which attributes criminality to memberships.
Supreme Court says mere membership of unlawful association is sufficient to constitute an offence under UAPA. pic.twitter.com/oWrQ9Z2ZSs
— ANI (@ANI) March 24, 2023
The SC’s two-judge bench comprising Justices Markandey Katju and Gyan Sudha Mishra held that “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,” while deciding a bail application under TADA of a person accused to be a member of United Liberation Front of Asom (ULFA). The same bench took the same view in the Indra Das case.
In 2014, the SC’s two-judge bench comprising Justices Dipak Misra and AM Sapre referred the case to a larger bench after the Government of India filed an application seeking reference claiming that the central legislations were interpreted without hearing the Government of India.
In the present case, the SC observed that the constitutionality of the UAPA and TADA’s provisions were not in question in the cases where bail application was passed in the 2011 judgements. Furthermore, the SC noted that the constitutional validity of UAPA and TADA was upheld in earlier judgements.
The SC said, “When a Parliamentary legislation is read down in the absence of the Union, enormous harm would be caused to State if they are not heard,” while faulting the 2011 judgements for reading down the provisions without hearing the Government of India, Live Law reported.
Furthermore, the SC stated that reading down the provisions is not permissible when the language of the provision is plain and clear, Live Law reported. The SC said, “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.”
The SC held that the two-judge bench made a mistake when it relied on US Supreme Court judgements, as there is a difference in the nature of laws between the two countries. The SC said, “We do not say for a moment that US Supreme Court decisions may not guide us. But Indian courts are required to consider the difference in nature of laws between two countries,” Live Law reported
The SC upheld the constitutional validity of Section 10(a)(i) and said, “Section 10(a)(i) is absolutely in consonance with 19(1)(a) and 19(2) of the constitution and thus in consonance with the objectives of the UAPA.” Furthermore, the SC noted that the provisions were enacted in interests of the sovereignty and integrity of the nation, which are reasonable restrictions enshrined in Article 19 of the Constitution of India.
The SC declared that the 2011 judgements in Arup Bhuyan v. State of Assam, Indra Das v. State of Assam and State of Kerala v. Raneef were bad in law. Furthermore, the SC overruled the High Court judgements which relied on the aforementioned judgements as bad in law.
