Mere membership of an illegal organisation is sufficient to represent an offence beneath UAPA: SC

The Supreme Court on Friday dominated that membership in an organisation that the Central authorities has deemed unlawful is enough to qualify as an offence beneath the Unlawful Activities Prevention Act (UAPA).

As a consequence, Section 10(a)(i) of the UAPA, which had beforehand been learn down by a division bench of the Court in 2011, was sustained by the bench comprising Justices MR Shah, CT Ravikumar, and Sanjay Karol.

While upholding Section 10(a)(i) of UAPA, the SC declared that membership of an illegal affiliation is sufficient to represent an offence.

#Breaking #SupremeCourt #UAPA #SupremeCourtOfIndia pic.twitter.com/Ltdnj3kAA2

— Live Law (@LiveLawIndia) March 24, 2023

“Aim of UAPA is to prevent certain unlawful activities and prevent the same…at the cost of repetition, UAPA is to punish the person a member of an unlawful organisation in furtherance of the provisions of the UAPA…Thus Section 10(a)(i) is absolutely in consonance with Articles 19(1)(a) and 19(2) of the Constitution and thus in consonance with the objectives of the UAPA,” the Bench held.

Another query that appeared earlier than the Court was whether or not provisions of Central laws might be learn down in a case the place the identical was not assailed, and with out having heard the Central authorities. On this, the Court held,

“Enormous harm would be caused to State if they are not heard…and Centre should have made submissions to justify 10(1)(i) and what were the objects and purposes…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.”

Notably, the Bench additionally recognised the reliance positioned on United States’ court docket judgments by the apex court docket in its 2011 judgments that learn down the availability. The SC famous,

“This Court in Arup Bhuyan and in Raneef case has referred to US cases without relying on Indian case and differences…Thus this Court followed US decisions, which we are not agreeable with. We do not say for a moment that the United States Supreme Court decisions may not guide us…But Indian courts are required to consider differences in the nature of laws between two countries.”

Arup Bhuyan and Indra Das have been exonerated in 2011 by a court docket bench comprising Justices Markandey Katju and Gyan Sudha Mishra for violations of the Terrorist and Disruptive Activities (Prevention) Act (TADA).

The high court docket had opined that the TADA court docket had relied on a purported confession assertion and that conviction for merely belonging to an organisation that was prohibited by the Act might not stand.

In its 2011 ruling, the SC had noticed that “In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution…Hence, 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.”

The Supreme Court acknowledged in 2014 {that a} bigger bench ought to take into account the three instances since they concerned extra difficult points. The consequence was the present reference.

The Union authorities and sure state governments argued that the highest court docket’s interpretation of the UAPA selections had successfully learn down the aforementioned proviso by utilizing the American Bill of Rights, making it tougher to fight terrorism.

The Central Government contended that the Court couldn’t learn down the phrases of an anti-terror statute with out listening to its views and by counting on potential authorized abuse. The Court’s reliance on the Bill of Rights was misplaced, given the highest court docket’s earlier five-judge bench resolution in Babulal Parate v. State of Maharashtra through which it was held that ” … American doctrine can’t be imported beneath our Constitution as a result of the basic rights assured beneath Art. 19 (1) of the Constitution should not absolute rights however, as identified within the State of Madras … are topic to the restrictions positioned within the subsequent clauses of Art. 19. There is nothing within the American Constitution comparable to cls. (2) to (6) of Art. 19 of our Constitution.”

For the Central authorities, Solicitor General Tushar Mehta had argued that it was inherently tough to show formal participation in prohibited teams. The circumstances listed have been a deterrent and a precaution, he continued. The SG emphasised that beneath the present system, terrorist actions will go under the radar of safety companies supplied it isn’t purportedly carried out within the identify of banned or terrorist organisations.

Senior Advocate Sanjay Parikh argued that provisos might be learn down in instances affecting elementary rights like private liberty even when they aren’t instantly challenged. He was talking on behalf of an intervenor-NGO.

He argued that as civil freedoms are protected by the Indian in addition to US constitutions, it could be improper to invalidate the sooner ruling solely for its reliance on US court docket judgements.