The recent three judges’ bench verdict of the Apex Court, in the case of Arup Bhuyan vs. State of Assam and State of Kerala vs. Raneef, unanimously upholding the constitutional validity of section 10 (a) (i) of the Unlawful Activities Prevention Act, (UAPA) 1967, is a new jurisprudential paradigm in the modern legal history of Bharat.
There is an interesting antiquity to this litigation. In 2011, the Supreme Court read down the provisions of UAPA in the case of Arup Bhuyan.
In 2012, the Union of India and the State of Assam sought impleading and clarification of this judgement on three grounds. First, in a bail petition constitutional validity ought not to have been decided. Second, the Court decided the validity a central enactment without even hearing views of the Union Government. To sumup, while deciding the constitutional validity of an enactment, the enactor – the Union or State must be a party and heard. Third, straight jacket application of the American Bill of Rights – to our constitutional milieu is unfitting.
Back Story: ‘Can’t blindly import US interpretation of law’
On February 7, the Union Government, while seeking a review of the Supreme Court’s 2011 verdict that held that mere membership of a banned organisation was not a crime and only an active member could be prosecuted, told the court that the verdict relied on judgments delivered by American courts, which should not be blindly imported and invoked here.
Solicitor General Tushar Mehta submited that the court in its various judgements, some of them delivered by the constitution bench, had held that the conditions in our country were quite different and the court need not rely on the American Constitution and judgments for the purpose of examining the seven freedoms contained in Article 19. He said membership of an unlawful/banned organisation could be established or an inference drawn if materials relating to the outfit were seized during investigation. Relying on various American judgements, the Court in 2011 had held that mere membership of a banned organisation would not incriminate a person unless he resorted to violence or incited people to violence or did an act intended to create disorder or disturbance of public peace by resort to violence. It had said that American decisions on the issue could be applied to India also “as our fundamental rights are similar to the Bill of Rights in the US Constitution”.
The Government said the 2011 verdict was wrongly decided and “active membership” was not required to be proven over and above membership of a banned outfit under the Unlawful Activities Prevention Act to prosecute a person.
Mehta said, “It is submitted that judgments in Raneef supra and Arup Bhuyan supra were rendered without ascertaining the difference in the American position on free speech and banned organisations, and the Indian position on the same.” “This court has specifically rejected the importing of the American doctrine on free speech and specifically rejected the said importing in the context of ‘determining criminality’ by way of two Constitution bench judgments, which were not even considered by the court,” he added.” (With inputs from TOI )
Accepting the Union’s contentions, the matter was referred to a larger bench in August, 2014. The present judgement delivered on March 24, 2023, is in this setting. The judgement is remarkable for it specifically overrules all High Court decisions where a contrary view is taken.
Ever since 2011, our Supreme Court has held that all American constitutional and criminal law concepts (of “clear and present danger” enunciated in Schenck vs. United, “imminent lawless action” of Brandenburg case and distinction between active and passive membership propounded in Scales vs. United States) are squarely applicable our constitutional context. In result came the judgements in the cases of Arup Bhuyan, Raneef, and Sri Indra Das, in which the Apex Court said that mere membership of an unlawful association is no ground for punishing an individual.
People arrested under UAPA and acquitted by Court
- In February 2021, the Bombay High Court upheld a special court’s order granting bail to 27-year-old Areeb Majeed, accused of having links with ISIS terror network. According to media report, the high court bench in its order said that Majeed had been charged under provisions of the UAPA and was accused of having returned to India with an intention to carry out terrorist activities
- “However, no death was caused by the alleged plans hatched by the respondent (Majeed), since he was arrested the moment he landed in India,” the court said
- In June 2022, the Bombay High Court granted bail to Mohammad Raisuddin, arrested under UAPA in 2016 for allegedly being linked to the Islamic State (ISIS). Mere declaration of accepting terrorist Abu Bakr Al Baghdadi as the “Caliph” of Muslims was not incriminating circumstance, said the court
- In November 2022, the Bombay High Court on Friday granted bail to Prof. Anand Teltumbde, booked under the Unlawful Activities (Prevention) Act in the Bhima Koregaon-Elgar Parishad case
- The court observed that prima facie offences under sections 13 (Punishment for unlawful activities), 16 (punishment for terrorist act) and 18 (punishment for conspiracy) of the UAPA were not made out and only Sections 38 and 39 (membership and support to a terrorist organisation) were made out
It is indisputable that the United States is a democracy with a written Constitution. The Fundamental Rights enshrined in our Constitution are almost akin to the Bill of Rights. We, too, are governed by the rule of law. And thus, there should be no distinction between our constitutional rights and regimes. Moreover, an association may have all kinds of members – from those who structure its ideological edifice to the silent majority of passive members who may be mere sympathisers. How can the State punish those without a criminal mind, called ‘mens rea’ in legal parlance, who may have nothing to do with the terrorist activities of the association.
The latest judgement of the Supreme Court has effectively demonstrated how this view taken by judgements since 2011, looks very plausible and attractive but is fundamentally flawed.
Democracy has evolved differently in different jurisdictions, so have the Constitutions. The Fundamental Rights guaranteed under the Bill of Rights of the US Constitution, have no fetters at all, unlike our constitutional scheme, which places reasonable restrictions on their exercise. And as regards criminal intent, the UAPA punishes the constituent members of an association who willingly and knowingly become or continue the members pursuant to a declaration of an association as unlawful. When a member knows well of the terrorist background of the association, before becoming or continuing the membership, the mens rea is attached to these actions. The judgement goes on to say that mere apprehensions of use or misuse cannot be the ground for testing its constitutionality. In crux, the present judgement addresses each of the misapprehensions and attacks on constitutionality.
Supreme Court Changes Stand on UAPA
Court’s stand in 2011:
“Mere membership of a banned organisation will not incriminate a person” under the Unlawful Activities (Prevention) Act, 1967, and Terrorist and Disruptive Activities (Prevention) Act, 1987, “unless he resorts to violence or incites people to violence and resorts to an act intended to create disorder or disturbance of public peace by resort to violence.” (Arup Bhuyan vs State of Assam, Indra Das vs State of Assam and State of Kerala vs Raneef)
Court’s stand in 2023:
Court overruled 2011 Precedents: “When an association is declared unlawful by notification issued Under Section 3 (of UAPA), 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.”
Justice M.R. Shah, authoring the judgement for himself and for Justice C.T. Ravi Kumar, has cited several judgements of the Supreme Court in which automatic importation of the American Constitutional principles is abhorred. One such judgement cited by the Apex Court is Babulal Parate (1961), Joseph Kuruvilla Vellukunnel (1962) Madhu Limaye (1970) Pathumma (1978) Oleum Gas (1986) Ashoka Kumar Thakur (2008) and of course, the latest in the batch – Ramlila Maidan Incident case of 2012. Justice Sanjay Karol, in his concurring but separate judgement, tabulates the qualifications applied to the fundamental freedoms.
Government’s Affidavit in January 2023 on UAPA
Union Ministry of Home Affairs (MHA) in January 2023 claimed that SIMI activists were in regular touch with their associates and “masters based in other countries”. An organisation working with the “objective of establishing Islamic rule in India can, under no circumstances, be permitted to subsist.”
“…the evidence brought on record clearly and unambiguously establishes that despite being banned since September 27, 2001, except for a brief period in between, the SIMI activists are associating, meeting, conspiring, acquiring arms & ammunitions, and indulging in activities which are disruptive in character and capable of threatening the sovereignty and territorial integrity of India,” the affidavit reads.
The first amendment to the US Constitution says that the US Congress shall not make any law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the Freedom of Speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Juxtapose this with our constitutional structure in which almost every fundamental freedom of ours comes with enormous responsibility imposed in the interest of protecting our sovereignty and integrity.
Modi Government amends UAPA in 2019
The Union Government amended the Unlawful Activities (Prevention) Act (UAPA) in August 2019 to include the provision of designating an individual as terrorist. Prior to this amendment, only organisations could be designated as terrorist organisation.
The Union Government also declared two organisations as terrorist organisations under the provisions of the UAPA.
Khalistan Tiger Force (KTF): It is a militant outfit and it aims at reviving terrorism in Punjab and challenges the territorial integrity, unity, national security and sovereignty of India and promotes various acts of terrorism, including targeted killings in Punjab.
Jammu and Kashmir Ghaznavi Force (JKGF): It has been found involved in infiltration bids, narcotics and weapon smuggling and carrying out terror attacks in the Union territory of Jammu and Kashmir. It draws its cadres from various terrorist organisations, such as Lashker-E-Taiba, Jaish-E-Mohammed, Tehreek-ul-Mujahideen and Harkat-u —Jehad-E-Islami .
This Arup Bhuyan judgement of the Supreme Court is in the context of the UAPA and declaration of guilt of the members of unlawful associations such as ULFA and PFI. Yet, it has a deep and decisive impact on our constitutional jurisprudence. It reverses the trend of replication of the US principles to our constitutional situations. The case laws on Hindu temples, adultery, and same-sex marriage may have to be tested or revisited in light of the recent pronouncement.
Since time immemorial, we have never shied away from embracing the best practices and precedents from other jurisdictions. But inorganic grafting the foreign judgements and jurisprudence has had its set of resolute difficulties and disadvantages. This new judgement harbingers a new era of legal philosophy – indigenised and decolonised.
Comments