ARUP BHUYAN versus STATE OF ASSAM & ANR. (24/03/2023) — Supreme Court headnote

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Summary

On review by the Union of India and the State of Assam, a three-Judge Bench reconsidered Raneef, Arup Bhuyan and Indra Das, which had relied on United States authority to read down Section 3(5) of TADA and Section 10(a)(i) of the Unlawful Activities (Prevention) Act, 1967 so that mere membership of a banned organisation was no offence absent violence or incitement. The Court held those decisions not good law: the provision was read down without a constitutional challenge or hearing the Union; American free-speech doctrine cannot be applied without regard to Articles 19(2) and 19(4); and Section 10(a)(i), punishing one who is and continues to be a member after the association is declared unlawful under Sections 3 and 4, is constitutional and neither vague nor disproportionate.

Issues

Whether the decisions in State of Kerala v. Raneef, Arup Bhuyan v. State of Assam and Indra Das v. State of Assam, holding that mere membership of a banned organisation does not incriminate a person under Section 3(5) of TADA or Section 10(a)(i) of the Unlawful Activities (Prevention) Act, 1967 unless he resorts to or incites violence, were correctly decided.
Whether a Parliamentary provision can be read down without a challenge to its constitutional validity and without hearing the Union of India.
Whether decisions of the United States Supreme Court on freedom of speech and association can be applied to the interpretation of Indian statutes without regard to Articles 19(2) and 19(4) of the Constitution.

Provisions considered

Section 10(a)(i), Unlawful Activities (Prevention) Act, 1967Where an association is declared unlawful by a notification under Section 3 that has become effective under Section 3(3), a person who is and continues to be a member is punishable with imprisonment up to two years and fine; the words 'is and continues to be' require continued membership after the declaration, which evidences a conscious choice, so no further overt act or mens rea needs to be read in. (¶¶ 10.3, 14.3, 14.6, 17.1, 18)
Sections 3, 4 and 5, Unlawful Activities (Prevention) Act, 1967An association is declared unlawful only after a reasoned notification, wide publicity and service, and confirmation by a Tribunal presided over by a High Court Judge after notice and inquiry in which members may participate; this adversarial process supplies inbuilt reasonableness and proportionality and answers the pleas of vagueness and chilling effect. (¶¶ 14.4, 14.5, 16.1, 17, Karol J. 49)
Articles 19(1)(c) and 19(4), as amended by the Constitution (Sixteenth Amendment) Act, 1963, Constitution of IndiaThe right to form associations is subject to reasonable restrictions in the interests of the sovereignty and integrity of India and public order; the UAPA was enacted under this power on the recommendation of the National Integration Council, and Section 10(a)(i) falls within it. (¶¶ 14.1, 14.2, 15.1, Karol J. 5, Karol J. 10, Karol J. 15)
Section 3(5), Terrorist and Disruptive Activities (Prevention) Act, 1987Pari materia with Section 10(a)(i) of the UAPA; the reading down of this provision in Arup Bhuyan to require violence or incitement is overruled. (¶¶ 5, 10.6, 18)
Sections 38 and 39, Unlawful Activities (Prevention) Act, 1967Offences relating to terrorist organisations expressly require intention to further the organisation's activities; being differently worded from Section 10, the decision in Thwaha Fasal on these sections does not govern membership of an unlawful association. (¶¶ 6.2, 6.3, 9.4)

Held

Raneef was a bail matter in which the validity of Section 10(a)(i) was not in issue and the Union was not heard; its observations are confined to bail. Arup Bhuyan and Indra Das merely followed Raneef and American decisions without considering Articles 19(1)(c) and 19(4). Reading down a Parliamentary provision without hearing the Union of India is likely to cause enormous harm, and following Subramanian Swamy v. Raju, reading down is impermissible where the language is plain and no constitutional challenge is before the Court. (¶¶ 10.4, 10.5, 10.7, 10.8, 11.1, 11.2, 11.3, 11.4, 11.5)
Following Babulal Parate, Madhu Limaye, Ram Manohar Lohia, Ramlila Maidan and Joseph Kuruvilla Vellukunnel, American doctrines such as clear and present danger cannot be imported directly because the First Amendment contains nothing corresponding to clauses (2) to (6) of Article 19; the two-Judge Benches erred in straightaway following United States decisions without adverting to these differences, though such decisions may offer guidance after the differences are considered. (¶¶ 12, 12.2, 12.3, 12.5, 12.6, 13, 13.1, 13.2)
The UAPA was enacted to give effect to the Sixteenth Amendment and to provide for more effective prevention of unlawful activities; Parliament has consciously made continued membership of an association declared unlawful after the Section 3 and 4 process an offence, which is in consonance with Articles 19(1), 19(2) and 19(4) and in furtherance of the Act's object. Decisions on IPC offences such as Kedar Nath Singh, which predate the Sixteenth Amendment, and Balwant Singh do not apply because those are standalone offences without any prior adjudicated ban. (¶¶ 14.2, 14.3, 14.6, 15, 15.1)
Possibility of misuse is no ground to read down or invalidate a provision; Section 10(a)(i) is not vague, unreasonable or disproportionate, and a person who knowingly continues as a member after the declaration cannot complain of a chilling effect since the consequences are provided in the Act itself. A person who was a member but ceases to be one after the declaration is not caught. (¶¶ 16, 16.1, 17, 17.1)
Per Sanjay Karol J., concurring: the American decisions relied on concerned membership of political organisations or advocacy of overthrow of government under an absolute First Amendment, whereas the UAPA bans only associations notified as compromising India's sovereignty and integrity after a system of checks and balances; United States judgments have persuasive value but, as Shreya Singhal notes, there is a world of difference where public interest restrictions are concerned, and they cannot almost singularly found a decision on national security. (¶¶ Karol J. 15, Karol J. 16, Karol J. 17, Karol J. 28, Karol J. 48, Karol J. 49, Karol J. 50, Karol J. 52)

Result

Reference answered: the view in Raneef, Arup Bhuyan and Indra Das that mere membership of a banned organisation does not incriminate a person under Section 3(5) of TADA or Section 10(a)(i) of the UAPA unless he resorts to or incites violence held not good law; a person who is and continues to be a member of an association declared unlawful under Section 3 is punishable under Section 10(a)(i); contrary High Court decisions overruled; review applications of the Union of India and the State of Assam allowed; main matters to be placed before the appropriate Bench.