TeaIn his recent Supreme Court Arup Bhuiyan v. State of Assam (2023) Speaking through a three-judge bench of Justices MR Shah, CT Ravi Kumar and Sanjay Karol, the judgment overruled its earlier decisions in three previous cases Arup Bhuiyan (2011), RanifAnd Indra Das, Among other points, the court decided on the applicability of Section 10(a)(i) of the Unlawful Activities (Prevention) Act (UAPA) 1967. This section punishes anyone who ‘Member and will remain’ declared any association ‘illegal’ by the Central Government.
Preventive detention laws such as the UAPA have always drawn criticism for their departure from established norms of criminal law which rely on the principle that a person cannot be condemned unless he has committed an offence. overruled in Arup Bhuiyanwhich was relied upon by the Supreme Court in cases of Ranif And Indra Das, read that provision (Section 10(a)(i)) of the UAPA and held that mere passive membership is not sufficient to punish a person and that the act of mere membership over and above Must be proven to punish. section. These rulings distinguished ‘passive’ and ‘active’ membership of an illegal organization and punished only the latter. However, the present judgment reverses that view and does not hold any such distinction to be valid.
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Questions considered by the Supreme Court
The Supreme Court based its decision on three questions of law. First, it asked whether US decisions relating to freedom of speech cited in the now-ruled decisions can be relied upon, noting that due respect must be given to the different nature of the laws in India and the US:
“…this Court in the case of Arup Bhuiyan and Ranip (sic) It has erred in simply and directly following the US Supreme Court decisions and that too without taking into account the differences and the state of laws in India.
Further, it was noted that the said right is subject to ‘reasonable restrictions’ and is not an absolute right unlike in the US.
Second, the court noted that the earlier decisions were made in a case where the constitutional validity of Section 10(a)(i) was not directly challenged, and that the decision was given without hearing the Union of India. Therefore, the court said, had the Union of India been permitted to pursue its case, it would have argued in favor of section 10(a)(i). Therefore, UAPA being a law made by the Parliament, its provision has to be read without listening to the Union of India “There is a possibility of huge damage to the interest of the State.”
Third, and more important, it asked whether ‘active membership’ needed to be proved over and above membership of a banned organisation. Here, the Supreme Court reiterated the objects and reasons for the enactment of UAPA. It was noted that the main objective of UAPA is To “Provide powers to deal with activities directed against the integrity and sovereignty of India.”
It was further observed that once an association is declared unlawful after following due process, and a person continues to be a member, he is liable to be punished. It was reiterated that before any association is declared unlawful, an elaborate procedure needs to be followed, including wide publicity of the ban and even the right of such association to be represented before the Tribunal Including why the said organization should not be banned. Confirmed.
The Supreme Court also rejected the argument that Section 10(a)(i) punishes only illegal association in the absence of any Mens rea, or criminal intent. It was observed that if a person continues to be a member of such association after having knowledge that such association has been declared unlawful, “His intention is very clear that he still wants to associate with an association which is involved in ‘unlawful activities’ and is working against the interests of India’s sovereignty and integrity.”
The Supreme Court also rejected the argument that Section 10(a)(i) is vague, unreasonable and/or disproportionate. Further, it was also observed that the said section cannot be read down merely on the possibility of misuse/abuse if the provision is otherwise constitutionally sound.
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What are the implications of the ruling?
The Supreme Court emphasized how the Act provides for ‘due process’ to be followed under Section 3. This section provides that the Central Government may declare any association to be unlawful, and after such declaration, make an automatic reference to a Tribunal which shall grant the said association (and/or its members) such Opportunity to argue against declaring the association illegal. The Single Member Tribunal constituted under section 5 shall consist of a Judge of the High Court. Thereafter, once the declaration is confirmed by the Tribunal, any person who continues to be a member may be punished under section 10(a)(i).
Now, as Section 10(a) itself provides, and as also reiterated by a recent Supreme Court judgment, a member (including inactive members) may be punished Only after the Tribunal confirms the declaration. It appears to be a reasonable provision, giving members an opportunity to contest against the ban, and after providing such an opportunity, expect them to terminate their membership.
However, what the Supreme Court did not appreciate is that the provision of section 3(3) provides for an exception. It stipulates that the Central Government may also do away with the requirement of referring sanctions to the Tribunal if it is of the opinion that circumstances warranting an immediate ban exist, Of course, what circumstances justify an immediate ban is not specified and is left to the discretion of the executive.
Therefore, seeking clarification by the Supreme Court with regard to the aforesaid proviso to section 3(3), while discussing the principles of ‘due process’ and natural justice in the context of penalizing inactive membership under section 10(a)(i). Absence gives legitimacy to one. loophole which may possibly flout the principles of natural justice.
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Freedom to arrest non-members as well
With this decision, there is no longer any requirement for the State to prove that a person, being a member of an unlawful association, actually resorts to violence or incites violence; The State only needs to show that he is a member of an ‘unlawful’ association. However, ‘membership’ has not been defined anywhere in the Act, which the court seems to have missed. Furthermore, many organizations, especially those that may be banned as ‘unlawful’, do not keep strict records of their members.
This leaves the investigative agencies free to interpret ‘membership’. A driver, tailor, servant, among others, who provides his services to the members of an illegal organization may be shown as a ‘member’, even if he is unaware of the existence of such an organization. forward, as put by mihir desai (Senior Advocate, Bombay High Court), he would also be prevented from producing evidence to the contrary as would be permissible only at trial.
It is clear that the recent verdict has left more questions than it has answered. The Supreme Court held the possibility of misuse of the statute as an illegal ground for reading down the law, going so far as to say:
“According to the prescribed law, any action which is the result of misuse/abuse of any law is subject to challenge. But an otherwise constitutionally valid law cannot be declared unconstitutional on the mere possibility of misuse/abuse of law.” “
It is expected that larger benches will be called in future to revisit the recent judgment and fill the gap left by the three-judge bench.
Mohammad Nasir is an assistant professor of law at Aligarh Muslim University and author of Syed Mahmood: Colonial India’s Dissenting Judge. Taha Bin Tasnim studies law at Aligarh Muslim University. Kaif Siddiqui is a PhD candidate at NALSAR University of Law. Thoughts are personal.
(Editing by Anurag Choubey)