1.Present reference to the larger Bench is made against the judgment and order in the case of Arup Bhuyan vs. Union of India, (2011) 3 SCC 377 as well as State of Kerala vs. Raneef, (2011) 1 SCC 784, pursuant to the order passed by this Court dated 26.08.2014, reported as (2015) 12 SCC 702. Background of the Reference
2.That the Division Bench of this Court in the case of
Raneef (supra) whilst relying upon numerous American
decisions concerning freedom of speech and position on
membership of banned organizations rejected the doctrine of
“guilt by association” and observed that mere membership of a
banned organization will not incriminate a person unless he
resorts to violence or incites people to violence and does an
act intended to create disorder or disturbance of public peace
by resort to violence. In paragraphs 10 to 14 this Court in the
case of Raneef (supra) observed and held as under:
“10.) As regards the allegation that the
respondent belongs to the PFI, it is true that it
has been held in Redaul Husain Khan vs.
National Investigation Agency 2010 (1) SCC 521
that merely because an organization has not been
declared as an `unlawful association' it cannot be
said that the said organization could not have
indulged in terrorist activities. However, in our
opinion the said decision is distinguishable as in
that case the accused was sending money to an
extremist organization for purchasing arms and
ammunition. That is not the allegation in the
present case.
The decision in State of Maharashtra vs.
Dhanendra Shriram Bhurle 2009(11) SCC 541 is
also distinguishable because good reasons have
been given in the present case by the High Court
for granting bail to the respondent. In the
present case there is no evidence as yet to prove
that the P.F.I. is a terrorist organization, and
hence the respondent cannot be penalized merely
for belonging to the P.F.I. Moreover, even
assuming that the P.F.I. is an illegal organization,
we have yet to consider whether all members of
the organization can be automatically held to be guilty.
11. In Scales vs. United States 367 U.S. 203 Mr. Justice Harlan of the U.S. Supreme Court while dealing with the membership clause in the McCarran Act, 1950 distinguished between active `knowing' membership and passive, merely nominal membership in a subversive organization, and observed :
"The clause does not make criminal all association with an organization which has been shown to engage in illegal activity. A person may be foolish, deluded, or perhaps mere optimistic, but he is not by this statute made a criminal. There must be clear proof that the defendant specifically intends to accomplish the aims of the organization by resort to violence."
12. In Elfbrandt vs. Russell 384 US 17-19 (1966) Justice Douglas of the U.S. Supreme Court speaking for the majority observed :
"Those who join an organization but do not share its unlawful purpose and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. A law which applies to membership without the `specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of `guilt by association' which has no place here."
13. In Joint Anti-Fascist Refugee Committee vs. McGrath 341 US 123 at 174 (1951) Mr. Justice Douglas of the U.S. Supreme Court observed :
"In days of great tension when feelings run high, it is a temptation to take shortcuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive
influence of our own design that destroys us from
within."
14. We respectfully agree with the above decisions
of the U.S. Supreme Court, and are of the opinion
that they apply in our country too. We are living
in a democracy, and the above observations apply
to all democracies.”
2.1 That thereafter the Division Bench of this Court in
another decision in the case of Arup Bhuyan (supra) whist
relying upon Raneef (supra) and relying upon the same
American doctrines which were earlier considered in the case
of Raneef (supra) has observed in paragraph 12 as under:
“We respectfully agree with the above
decisions, and are of the opinion that they apply
to India too, as our fundamental rights are
similar to the Bill of Rights in the U.S.
Constitution. In our opinion, Section 3(5) cannot
be read literally otherwise it will violate Articles
19 and 21 of the Constitution. It has to be read in
the light of our observations made above. 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. Hence, the conviction of the appellant
under Section 3(5) of the TADA is also not
sustainable.”
2.2 At this stage it is required to be noted that at the time
when Raneef (supra) and Arup Bhuyan (Supra) were decided
neither Section 10(i) of the Unlawful Activities (Prevention)
Act, 1967 (hereinafter referred to as the ‘UAPA Act, 1967’)
was under challenge and/or the constitutionality of the said
provision was under challenge nor even the Union of India
was a party to the said proceedings and the Division Benches
of the Court in the aforesaid two decisions made observations
on Section 10(a)(i) of the UAPA Act, 1967 without giving any
opportunity to the Union of India. Therefore, the Union of
India filed the applications seeking permission to file a review
petition on the ground that the interpretation made by this
Court in the aforesaid two decisions would be prejudicial to
their interests and therefore, the Union of India had a right to
be heard. The State of Assam also preferred the review
petitions.
2.3 Having regard to the important issue raised by the
learned Solicitor General and the Senior Counsel for the State
of Assam, by order dated 26.08.2014 reported in (2015) 12
SCC 702 the matter is referred to the larger Bench. While
referring the matter to the larger Bench this Court noted the
submissions made by the learned Solicitor General in
paragraphs 4 to 7 and 10 to 11 as under:
“4.Mr. Ranjit Kumar, learned Solicitor
General appearing for the Union of India, has
submitted that in the case of Arup Bhuyan vs.
State of Assam, 2011 (3) SCC 377, this Court has
read down the provision to the detriment of the
interest of the Union of India when it was not a
party before it. He has also invited our attention to
the decision in Sri Indra Das vs. State of Assam
2011 (3) SCC 380. In Arup Bhuyan's case as well
as in the case Sri Indra Das, the two-Judge Bench
has referred to many authorities of Supreme Court
of United States of America and thereafter quoted
a passage from Kedar Nath vs. State of Bihar AIR
1962 SC 955 and relied on State of Kerala vs.
Raneef (2011) 1 SCC 784 and eventually opined
thus:
“27. We may also consider the legal position,
as it should emerge, assuming that the main s.
124A is capable of being construed in the literal
sense in which the Judicial Committee of the Privy
Council has construed it in the cases referred to
above. On that assumption, it is not open to this
Court to construe the section is such a way as to
avoid the alleged unconstitutionality by limiting
the application of the section in the way in which
the Federal Court intended to apply it ? In our
opinion, there are decisions of this Court which
amply justify our taking that view of the legal
position. This Court, in the case of R.M.D.
Chamarbaugwalla v. The Union of India (1) has
examined in detail the several decisions of this
Court, as also of the Courts in America and Australia. After examining those decisions, this Court came to the conclusion that if the impugned provisions of a law come within the constitutional powers of the legislature by adopting one view of the words of the impugned section or Act, the Court will take that view of the matter and limit its application accordingly, in preference to the view which would make it unconstitutional on another view of the interpretation of the words in question.
In that case, the Court had to choose between a definition of the expression 'Prize Competitions" as limited to those competitions which were of a gambling character and those which were not. The Court chose the former interpretation which made the rest of the provisions of the Act, Prize Competitions Act (XLII of 1955), with particular reference to ss. 4 and 5 of the Act and Rules 11 and 12 framed thereunder, valid. The Court held that the penalty attached only to those competitions which involved the element of gambling and those competitions in which success depended to a substantial degree on skill were held to be out of the purview of the Act.
The ratio decidendi in that case, in our opinion, applied to the case in hand in so far as we propose to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.”
5.It is submitted by Mr. Ranjit Kumar that such reading down of a provision should not have been done without impleading the Union of India as a party and moreover, when the constitutional validity was not called in question. He has drawn our attention to Section 10 of the Unlawful Activities (Prevention) Act, 1967. It reads as follows: “[10. Penalty for being member of an unlawful association, etc.- Where an association is declared unlawful by a notification issued under section 3 which has become effective under subsection (3) of that section,-(a) a person, who (i) is and continues to be a member of such (ii) takes part in meetings of such (iii) contributes to, or receives or solicits any contribution for the purpose of, such association; or association, shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine; and (b) a person, who is or continues to be a member of such association, or voluntarily does an act aiding or promoting in any manner the objects of such association and in either case is in possession of any unlicensed firearms, ammunition, explosive or other instrument or substance capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property, (i) and if such act has resulted in the death of any person, shall be punishable with death or imprisonment for life, and shall also be liable to fine; (ii) in any other case, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to fine.]”
6.The aforesaid provision was inserted by way of amendment with effect from 21/09/2004. Relying upon the said provision, it is contended by him that if the view expressed in Arup Bhuyan (supra) and Sri Indra Das (supra) is allowed to remain in the field various laws in other enactments would be affected. It is further urged by him that the Court has erroneously referred to its earlier judgment in Raneef's case wherein the basic fact was different, namely, the Social Democratic Party of India (SDPI) was not a banned organization. The learned Solicitor General would impress upon us that once an organization is banned, Section 10 of the 1967 Act would come into play. Learned Solicitor General has also drawn our attention to certain paragraphs in Raneef's case wherein it has been opined even assuming the PFI is an illegal organization, yet it remains to be considered whether all the members of the Organization can be categorically held to be guilty. It is put forth by him that the said judgment did not affect the provisions in other enactments inasmuch as the PFI was not a banned Organization, but after the decisions in Arup Bhuyan (supra) and Sri Indra Das (supra), the Trial Courts and the High Courts are relying on the said decisions by giving emphasis on the facet of mens rea. The submission in essence, is that had the Union of India been impleaded as a party it could have put forth its stand before the Court and then possibly such reading down of the provision would not have been required.
7.Mr. Jaideep Gupta, learned senior counsel appearing for the State of Assam, supporting the stand put forth by the Union of India has urged that if such an interpretation is allowed to stand the terrorism would spread and it will be difficult on the part of the State to control the said menace. It is further canvassed by him that the abuse of process of law would not affect the constitutional validity and that to when it is not under assail.
10.The crux of the matter as submitted by Mr. Ranjit Kumar, learned Solicitor General for Union of India, is that when any provision in Parliamentary legislation is read down, in the absence of Union of India it is likely to cause enormous harm to the interest of the State as in many cases certain provisions have been engrafted to protect the sovereignty and integrity of India.
11.The learned Solicitor General would contend that the authorities which have been placed reliance upon in both the judgments by the two-Judge Bench are founded on Bill of Rights which is different from Article 19 of the
He has referred to Article 19(1)(c) and 19(4) of the Constitution.
Article 19(1)(c) reads as follows.
“19(1)(c) to form associations or unions;”
The said article is further restricted by Article 19(4) which is as follows:
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of 4 [the sovereignty and integrity of India or] public order or morality, reasonable restrictions on the
exercise of the right conferred by the said sub-
clause.”
Relying upon the same it is highlighted by
the learned Solicitor General that the Court has
not kept this aspect in view while placing heavy
reliance on the foreign authorities which are
fundamentally not applicable to the interpretative
process of the provisions which have been enacted
in consonance with the provisions of the
Regard being had to the important issue
raised by the learned Solicitor General and Mr.
Jaideep Gupta, learned senior counsel for the
State of Assam, we think it appropriate that the
matter should be considered by a larger Bench.
Let the Registry place the papers before the
Hon'ble the Chief Justice of India for appropriate
orders.”
That is how the matter is listed before this Bench of
three judges.
2.4 The short issue before the Bench is whether the
judgments in Raneef (supra) and Arup Bhuyan (supra), have
been correctly decided and whether “active membership” is
required to be proven over and above the membership of a
banned organization under the UAPA, 1967. Another issue
which is required to be considered by this Bench is whether
American decisions concerning freedom of speech referred to
in the case of Raneef (supra) to which this Court agreed
could have been relied upon while considering the right to
freedom of speech available under the Constitution of India
more particularly Article 19(1)(c) and 19(4) of the Constitution
of India? Another question which is required to be
considered is whether this Court was justified in reading
down of a provision (Section 10(a)(i) of the UAPA Act, 1967)
without impleading the Union of India as a party and more
particularly when the constitutional validity of the aforesaid
provision was not called in question?
2.5 While appreciating the submissions on behalf of the
respective parties on the aforesaid issues, the relevant
provisions of the UAPA, 1967 are required to be referred to
which are as under:
“Section 2 – Definitions:
(1) In this Act, unless the context otherwise
requires,--
(a) association means any combination or body of
individuals;
(k) terrorist act has the meaning assigned to it in section 15, and the expressions terrorism and terrorist shall be construed accordingly;
(l) terrorist gang means any association, other than terrorist organisation, whether systematic or otherwise, which is concerned with, or involved in, terrorist act;
(m) terrorist organisation means an organisation listed in the 9[First Schedule] or an organisation operating under the same name as an organisation so listed;
(o) unlawful activity, in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),--
(i) which is intended, or supports any claim, to
bring about, on any ground whatsoever, the
cession of a part of the territory of India or the
secession of a part of the territory of India
from the Union, or which incites any
individual or group of individuals to bring
about such cession or secession; or
(ii) which disclaims, questions, disrupts or is
intended to disrupt the sovereignty and
territorial integrity of India; or
(iii) which causes or is intended to cause
disaffection against India;
(p) unlawful association means any association,--
(i) which has for its object any unlawful
activity, or which encourages or aids persons
to undertake any unlawful activity, or of
which the members undertake such activity;
or
(ii) which has for its object any activity which
is punishable under section 153A (45 of 1860)
or section 153B of the Indian Penal Code, or
which encourages or aids persons to
undertake any such activity, or of which the
members undertake any such activity:
Section 3 – Declaration of an association as unlawful
(1) If the Central Government is of opinion that any
association is, or has become, an unlawful
association, it may, by notification in the Official
Gazette, declare such association to be unlawful.
(2) Every such notification shall specify the grounds
on which it is issued and such other particulars as
the Central Government may consider necessary:
require the Central Government to disclose any fact
which it considers to be against the public interest
to disclose.
(3) No such notification shall have effect until the
Tribunal has, by an order made under section 4,
confirmed the declaration made therein and the
order is published in the Official Gazette:
Provided that if the Central Government is of
opinion that circumstances exist which render it
necessary for that Government to declare an
association to be unlawful with immediate effect, it
may, for reasons to be stated in writing, direct that
the notification shall, subject to any order that may
be made under section 4, have effect from the date
of its publication in the Official Gazette.
(4) Every such notification shall, in addition to its
publication in the Official Gazette, be published in
not less than one daily newspaper having
circulation in the State in which the principal office,
if any, of the association affected is situated, and
shall also be served on such association in such manner as the Central Government may think fit and all or any of the following modes may be followed in effecting such service, namely:—
(a) by affixing a copy of the notification to
some conspicuous part of the office, if any, of
the association; or
(b) by serving a copy of the notification, where
possible, on the principal office-bearers, if
any, of the association; or
(c) by proclaiming by beat of drum or by
means of loudspeakers, the contents of the
notification in the area in which the activities
of the association are ordinarily carried on; or
(d) in such other manner as may be prescribed.
Section 4 – Reference to Tribunal -
(1) Where any association has been declared unlawful by a notification issued under subsection (1) of section 3, the Central Government shall, within thirty days from the date of the publication of the notification under the said sub-section, refer the notification to the Tribunal for the purpose of adjudicating whether or not there is sufficient cause for declaring the association unlawful.
(2) On receipt of a reference under subsection (1), the Tribunal shall call upon the association affected by notice in writing to show cause, within thirty days from the date of the service of such notice, why the association
should not be declared unlawful.
(3) After considering the cause, if any, shown by the association or the office-bearers or members thereof, the Tribunal shall hold an inquiry in the manner specified in section 9 and after calling for such further information as it may consider necessary from the Central Government or from any office-bearer or member of the association, it shall decide whether or not there is sufficient cause for declaring the association to be unlawful and make, as expeditiously as possible and in any case within a period of six months from the date of the issue of the notification under subsection (1) of section 3, such order as it may deem fit either confirming the declaration made in the notification or cancelling the same.
(4) The order of the Tribunal made under subsection (3) shall be published in the Official Gazette.
Section 5 – Tribunal -
(1) The Central Government may, by notification in the Official Gazette, constitute, as and when necessary, a tribunal to be known as the "Unlawful Activities (Prevention) Tribunal" consisting of one person, to be appointed by the Central Government:
Provided that no person shall be so appointed unless he is a Judge of a High Court.
(2) If, for any reason, a vacancy (other than a temporary absence) occurs in the office of the presiding officer of the Tribunal, then, the Central Government shall appoint another person in
accordance with the provisions of this section to fill the vacancy and the proceedings may be continued before the Tribunal from the stage at which the vacancy is filled.
(3) The Central Government shall make available to the Tribunal such staff as may be necessary for the discharge of its functions under this Act.
(4) All expenses incurred in connection with the Tribunal shall be defrayed out of the Consolidated Fund of India.
(5) Subject to the provisions of section 9, the Tribunal shall have power to regulate its own procedure in all matters arising out of the discharge of its functions including the place or places at which it will hold its sittings.
(6) The Tribunal shall, for the purpose of making an inquiry under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:
(a) the summoning and enforcing the
attendance of any witness and examining him
on oath;
(b) the discovery and production of any
document or other material object producible
as evidence;
(c) the reception of evidence on affidavits;
(d) the requisitioning of any public record from
any court or office;
(e) the issuing of any commission for the
examination of witnesses.
(7) Any proceeding before the Tribunal shall be
deemed to be a judicial proceeding within the
meaning of sections 193 and 228 of the Indian
Penal Code (45 of 1860) and the Tribunal shall be
deemed to be a civil court for the purposes of
section 195 and 1 [Chapter XXVI] of the 2[Code].
Section 6 – Period of operation and
cancellation of notification -
(1) Subject to the provisions of sub-section (2) , a
notification issued under section 3 shall, if the
declaration made therein is confirmed by the
Tribunal by an order made under section 4,
remain in force for a period of 1 [five years] from
the date on which the notification becomes
effective.
(2) Notwithstanding anything contained in sub-
section (1), the Central Government may, either
on its own motion or on the application of any
person aggrieved, at any time, cancel the
notification issued under section 3, whether or
not the declaration made therein has been
confirmed by the Tribunal.”
3. Shri Tushar Mehta, learned Solicitor General has also
taken us to the background to the UAPA and the enactment
of Article 19(1) and 19(4) of the Constitution of India vide
Constitution (Sixteenth Amendment) Act, 1963. It is
submitted that exception to the freedom to form associations
under Article 19(1) was inserted in the form of sovereignty
and integrity of India in Article 19(4), after the National
Integration Council appointed a Committee on National
Integration and Regionalisation. The said committee was to
look into the aspect of putting reasonable restrictions in the
interests of the sovereignty and integrity of India. It is
submitted that pursuant to the acceptance of the
recommendations of the Committee, the Constitution
(Sixteenth Amendment) Act, 1963 was enacted to impose, by
law, reasonable restrictions in the interests of the sovereignty
and integrity of India. Article 19(1)(c) and 19(4) of the
Constitution of India reads as follows:
“19.(1)(c) to form associations or unions;”
The said is further restricted by Article 19(4)
which is as follows:
19(4) Nothing in sub-clause (c) of the said
clause shall affect the operation of any existing law
insofar as it imposes, or prevent the State from
making any law imposing, in the interests of the
sovereignty and integrity of India or public order or
morality, reasonable restrictions on the exercise of
the right conferred by the said sub-clause.”
Relying upon the same it is highlighted by the
learned Solicitor General that the Court has not kept
this aspect in view while placing heavy reliance on
the foreign authorities which are fundamentally not
applicable to the interpretative process of the
provisions which have been enacted in consonance
with the provisions of the Constitution of India.”
3.1 It is submitted that in order to implement the provision
of the 1963 Act, the Unlawful Activities (Prevention) Bill was
introduced in the Parliament. The main objective of the
UAPA is to make powers available for dealing with activities
directed against the integrity and sovereignty of India. He
has taken us to the preamble and the objects and reasons for
enactment of the UAPA. It is submitted that to achieve the
object and purpose for which the UAPA has been enacted,
Section 10(a)(i) provides that where an association is declared
unlawful by a notification issued under Section 3 which has
become effective under sub-section (3) of that Section, a
person, who is and continues to be a member of such
association shall be punishable with imprisonment for a term
which may extend to two years, and shall also be liable to
fine. It is submitted that therefore so long as Section 10(a)(i)
stands a person who is or continues to be a member of such
association shall be liable to be punished. It is submitted
that Section 10(a)(i) does not require any further overt act
and/or mens rea. It is submitted that mere membership of a
declared unlawful association, declared unlawful under
Section 3 is sufficient to warrant the prosecution and the
conviction.
3.2 It is submitted that under the provisions of the UAPA,
1967 before an organization/association is declared as
unlawful under Section 3 of the UAPA the procedure as
required under the UAPA namely Section 3 of the UAPA is
required to be followed. It is submitted that even thereafter
and after any association/organization is declared as
unlawful under Section 3 of the UAPA, such association
which has been declared unlawful by a Notification issued
under sub-section (1) of Section 3, within 30 days from the
date of the publication of the notification, the Central
Government is required to refer to the Tribunal for the
purpose of adjudicating whether or not, there is sufficient
cause for declaring the association unlawful. It is submitted
that as per Section 4(2) on receipt of a reference under sub-
section (1) of 4, the Tribunal shall thereafter call upon the
association affected by notice in writing to show cause within
30 days from the date of the service of such notice, why the
association be not declared unlawful? It is submitted that
thereafter and after considering the cause, if any, shown by
the association or the office-bearers or members thereof, the
Tribunal is required to hold an inquiry in the manner
specified in Section 9 and after calling for such further
information as it may consider necessary from the Central
Government or from office-bearer or member of the
association, the Tribunal shall decide whether or not there is
sufficient cause for declaring the association to be unlawful
and thereafter may pass such order as it may deem fit either
confirming the declaration made in the notification or
cancelling the same. It is submitted that the order of the
Tribunal made under sub-section (3) shall have to be
published in the Official Gazette.
3.3 Taking us to the relevant provisions of UAPA on
declaration of any organization/association as “unlawful”
namely Sections 3 to 6, learned Solicitor General has
submitted that from a perusal of the aforesaid
provisions/sections, it is clear that the declaration of an
organization as an “unlawful organization” is not on the basis
of an executive diktat. It is submitted that such designation
is actually a product of a robust adversarial process wherein
ample opportunity is given to the organization to appeal to
the better senses of a judicially trained mind in order to
justify its aims, objectives and activities being legal and not
“unlawful” within the constitutional setup. It is submitted
that the same must have a bearing whilst deciding any
question of criminalization of “mere membership”.
4. Now so far as the correctness of the observations made
by this Court in the case of Raneef (supra) and Arup Bhuyan
(supra) that while considering the offences under Sections
10(a)(i) the prosecution has to prove the “active membership”
of any person accused of being a member of a banned
organization, it is submitted that in the case of Arup Bhuyan
(supra) this Court has just followed the observations made in
the earlier decision in the case of Raneef (supra) in which
this Court just accepted and followed the American decisions
referred to on the freedom of speech applicable in America
and considering the American doctrine on freedom of speech.
It is submitted that as such this Court ought not to have
straight way followed and/or accepted the American doctrine
on freedom of speech without taking into consideration the
Constitutional provisions so far as the India is concerned,
more particularly Article 19(1)(c) and 19(4) of the
Constitution. It is submitted that this Court in the case of
Babulal Parate vs. State of Maharashtra, (1961) 3 SCR
423 has specifically rejected the importing of the American
doctrine on freedom of speech and specifically rejected the
said importing in the context of ‘determining criminality’ by
way of two Constitution Bench judgments which have not
even been considered by the learned Benches hearing the
case in Raneef (supra) and Arup Bhuyan (supra). The
learned Solicitor General has heavily relied upon paragraphs
23 to 28 of the decision in the case of Babulal (supra) and
paragraphs 16 & 17 of the decision in the case of Madhu
Limaye vs. Sub-Divisional Magistrate, (1970) 3 SCC 746.
4.1 Learned Solicitor General has also relied upon the
decisions of this Court in the case of Supdt., Central Prison
vs. Dr. Ram Manohar Lohia, (1960) 2 SCR 821 (paragraphs
9 to 11) and in the case of Ramlila Maidan Incident, In re,
(2012) 5 SCC 1 on the reliance to be placed on American
constitutional position in context of public order and free
speech. It is submitted that in the aforesaid it is specifically
observed that the American doctrine adumbrated in Schenck
case cannot be imported or applied. It is observed that under
our Constitution, this right - freedom of speech is not an
absolute right but is subject to the restrictions. It is
submitted that it is further observed that thus the position
under our Constitution is different. It is observed by this
Court in the aforesaid decisions that fundamental right
enshrined in the Constitution itself being made subject to
reasonable restrictions, the laws so enacted to specify certain
restrictions on the right to freedom of speech and expression
have to be construed meaningfully and with the
constitutional object in mind. It is submitted that it is
further observed that thus there is a marked distinction in
the language of law, its possible interpretation and
application under the Indian and the US Laws.
4.2 It is further submitted by the learned Solicitor General
that on numerous occasions this Court declined to import the
American doctrine of such subjects. Reliance is placed on
the decisions of this Court in the case of Joseph Kuruvilla
Vellukunnel vs. Reserve Bank of India, 1962 Supp (3) SCR
632 (para 50 & 75); M.C. Mehta vs. Union of India
(Shriram – Oleum Gas), (1987) 1 SCC 395 (para 29);
Ashoka Kumar Thakur vs. Union of India (2008) 6 SCC 1
(para 188 to 190) and Pathumma vs. State of Kerala,
(1978) 2 SCC 1 (para 23).
4.3 Making above submissions and relying upon the above
decisions, it is vehemently submitted by Shri Mehta, learned
Solicitor General that therefore the American doctrine of
“clear and present danger” [Schenck vs. United States, 249
U.S. 47 (1919)] and “imminent lawless action” [Brandenburg
vs. Ohio, 395 U.S. 444 (1969)] are alien to Indian
constitutional law.
4.5 Making above submissions, it is submitted that the
observations made by this Court in Raneef (supra) and Arup
Bhuyan (supra) following and/or relying upon the American
doctrines on freedom of speech may be overruled and the
statutory position be reaffirmed.
5. Now so far as reading down Section 3(5) of Terrorist and
Disruptive Activities (Prevention) Act, 1987, which is pari
materia to Section 10(a)(i) of UAPA Act, 1967 and reading
down the said provision to the extent by observing that mere
membership of a banned organization will not make a person
guilty unless he resorts to violence or incites people to
violence or creates public disorder by violence or incitement
to violence and that mere membership of a banned
organization will not incriminate a person is concerned, it is
vehemently submitted by Shri Tushar Mehta, learned
Solicitor General that as such in absence of challenge to the
relevant provisions, more particularly Section 10(a)(i) of the
UAPA, 1967, such a reading down was not permissible. It is
submitted that as such in the case of Raneef (supra), which
has been subsequently followed in the cases of Arup Bhuyan
(supra) and Indra Das v. State of Assam, (2011) 3 SCC
380, this Court was considering the bail application and the
constitutional validity of Section 10(a)(i) of the UAPA Act was
not under challenge.
5.1 Learned Solicitor General has relied upon the decision of
this Court in the case of Subramanian Swamy & Others v.
Raju through Member, Juvenile Justice Board & Another,
reported in (2014) 8 SCC 390 on as to when the power of
reading down of a provision can be exercised. Reliance is
placed on paragraphs 59 to 62 of the said judgment. It is
submitted that therefore when language in Section 10(a)(i) of
the UAPA Act is very clear and unambiguous and looking to
the object and purpose for which UAPA Act was enacted and
taking into consideration the plain and literal meaning of a
statute and in the absence of any constitutional challenge, it
was impermissible for this Court to read down the statute. It
is submitted that there was no occasion to “read down”
Section 10 of the UAPA Act in absence of a constitutional
challenge.
6. Shri Vinay Navare, learned Senior Counsel appearing on
behalf of the State of Assam, while adopting the submissions
made by Shri Tushar Mehta, learned Solicitor General, has in
addition submitted that under the scheme of a statute (UAPA)
every effort is made to ensure that every member of the
association is made aware of the fact that such association is
declared as unlawful.
6.1 It is further submitted that the language employed in
Section 10 is very significant in the present context. It
provides that “where an association is declared as unlawful
by notification under Section 3 which has become effective
under sub-section (3) of that Section.” It is submitted that
therefore it is only after notification under Section 3 has
become effective under sub-section (3), that the latter part of
that Section applies. It is submitted that language of Section
10(a)(i) is very cautiously worded – ‘who is and continues to
be a member of such association’. It is submitted that so if a
person ‘has been’ a member but does not ‘continue to be’ a
member after declaration, that does not attract mischief
under Section 10. The intention in the Section is that not
only is he a member on the day when the association is
declared unlawful but he continues to be a member. It is
submitted that therefore a person who is a member or wishes
to be a member is well aware of the fact that such an
association is declared unlawful and if he still wishes to
continue being a part of such an unlawful association it
shows a clear and conscious intention on his part and
Section 10 of the UAPA Act penalises this act of mere
membership with such unlawful association.
6.2 It is further submitted that Section 38 of the UAPA Act,
1967 provides that a person who associates himself or
professes to be associated with a terrorist organization with
intention to further its activities commits an offence relating
to the membership of a terrorist organization. It is submitted
that therefore it is seen that in case of a terrorist organization
mere membership is not sufficient but there has to be an act
with intention to further the activities of the terrorist
organization which is not the case under Section 10 with an
unlawful association.
6.3 It is submitted that there is a clear distinction between
the provisions under Section 10 which punish mere
membership of an unlawful association and Section 38 which
do not punish passive membership with terrorist
organization. It is submitted that the reason is that Section
10 has already undergone the rigours of Section 3 but
Section 38 has not undergone the rigours of Section 3 and it
is a delegated legislation involving inclusion of a name of an
organisation in the schedule. It is submitted that even if you
are a member, it gives an opportunity in Section 38 that the
terrorist organization was not a terrorist organization at the
time when you became a member and he is not taking part.
6.4 It is submitted that the United Liberation Front of
Assam (ULFA) has been declared to be an unlawful
association from time to time.
Making above submissions and relying upon the above
decisions, Shri Tushar Mehta, learned Solicitor General and
Shri Vinay Navare, learned Senior Counsel appearing on
behalf of the State of Assam have prayed to hold that the
observations/decisions of this Court in the cases of Raneef
(supra), Arup Bhuyan (supra) and Indra Das (supra) taking
the view that mere membership of a banned organization will
not incriminate a person unless he resorts to violence or
incites people to violence or does an act intending to create
disorder or disturbance of public peace by resort to violence
is not a good law, in view of the specific provision under
Section 10(a)(i) of the UAPA Act, 1967, the constitutionality of
which is not under challenge and even otherwise on merits
also looking to the object and purpose of enacting the UAPA
Act, 1967.
7. Shri Sanjay Parikh, learned Senior Counsel appearing
for the applicant – People’s Union for Democratic Rights has
heavily relied upon the subsequent decision of this Court in
the case of Indra Das (supra). It is submitted that in the said
decision, after following the decisions of this Court in the
cases of Raneef (supra) and Arup Bhuyan (supra), this
Court has rightly interpreted Section 3(5) of TADA Act, 1987
and Section 10(a)(i) of the UAPA Act, 1967 which is in
consonance with Articles 14, 19 and 21 of the Constitution.
It is submitted that in the case of Indra Das (supra), this
Court has observed and held as under:
“a. statutory provisions cannot be read in
isolation, but have to be read in consonance with the
fundamental rights guaranteed by our Constitution.
b. The Constitution is the highest law of the land
and no statute can violate it. If there is a statute
which appears to violate it we can either declare it
unconstitutional or we can read it down to make it
constitutional
c. Had there been no Constitution having
fundamental rights in it then of course a plain and
literal meaning could be given to Section 3(5) of TADA
or Section 10 of the Unlawful Activities (Prevention)
Act. But since there is a Constitution in our country
providing for democracy and fundamental rights we
cannot give these statutory provisions such a
meaning as that would make them unconstitutional.”
7.1 It is submitted that in the case of Indra Das (supra),
this Court has interpreted the relevant provisions of TADA
and UAPA to bring them in conformity with the Constitution.
7.2 It is further submitted that this Court has on several
occasions interpreted provisions to bring them in consonance
with the Constitution and even by reading down to save the
provisions from unconstitutionality. It is submitted that in
the case of People’s Union for Civil Liberties v. Union of
India, (2004) 9 SCC 580 (paragraphs 48 & 49), this Court
has read “mens rea” into the statute to save it from
unconstitutionality.
7.3 It is submitted that in the case of State of Gujarat v.
Shyamlal Mohanlal Choksi, 1965 (2) SCR 457, this Court
read down Section 94 of the Cr.P.C. to exclude persons
accused from its ambit. It is submitted that Shyamlal
Mohanlal Choksi (supra) was a special leave petition from a
High Court decision and the Union of India was not a party to
those proceedings.
7.4 On the submission made on behalf of the Union of India
that without hearing the Union of India, this Court ought not
to have and/or could not have read down Section 10(a)(i) of
the UAPA Act, 1967 or Section 3(5) of TADA Act, 1987, Shri
Sanjay Parikh, learned Senior Counsel has relied upon the
decision of this Court in the case of Sanjeev Coke
Manufacturing Company v. M/s Bharat Cooking Coal
Limited, reported in (1983) 1 SCC 147 (paragraph 25). It
is submitted that in the said decision, it is observed and held
by this Court that “no one may speak for the Parliament and
Parliament is never before the Court.” It is further observed
that “After Parliament has said what it intends to say, only
the Court may say what the Parliament meant to say, none
else.” It is further observed that “once a statute leaves
Parliament House, the Court’s is the only authentic voice
which may echo (interpret) the Parliament and the Court will
do the same with reference to the language of the statute and
other permissible aids.” It is submitted that while reading
down Section 10(a)(i) of the UAPA Act and Section 3(5) of the
TADA Act, this Court has interpreted the statutory provisions
in light of Articles 14, 19 and 21 of the Constitution. It is
submitted that judgments under reference correctly hold that
“mere membership of a banned organization 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.”
7.5 Now so far as the submission made by Shri Tushar
Mehta, learned Solicitor General that while deciding Raneef
(supra) and Arup Bhuyan (supra), this court ought not to
have relied upon the US Supreme Court judgments, Shri
Sanjay Parikh, learned Senior Counsel has submitted that in
the case of Shreya Singhal v. Union of India, (2015) 5 SCC
1, this Court has held that the legal position in India is not
different. He has relied upon the observations made in
paragraph 41 made in the case of Sherya Singhal (supra).
7.6 It is submitted that the decision of this Court in the
case of Shreya Singhal (supra) has been recently relied upon
and considered by one of the Hon’ble Judge of the
Constitution Bench in the case of Kaushal Kishor v. State of
Uttar Pradesh and Others, 2023 SCC OnLine SC 6, while
concurring on the question that the restrictions under Article
19(2) are exhaustive.
7.7 It is further submitted by Shri Sanjay Parikh, learned
Senior Counsel appearing on behalf of the applicant that
Shreya Singhal (supra) is the culmination of an unbroken
line of Indian precedent stipulating that speech or association
can be prevented or punished only if,
Speech or association is ‘intended’ or has the
‘tendency’ to disturb ‘public order’, ‘sovereignty and
integrity of India’, ‘security of the state’, or one of the
other permitted ground of restrictions under Article
19; and
The connection between the speech or association and
the ‘intended’ or likely effect on ‘public order’,
‘sovereignty and integrity of India’ or ‘security of the
state’ is “proximate” not “far- fetched, hypothetical or
problematical or too remote in the chain of its
relation.”
7.8 Shri Parikh, learned Senior Counsel has relied upon the
observations made by the Federal Court in the case of
Niharendu Dutt Majumdar v. The King Emperor 1942
F.C.R. 38 taking the view that “the acts or words complained
of must, either incite to disorder or must be such as to satisfy
reasonable men that that is their intention or tendency.” It is
submitted that the said decision has been approved and
adopted by this Court in the case of Kedar Nath v. State of
Bihar, AIR 1962 SC 955. He has relied upon the
observations made in paragraph 26 of Kedar Nath (supra).
7.9 It is further submitted that in the case of State of Bihar
v. Shailabala Devi, AIR 1952 SC 329, this Court asserted
that it was not sufficient for law restricting freedom of speech
and expression to be under one of the permitted heads of
restriction enumerated under Article 19(2), but must also
have a proximate link to it. The Patna High Court had found
that a pamphlet whose central theme was “to bring about a
bloody revolution and change completely the present order of
things”, fell foul of a provision targeting “words or signs or
visible representations which incite, or encourage, or tend to
incite to or encourage the commission of any offence of
murder or any cognizable offence involving violence.” It is
submitted that this Court however found that for rhetoric of
the kind used in the pamphlet to be justifiably restricted, the
State would have to establish that it was addressed to an
excited mob or other such exceptional circumstance.
7.10 Shri Sanjay Parikh, learned Senior Counsel has also
heavily relied upon the observations made in paragraph 45 in
the case of S. Rangarajan v. P. Jagjivan Ram and others,
(1989) 2 SCC 574, which read as under:
“45. …. There does indeed have to be a compromise
between the interest of freedom of expression and
special interests. But we cannot simply balance the
two interests as if they are of equal weight. Our
commitment of freedom of expression demands that it
cannot be suppressed unless the situations created
by allowing the freedom are pressing and the
community interest is endangered. The anticipated
danger should not be remote, conjectural or far-
fetched. It should have proximate and direct nexus
with the expression. The expression of thought
should be intrinsically dangerous to the public
interest. In other words, the expression should be
inseparably locked up with the action contemplated
like the equivalent of a “spark in a powder keg”.
7.11 It is further submitted that in the case of O.K. Ghosh v.
E.X. Joseph, AIR 1963 812, this Court was considering the
scope of the term ‘public order’ in Clause (4) of Article 19, that
allows for reasonable restrictions on the right to Freedom of
Association. It is submitted that this Court held that “the
words ‘public order’ occurs even in clause (2), which refers,
inter alia, to security of the State and public order. There can
be no doubt that the said words must have the same meaning
in both clauses (2) and (4).” It is further observed that “…a
restriction can be said to be in the interests of public order
only if the connection between the restriction and the public
order is proximate and direct. Indirect or far-fetched or unreal
connection between the restriction and public order would not
fall within the purview of the expression “in the interests of
public order.”
7.12 It is further submitted that in the case of Balwant Singh
v. State of Punjab, (1995) 3 SCC 214, it is observed and
held by this Court that only where the written or spoken
words have the tendency or intention of creating public
disorder or disturbance of law and order or affect public
tranquility, that the law needs to step in to prevent such an
activity. It is submitted that it is further observed that the
intention to cause disorder or incite people to violence is the
sine qua non of the offence under Section 153-A of the IPC
and the prosecution has to prove the existence of mens rea in
order to succeed.
7.13 It is further submitted that in the case of Kartar Singh
v. State of Punjab, (1994) 3 SCC 569, this Court held that:
i) mens rea is an essential ingredient of a crime;
ii) vague provisions can implicate innocent persons in
offences; and
iii) mens rea must be read into Section 2(i)(a) of TADA
It is submitted that the reasoning in Kartar Singh
(supra) will also apply to Section 10(a)(i) of the UAPA Act,
1967.
It is further submitted that in fact, even at the
Constituent Assembly debates, Dr. B.R. Ambedkar clarified
that
“…it is wrong to say that fundamental rights
in America are absolute. The difference between
the position under the American Constitution and
the Draft Constitution is one of form and not of
substance. That the fundamental rights in
America are not absolute rights is beyond
dispute. In support of every exception to the
fundamental rights set out in the Draft
Constitution, one can refer to at least one
judgment of the United States Supreme Court.
What the Draft Constitution has done is that
instead of formulating fundamental rights in
absolute terms and depending upon our Supreme
Court to come to the rescue of Parliament by
inventing the doctrine of police power, it permits
the State directly to impose limitations upon the
fundamental rights. There is really no difference
in the result. What one does directly the other
does indirectly. In both cases, the fundamental
rights are not absolute.”
7.14 It is submitted that the submissions made on behalf of
the Union of India by the Solicitor General are mostly on non-
applicability of American cases and they do not deal with the
applicability of the principle evolved in American cases and
their acceptance by the Indian Supreme Court.
8. It is further submitted that even otherwise the
provisions of Section 10(a)(i) of the UAPA Act and Section 3(5)
of the TADA Act are vague and overbroad and will have a
chilling effect and therefore this Court in the aforesaid three
decisions have rightly read down the said provisions to bring
them in consonance with Articles 14, 19 and 21 of the
8.1 It is further submitted by Shri Sanjay Parikh, learned
Senior Counsel that in the recent decision of this Court in the
case of Thawaha Fasal v. Union of India, 2021 SCC OnLine
SC 1000, this Court has observed and held that “mere
association with a terrorist organization is not sufficient to
attract Section 38 and mere support given to a terrorist
organization is not sufficient to attract Section 39.” It is
submitted that it is further observed that “association and
the support have to be with intention of furthering the
activities of a terrorist organization.”
8.2 It is further submitted that even if there can be
restrictions under Article 19(2), in that case also, the
restrictions should be reasonable and shall stood the test of
reasonableness or proportionality.
Making above submissions and relying upon the
aforesaid decisions, it is prayed to answer the reference
accordingly and not to disturb the view taken by this Court in
the cases of Raneef (supra); Arup Bhuyan (supra) and Indra
Das (supra).
9. In rejoinder to the submissions made by Shri Sanjay
Parikh, learned Senior Counsel appearing on behalf of the
applicant/intervener Shri Tushar Mehta, learned Solicitor
General has submitted that so far as the submissions made
by Shri Sanjay Parikh, learned Senior Counsel on
reasonability and proportionality, it is submitted that a
detailed adversarial judicial process prior to declaration of
organization as banned organization is required to be
undertaken under Sections 3 and 4 of the UAPA, 1967. It is
submitted that the said judicial adversarial process ensures
inbuilt reasonability and proportionality and ensures that
such provisions are just, fair and reasonable.
9.1 Now so far as the submission made by Shri Parikh,
learned senior counsel on mens rea element and reliance
placed upon the judgments in criminal law which have held
mens rea an essential ingredient of crime, it is submitted by
Shri Mehta, learned Solicitor General that the question of
mens rea may depend on the facts and circumstances of each
case and would have to be adjudicated during trial. It is
submitted that the judgments in Raneef (supra), Arup
Bhuyan (supra) and Indra Das (supra) as such do not deal
with the concept of mens rea and neither do the judgments in
America on which the reliance has been placed.
9.2 Now so far as the reliance placed upon the decisions
relating to IPC and more particularly the decisions of this
Court in the case of Kedar Nath Singh (supra), Balwant
Singh (supra) and Bidal (supra), it is submitted that the said
reliance may not be appropriate as the offences under the IPC
are standalone offences and are applied for a far wider
canvass than the offence of membership of banned
organization under the UAPA and TADA. It is submitted that
the banning of an organization under the UAPA takes place
after a detailed adversarial judicial process which is given
wider publicity, thereby ensuring reasonableness, limited
application and availability of information with regard to the
inherently legal nature of such banned organization. It is
submitted that the same is absent in IPC offences which can
be applied by any police officer investigating any offence,
without there being the presence of any banned organization
or the procedure preceding the banning of such organization.
It is submitted that therefore there is vast differences between
UAPA and IPC offences. It is submitted that in the present
case the Parliament in its wisdom and taking into
consideration the sovereignty of India has thought it fit to
enact the UAPA and provide under Section 10(a)(i) that mere
member of the banned organization itself is an offence.
9.3 Now so far as the submission of Shri Praikh, learned
Senior Counsel on vagueness and possibility of misuse of
Section 10(a)(i), it is submitted that as observed and held by
this Court in catena of decisions vagueness and possibility of
misuse cannot be a ground for reading down a declaration of
unconstitutionality. It is submitted that possibility of
abuse/misuse of a law would not be a relevant consideration
while considering the constitutionality of a provision.
Reliance is placed on the decisions of this Court in the
case of Kedar Nath Singh vs. State of Bihar, AIR 1962 SC
955; Kesavananda Bharti vs. State of Kerala, (1973) 4
SCC 225; T.N. Education Deptt. Ministerial and General
Subordinate Services Assn. vs. State of Tamil Nadu,
(1980) 3 SCC 97 and Mafatlal Industrial Ltd. vs. Union of
India, (1997) 5 SCC 536. It is submitted that in the
aforesaid decisions it is held that merely because power may
sometimes be abused, it is no ground for denying the
existence of power.
9.4 Now so far as the reliance placed upon the decision of
Thawaha Fasal vs. Union of India, (2021) SCC Online SC
1000 by Shri Parikh, learned Senior Counsel, it is
vehemently submitted by Shri Mehta, learned Solicitor
General that the said decision shall not be applicable while
considering the offence under Section 10(a)(i) of UAPA, 1967.
It is submitted that in the said judgment this Court was
dealing with the offence under Section 38 of UAPA, 1967 and
was not dealing with the provisions concerning membership.
Sections 38 and 39 of the UAPA, 1967 are worded completely
differently as compared to the provisions concerning
criminalization of membership of a banned organization. It is
submitted that therefore any observations made while
considering the different provision/offence may not be stricto
sensu applicable while considering Section 10(a)(i) of the
UAPA, 1967.
Making above submissions, it is prayed to declare that
the observations made by this Court in the case of Raneef
(supra), Arup Bhuyan (supra) and Indra Das (supra) are not
a good law taking the view that mere membership of a
banned organization will not make a person a guilty unless
he resorts to violence or incites people to violence or creates
public disorder by violence or incitement to violence.
10. Heard Shri Tushar Mehta, learned Solicitor General
appearing on behalf of Union of India, Shri Vinay Navare,
learned Senior Counsel appearing for the State of Assam and
Shri Sanjay Parikh, learned Senior Counsel appearing on
behalf of the appellant/intervener.
10.1 At the outset, it is required to be noted that pursuant to
the order passed by this Court reported in the case of Arup
Bhuyan vs. State of Assam, (2015) 12 SCC 702, the
present reference is before the larger Bench. The present
reference to the larger Bench is made on the request made on
behalf of the Union of India and the State of Assam doubting
the correctness of the decisions of this Court in the case of
Raneef (supra) and Arup Bhuyan (supra) taking the view on
reading down Section 10(a)(i) that mere membership of a
banned organization will not make a person a criminal/guilty
unless he resorts to violence or incites people to violence or
creates public disorder by violence or incitement to violence.
10.2 Therefore, this Court in the present reference is required
to consider the correctness of the decisions of this Court in
Raneef (supra), Arup Bhuyan (supra) and Indra Das Singh
(supra) to the extent as above.
10.3 Section 10 of the UAPA, 1967 reads as under:
“Section 10 in The Unlawful Activities
(Prevention) Act, 1967
1[10. Penalty for being member of an unlawful
association, etc.—Where an association is declared
unlawful by a notification issued under section 3
which has become effective under sub-section (3) of
that section,—
(a) a person, who—
(i) is and continues to be a member of such
(ii) takes part in meetings of such association; or
(iii) contributes to, or receives or solicits any contri-
bution for the purpose of, such association; or
association, shall be punishable with imprisonment
for a term which may extend to two years, and shall
also be liable to fine; and
(b) a person, who is or continues to be a member of
such association, or voluntarily does an act aiding
or promoting in any manner the objects of such
association and in either case is in possession of
any unlicensed firearms, ammunition, explosive or
other instrument or substance capable of causing
mass destruction and commits any act resulting in
loss of human life or grievous injury to any person
or causes significant damage to any property,—
(i) and if such act has resulted in the death of any
person, shall be punishable with death or
fine;
(ii) in any other case, shall be punishable with
imprisonment for a term which shall not be less
than five years but which may extend to
fine.]”
10.4 Having gone through the decision of this Court in the
case of Raneef (supra), it appears and cannot be disputed
that in the said case this Court was considering the bail
application. The constitutional validity of Section 10 more
particularly Section 10(a)(i) of the UAPA, 1967 was not under
challenge before this Court. It is also required to be noted
that even the Union of India was not a party and/or the
Union of India was not even heard while deciding the case of
Raneef (supra). Despite the above, this Court while deciding
the bail application has made certain observations that mere
membership of a banned organization will not make a person
a criminal and/or mere membership of a banned organization
cannot be an offence. In the case of Raneef (supra) this
Court has heavily relied upon and followed the American
Supreme Court decisions which were dealing with the
relevant provisions of the American Laws and/or the laws
prevailing in the America. If the entire judgment in the case
of Raneef (supra) is seen except following the American
Supreme Court decisions in the case of Scales vs. United
States [6 L Ed 2d 782]; Elfbrandt vs. Russell [16 L Ed 2d
321] and Joint Anti-Fascist Refugee Committee vs.
McGrath, [95 L Ed 817], there does not appear to be any
further discussion on the constitutional validity and the
validity of Section 10(a)(i) of UAPA which specifically provides
that if a person was and continues to be a member of the
banned organization, he can be said to have committed an
offence and he can be punished. Therefore, as such the
observations made by this Court in the case of Raneef
(supra) are to be treated having confined to the bail matter
only. At this stage, it is required to be noted that as such in
paragraph 8 this Court in the case of Raneef (supra) has
specifically observed that “we are presently only considering
the bail matter and are not deciding whether the respondent
is guilty or not”.
10.5 Now so far as the decision of this Court in the case of
Arup Bhuyan vs. State of Assam, (2011) 3 SCC 377, taking
the view that mere membership of a banned organization will
not incriminate a person unless he resorts to violence or
incites people to violence and does an act intended to create
disorder or disturbance of public peace by resort to
violence……., is concerned it is required to be noted that in
the said decision this Court has just followed the decision in
the case of Raneef (supra). In the said decision this Court
has also considered some other American Judgments of the
US Supreme Court (para 10 & 11).
10.6 From the judgment and order passed by this Court in
the case of Arup Bhuyan (Supra), it appears that after
referring to the decisions of the US Supreme Court in paras
10 & 11 thereafter this Court had read down Section 3(5) of
TADA and has observed that mere membership of a banned
organization will not incriminate a person unless he resorts
to violence or incites people to violence and does an act
intended to create disorder or disturbance of public peace by
resort to violence.
10.7 It is required to be noted that even while deciding Arup
Bhuyan (supra) neither the constitutional validity of Section
3(5) of the TADA nor the Union of India was heard. Even in
both the aforesaid decisions this Court had not taken into
consideration Article 19(1)(c) and Article 19(4) of the
10.8 In the case of Indra Das (supra) this Court has just
followed the earlier decision in the case of Raneef (supra)
and Arup Bhuyan (supra).
11 In light of the aforesaid factual aspects let us now
consider the correctness of the decisions of this Court in the
case of Raneef (supra), Arup Bhuyan (supra) and Indra Das
(supra).
11.1 Now so far as the reading down of Section 10(a)(i) of the
UAPA, 1967 by this Court in the case of Arup Bhuyan
(supra) is concerned, at the outset it is required to be noted
that such reading down of the provision of a statute could not
have been made without hearing the Union of India and/or
without giving any opportunity to the Union of India.
11.2 When any provision of Parliamentary legislation is read
down in the absence of Union of India it is likely to cause
enormous harm to the interest of the State. If the
opportunity would have been given to the Union of India to
put forward its case on the provisions of Section 10(a)(i) of
the UAPA, 1967, the Union of India would have made
submissions in favour of Section 10(a)(i) of the UAPA
including the object and purpose for enactment of such a
provision and even the object and purpose of UAPA. The
submission made by Shri Parikh, learned Senior Counsel
relying upon the decision of this Court in the case of Sanjeev
Coke (supra) that it is ultimately for the Court to interpret
and read down the provision to save any provision from
declaring as unconstitutional is concerned, it is true that it is
ultimately for the Court to interpret the law and/or particular
statute. However, the question is not the power of the
Courts. The question is whether can it be done without
hearing the Union of India?
11.3 Even otherwise in absence of any challenge to the
constitutional validity of Section 10(a)(i) of the UAPA there
was no question of reading down of the said provision by this
Court. Therefore, in absence of any challenge to the
constitutional validity of Section 10(a)(i) of UAPA, 1967 there
was no occasion for this Court to read down the said
provision.
11.4 Even otherwise as observed and held by this Court in
the case of Subramanian Swamy and others vs. Raju
through Member, Juvenile Justice Board and Anr., (2014)
8 SCC 390 reading down the provision of a statute cannot be
resorted to when the meaning of a provision is plain and
unambiguous and the legislative intent is clear. This Court
has thereafter laid down the fundamental principle of
“reading down doctrine” as under:
“Courts must read the legislation literally in the first
instance. If on such reading and understanding the vice of
unconstitutionality is attracted, the courts must explore
whether there has been an unintended legislative omission. If
such an intendment can be reasonably implied without
undertaking what, unmistakably, would be a legislative
exercise, the Act may be read down to save it from
unconstitutionality. At the cost of repetition, it is observed
that reading down a particular statute even to save it from
unconstitutionality is not permissible unless and until the
constitutional validity of such provision is under challenge
and the opportunity is given to the Union of India to defend a
particular parliamentary statute”.
11.5 In view of the above in all the aforesaid three decisions,
this Court ought not to have read down Section 10(a)(i) of the
UAPA, 1967 more particularly when neither the
constitutional validity of Section 10(a)(i) of the UAPA, 1967
was under challenge nor the Union of India was heard.
12.As observed hereinabove and even it can be seen from
the decisions of this Court in the case of Arup Bhuyan
(Supra) and Raneef (supra) that while deciding the abovesaid
cases this Court has followed the US Supreme Court
decisions on freedom of speech and on mere membership
without any criminality and/or overt act and mere
membership be said to have committed an offence or not.
Therefore, the next question which is posed for consideration
before this Court is whether this Court was justified/right in
following the US Supreme Court judgments which as such
were on interpretation and/or considering the laws of United
States.
12.1 How far the decisions of US Supreme Court on “freedom
of speech and/or the public order” can be made applicable
vis-à-vis the laws in India, few decisions of this Court on
applicability of the US Supreme Court decisions vis-à-vis the
laws applicable in India are required to be referred to and
considered.
12.2 In the case of Babulal Parate vs. State of Maharashtra,
(1961) 3 SCR 423, it is observed in paragraphs 23 to 27 as
under:
“23. The argument that the test of determining
criminality in advance is unreasonable, is
apparently founded upon the doctrine adumbrated
in Scheneck case [Scheneck v. U.S., 249, US 47]
that previous restraints on the exercise of
fundamental rights are permissible only if there be
a clear and present danger. It seems to us, however,
that the American doctrine cannot be imported
under our Constitution because the fundamental
rights guaranteed under Article 19(1) of the
Constitution are not absolute rights but, as pointed
out in State of Madras v. V.G. Row [(1952) 1 SCC
410 : 1952 SCR 597] are subject to the restrictions
placed in the subsequent clauses of Article 19.
There is nothing in the American Constitution
corresponding to clauses (2) to (6) of Article 19 of
our Constitution. The Fourteenth Amendment to
the U.S. Constitution provides, among other things,
that “no State shall make or enforce any law which
shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; ….”.
24. The framework of our Constitution is
different from that of the Constitution of the United
States. Then again, the Supreme Court of the
United States has held that the privileges and
immunities conferred by the Constitution are subject to social control by resort to the doctrine of police power. It is in the light of this background that the test laid down in Scheneck case [Scheneck v. U.S., 249, US 47] has to be understood.
25. The language of Section 144 is somewhat different. The test laid down in the section is not merely “likelihood” or “tendency”. The section says that the Magistrate must be satisfied that immediate prevention of particular acts is necessary to counteract danger to public safety etc. The power conferred by the section is exercisable not only where present danger exists but is exercisable also when there is an apprehension of danger.
26. Apart from this it is worthy of note that in Scheneck case [Scheneck v. U.S., 249, US 47] the Supreme Court was concerned with the right of freedom of speech and it observed:
“It well may be that the prohibition of law abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose…. We admit that in many places and in ordinary times the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.… The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force…. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a
right to prevent. It is a question of proximity and
degree.
27. Whatever may be the position in the United
States it seems to us clear that anticipatory action
of the kind permissible under Section 144 is not
impermissible under clauses (2) and (3) of Article
19. Both in clause (2) (as amended in 1951) and in
clause (3), power is given to the legislature to make
laws placing reasonable restrictions on the exercise
of the rights conferred by these clauses in the
interest, among other things, of public order. Public
order has to be maintained in advance in order to
ensure it and, therefore, it is competent to a
legislature to pass a law permitting an appropriate
authority to take anticipatory action or place
anticipatory restrictions upon particular kinds of
acts in an emergency for the purpose of maintaining
public order. We must, therefore, reject the
contention.”
12.3 In the case of Madhu Limaye vs. Sub-Divisional
Magistrate, (1970) 3 SCC 746, while reconsidering and
affirming the judgment of Babulal Parate (supra), this Court
considered in a combination of seven Hon’ble Judges,
speaking through Mr. Justice Hidayatullah, J., has observed
and held in paragraphs 16 & 17 as under:
“16. We may here observe that the overlap of
public order and public tranquillity is only partial.
The terms are not always synonymous. The latter is
a much wider expression and takes in many things
which cannot be described as public disorder. The
words “public order” and “public tranquillity” overlap
to a certain extent but there are matters which
disturb public tranquillity without being a
disturbance of public order. A person playing loud
music in his own house in the middle of the night
may disturb public tranquillity, but he is not
causing public disorder. “Public order” no doubt also
requires absence of disturbance of a state of serenity
in society but it goes further. It means, what the
Frunch designate order publique, defined as an
absence of insurrection, riot turbulence, or crimes of
violence. The expression “public order” includes
absence of all acts which are a danger to the
security of the State and also acts which are
comprehended by the expression “order publique”
explained above but not acts which disturb only the
serenity of others.
17. The English and American precedents and
legislation are not of such help. The Public Order
Act, 1936 was passed because in 1936 different
political organisations marched in uniforms causing
riots. In America the First Amendment freedoms
have no such qualifications as in India and the
rulings are apt to be misapplied to our
Constitution.”
12.4 Thereafter in the case of Supdt., Central Prison vs. Dr.
Ram Manohar Lohia, (1960) 2 SCR 821, this Court had
taken note of the difference in the American Law and the
Indian Law more particularly the restrictions under Article
19(2).
12.5 Thereafter in the case of Ramlila Maidan Incident, In
re, (2012) 5 SCC 1, it is observed and held in paragraphs 7
to 11 on applicability of the American doctrine/US Supreme
Court decisions as under:
“7. In contradistinction to the above approach of
the US Supreme Court, the Indian Constitution
spells out the right to freedom of speech and
expression under Article 19(1)(a). It also provides
the right to assemble peacefully and without arms
to every citizen of the country under Article 19(1)(b).
However, these rights are not free from any
restrictions and are not absolute in their terms and
application. Articles 19(2) and 19(3), respectively,
control the freedoms available to a citizen. Article
19(2) empowers the State to impose reasonable
restrictions on exercise of the right to freedom of
speech and expression in the interest of the factors
stated in the said clause. Similarly, Article 19(3)
enables the State to make any law imposing
conferred, again in the interest of the factors stated
therein.
8. In face of this constitutional mandate, the
American doctrine adumbrated in Schenck case [63
L Ed 470 : 249 US 47 (1919)] cannot be imported
and applied. Under our Constitution, this right is
not an absolute right but is subject to the
abovenoticed restrictions. Thus, the position under
our Constitution is different.
9. In Constitutional Law of India by H.M. Seervai (4th Edn.), Vol. 1, the author has noticed that the provisions of the two Constitutions as to freedom of speech and expression are essentially different. The difference being accentuated by the provisions of the Indian Constitution for preventive detention which have no counterpart in the US Constitution. Reasonable restriction contemplated under the Indian Constitution brings the matter in the domain of the court as the question of reasonableness is a question primarily for the court to decide. (Babulal Parate v. State of Maharashtra [AIR 1961 SC 884 : (1961) 2 Cri LJ 16 : (1961) 3 SCR 423] )
10. The fundamental right enshrined in the Constitution itself being made subject to reasonable restrictions, the laws so enacted to specify certain restrictions on the right to freedom of speech and expression have to be construed meaningfully and with the constitutional object in mind. For instance, the right to freedom of speech and expression is not violated by a law which requires that the name of the printer and publisher and the place of printing and publication should be printed legibly on every book or paper.
11. Thus, there is a marked distinction in the language of law, its possible interpretation and application under the Indian and the US laws. It is significant to note that the freedom of speech is the bulwark of a democratic Government. This freedom is essential for proper functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties,
giving succour and protection to all other liberties.
It has been truly said that it is the mother of all
other liberties. Freedom of speech plays a crucial
role in the formation of public opinion on social,
political and economic matters. It has been
described as a “basic human right”, “a natural
right” and the like. With the development of law in
India, the right to freedom of speech and expression
has taken within its ambit the right to receive
information as well as the right of press.”
12.6 In the case of Joseph Kuruvilla Vellukunnel vs.
Reserve Bank of India, 1962 Supp (3) SCR 632, it is
observed in para 75 that the aid of American concepts, laws
and precedents in the interpretation of our laws is not always
without its dangers and they have therefore to be relied upon
with some caution if not, with hesitation because of the
difference in the nature of those laws and of the institutions
to which they apply.
12.7 In the case of State of Bihar vs. Union of India, (1970)
1 SCC 67, it is observed and held in para 13 as under:
“Our attention was drawn to some provisions
of the American Constitution and of the Constitution
Act of Australia and several decisions bearing on the
interpretation of provision which are somewhat
similar to Art. 131. But as the similarity is only
limited, we do not propose to examine either the
provisions referred to or the decisions to which our
attention was drawn. In interpreting our
Constitution we must not be guided by decisions
which do not bear upon provisions identical with
those in our Constitution.”
12.8 In the case of Ashok Kumar Thakur vs. Union of
India, (2008) 6 SCC 1, it is observed in para 165 as under:
“165. At the outset, it must be stated that the
decisions of the United States Supreme Court were
not applied in the Indian context as it was felt that
the structure of the provisions under the two
Constitutions and the social conditions as well as
other factors are widely different in both the
countries. Reference may be made to Bhikaji Narain
Dhakras & Ors. Vs. The State of Madhya Pradesh &
Anr.56 and A.S. Krishna Vs. State of Madras57
wherein this Court specifically held that the due
process clause in the Constitution of the United
States of America is not applicable to India. While
considering the scope and applicability of Article
19(1)(g) in Kameshwar Prasad and Others Vs. State
of Bihar and Another, it was observed –
“As regards these decisions of the
American Courts, it should be borne in mind
that though the First Amendment to the
Constitution of the United States reading
“Congress shall make no law ….abridging the
freedom of speech….” appears to confer no
power on the Congress to impose any
restriction on the exercise of the guaranteed
right, still it has always been understood that
the freedom guaranteed is subject to the police
power – the scope of which however has not
been defined with precision or uniformly.”
12.9 In the similar case of Kesavananda Bharati case,
(1973) 4 SCC 225, it is noticed by this Court that there are
structural differences in the Constitution of India and the
Constitution of the United States of America.
13.Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the different position of laws in US and in our country more particularly faced with Articles 19(1)(c) and 19(4) of the Constitution of India under which the right to freedom of speech is subject to reasonable restrictions and is not an absolute right and the constitution permits the Parliament to frame the laws taking into consideration the public order and/or the sovereignty of India, without noticing the differences in American Laws and the Indian laws, this Court in the case of Arup Bhuyan (supra) and Raneep (supra) has erred in straightway and directly following the US Supreme Court decisions and that too without adverting to the differences and the position of laws in India. 13.1 In the aforesaid two decisions without noticing the differences of the US Supreme Court (referred to in the said decisions) this Court has just followed the American decisions to which we are not agreeable. This Court ought to have considered the differences in the American laws and the Indian laws more particularly the provisions in the Indian Constitution. By the aforesaid we do not say for a moment that in a given case the US Supreme Court decisions may not be taken into consideration and/or may not be a guidance. Before following the American decisions, the Indian Courts are required to consider the difference in the nature of the laws applicable in the respective countries. 13.2 As observed and held by this Court in the case of Joseph Kuruvilla Vellukunnel (supra), the aid of American concepts, laws and precedents in the interpretation to which laws is not always without its dangers and they have therefore to be relied upon with some caution if not with hesitation because of the difference in the nature of those laws and the institutions to which they apply.
14.Now the next question which is posed for consideration
before this Court is whether Section 10(a)(i) is required to be
read down so as to save the said provision from being
declared unconstitutional and is required to be read down as
had been done in the case of Arup Bhuyan (supra) and
Raneep (supra) that mere membership of a banned
organization will not incriminate a person unless he resorts
to violence or incites people to violence and does an act
intended to create disorder or disturbance of public peace by
resort to violence meaning thereby over and above the
membership of a banned organization there must be a mens
rea required to be established and proved and/or there must
be a further overt act? While deciding this issue elaborate
submissions have been made by Shri Tushar Mehta, learned
Solicitor General, Shri Vinay Navare, learned Senior Counsel
appearing for the State of Assam and Shri Sanjay Parikh,
learned Senior Counsel appearing on behalf of the
appellant/intervener.
14.1 While considering the aforesaid issue relevant
provisions of the Constitution of India and the UAPA, 1967
are required to be referred to which are as under:
“19. Protection of certain rights regarding
freedom of speech, etc.—(1) All citizens shall
have the right—
(c) to form associations or unions [or co-
operative societies];
[(2) Nothing in sub-clause (a) of clause (1) shall
affect the operation of any existing law, or prevent
the State from making any law, in so far as such
law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-
clause in the interests of [the sovereignty and
integrity of India,] the security of the State,
friendly relations with foreign States, public order,
decency or morality or in relation to contempt of
court, defamation or incitement to an offence.]
(4) Nothing in sub-clause (c) of the said clause
shall affect the operation of any existing law in so
far as it imposes, or prevent the State from
making any law imposing, in the interests of [the
sovereignty and integrity of India or] public order
or morality, reasonable restrictions on the exercise
of the right conferred by the said sub-clause.”
Relevant provisions of UAPA of 1967 are as under:
2. Definitions.—(1) In this Act, unless the context
otherwise requires,—
(a) “association” means any combination or body of
individuals;
9[(ec) “person” includes—
(i) an individual,
(ii) a company,
(iii) a firm,
(iv) an organisation or an association of persons or a
body of individuals, whether incorporated or not,
(v) every artificial juridical person, not falling within any
of the preceding sub-clauses, and
(vi) any agency, office or branch owned or controlled by
any person falling within any of the preceding sub-
clauses;]
(k) “terrorist act” has the meaning assigned to it in
Section 15, and the expressions “terrorism” and
“terrorist” shall be construed accordingly;
(l) “terrorist gang” means any association, other than
terrorist organisation, whether systematic or
otherwise, which is concerned with, or involved in,
terrorist act;
(m) “terrorist organisation” means an organisation listed
in the [First Schedule] or an organisation operating
under the same name as an organisation so listed;
(p) “unlawful association” means any association,—
(i) which has for its object any unlawful activity, or which
encourages or aids persons to undertake any
unlawful activity, or of which the members undertake
such activity; or
(ii) which has for its object any activity which is
punishable under Section 153-A or Section 153-B of
the Indian Penal Code (45 of 1860), or which
encourages or aids persons to undertake any such
activity, or of which the members undertake any such
activity:
Provided that nothing contained in sub-clause (ii) shall apply to the State of Jammu and Kashmir;
3. Declaration of an association as unlawful.— (1) If the Central Government is of opinion that any association is, or has become, an unlawful association, it may, by notification in the Official Gazette, declare such association to be unlawful.
(2) Every such notification shall specify the grounds on which it is issued and such other particulars as the Central Government may consider necessary:
require the Central Government to disclose any fact which it considers to be against the public interest to disclose.
(3) No such notification shall have effect until the Tribunal has, by an order made under Section 4, confirmed the declaration made therein and the order is published in the Official Gazette:
Provided that if the Central Government is of opinion that circumstances exist which render it necessary for that Government to declare an association to be unlawful with immediate effect, it may, for reasons to be stated in writing, direct that the notification shall, subject to any order that may be made under Section 4, have effect from the date of its publication in the Official Gazette.
(4) Every such notification shall, in addition to its publication in the Official Gazette, be published in not less than one daily newspaper having circulation in the State in which the principal office, if any, of the association affected is situated, and shall also be served on such association in such manner as the Central Government may think fit and all or any of
the following modes may be followed in effecting such
service, namely:
(a) by affixing a copy of the notification to some
conspicuous part of the office, if any, of the
(b) by serving a copy of the notification, where possible,
on the principal office-bearers, if any, of the
(c) by proclaiming by beat of drum or by means of
loudspeakers, the contents of the notification in the
area in which the activities of the association are
ordinarily carried on; or
(d) in such other manner as may be prescribed.
4. Reference to Tribunal.—(1) Where any
association has been declared unlawful by a
notification issued under sub-section (1) of Section 3,
the Central Government shall, within thirty days from
the date of the publication of the notification under
the said sub-section, refer the notification to the
Tribunal for the purpose of adjudicating whether or
not there is sufficient cause for declaring the
association unlawful.
(2) On receipt of a reference under sub-section (1),
the Tribunal shall call upon the association affected
by notice in writing to show cause, within thirty days
from the date of the service of such notice, why the
association should not be declared unlawful.
(3) After considering the cause, if any, shown by
the association or the office-bearers or members
thereof, the Tribunal shall hold an inquiry in the
manner specified in Section 9 and after calling for
such further information as it may consider necessary
from the Central Government or from any office-
bearer or member of the association, it shall decide
whether or not there is sufficient cause for declaring the association to be unlawful and make, as expeditiously as possible and in any case within a period of six months from the date of the issue of the notification under sub-section (1) of Section 3, such order as it may deem fit either confirming the declaration made in the notification or cancelling the same.
(4) The order of the Tribunal made under subsection (3) shall be published in the Official Gazette.
8. Power to notify places for the purpose of an unlawful association.—(1) Where an association has been declared unlawful by a notification issued under Section 3 which has become effective under subsection (3) of that section, the Central Government may, by notification in the Official Gazette, notify any place which in its opinion is used for the purpose of such unlawful association.
Explanation.—For the purposes of this sub-section, “place” includes a house or building, or part thereof, or a tent or vessel.
(2) On the issue of a notification under sub-section (1), the District Magistrate within the local limits of whose jurisdiction such notified place is situate or any officer authorised by him in writing in this behalf shall make a list of all movable properties (other than wearing-apparel, cooking vessels, beds and beddings, tools of artisans, implements of husbandry, cattle, grain and foodstuffs and such other articles as he considers to be of a trivial nature) found in the notified place in the presence of two respectable witnesses.
(3) If, in the opinion of the District Magistrate, any articles specified in the list are or may be used for the
purpose of the unlawful association, he may make an order prohibiting any person from using the articles save in accordance with the written orders of the District Magistrate.
(4) The District Magistrate may thereupon make an order that no person who at the date of the notification was not a resident in the notified place shall, without the permission of the District Magistrate, enter, or be on or in, the notified place:
apply to any near relative of any person who was a resident in the notified place at the date of the notification.
(5) Where in pursuance of sub-section (4), any person is granted permission to enter, or to be on or in, the notified place, that person shall, while acting under such permission, comply with such orders for regulating his conduct as may be given by the District Magistrate.
(6) Any police officer, not below the rank of a subinspector, or any other person authorised in this behalf by the Central Government may search any person entering, or seeking to enter, or being on or in, the notified place and may detain any such person for the purpose of searching him:
Provided that no female shall be searched in pursuance of this sub-section except by a female.
(7) If any person is in the notified place in contravention of an order made under sub-section (4), then, without prejudice to any other proceedings which may be taken against him, he may be removed therefrom by any officer or by any other person authorised in this behalf by the Central Government.
(8) Any person aggrieved by a notification issued in
respect of a place under sub-section (1) or by an order
made under sub-section (3) or sub-section (4) may,
within thirty days from the date of the notification or
order, as the case may be, make an application to the
Court of the District Judge within the local limits of
whose jurisdiction such notified place is situate—
(a) for declaration that the place has not been used for
the purpose of the unlawful association; or
(b) for setting aside the order made under sub-section (3)
or sub-section (4),
and on receipt of the application the Court of the
District Judge shall, after giving the parties an
opportunity of being heard, decide the question.
[10. Penalty for being member of an unlawful
association, etc.—Where an association is declared
unlawful by a notification issued under Section 3
which has become effective under sub-section (3) of
that section,—
(a) a person, who—
(i) is and continues to be a member of such association;
or
(ii) takes part in meetings of such association; or
(iii) contributes to, or receives or solicits any contribution
for the purpose of, such association; or
association,
shall be punishable with imprisonment for a term
which may extend to two years, and shall also be
liable to fine; and
(b) a person, who is or continues to be a member of such
association, or voluntarily does an act aiding or
promoting in any manner the objects of such
association and in either case is in possession of any
unlicensed firearms, ammunition, explosive or other
instrument or substance capable of causing mass
destruction and commits any act resulting in loss of
human life or grievous injury to any person or causes
significant damage to any property,—
(i) and if such act has resulted in the death of any
person, shall be punishable with death or
imprisonment for life, and shall also be liable to fine;
(ii) in any other case, shall be punishable with
imprisonment for a term which shall not be less than
five years but which may extend to imprisonment for
life, and shall also be liable to fine.]
13. Punishment for unlawful activities.—(1)
Whoever—
(a) takes part in or commits, or
(b) advocates, abets, advises or incites the commission
of,
any unlawful activity, shall be punishable with
imprisonment for a term which may extend to seven
years, and shall also be liable to fine.
(2) Whoever, in any way, assists any unlawful
activity of any association, declared unlawful under
Section 3, after the notification by which it has been
so declared has become effective under sub-section (3)
of that section, shall be punishable with
imprisonment for a term which may extend to five
years, or with fine, or with both.
(3) Nothing in this section shall apply to any treaty,
agreement or convention entered into between the
Government of India and the Government of any other
country or to any negotiations therefor carried on by
any person authorised in this behalf by the
Government of India.
38. Offence relating to membership of a
terrorist organisation.—(1) A person, who associates
himself, or professes to be associated, with a terrorist
organisation with intention to further its activities,
commits an offence relating to membership of a
terrorist organisation:
Provided that this sub-section shall not apply
where the person charged is able to prove—
(a) that the organisation was not declared as a terrorist
organisation at the time when he became a member
or began to profess to be a member; and
(b) that he has not taken part in the activities of the
organisation at any time during its inclusion in the
[First Schedule] as a terrorist organisation.
(2) A person, who commits the offence relating to
membership of a terrorist organisation under sub-
section (1), shall be punishable with imprisonment for
a term not exceeding ten years, or with fine, or with
both.
39. Offence relating to support given to a
terrorist organisation.—(1) A person commits the
offence relating to support given for a terrorist
organisation,—
(a) who, with intention to further the activity of a
terrorist organisation,—
(i) invites support for the terrorist organisation, and
(ii) the support is not or is not restricted to provide
money or other property within the meaning of
Section 40; or
(b) who, with intention to further the activity of a
terrorist organisation, arranges, manages or assists in
arranging or managing a meeting which, he knows, is —
(i) to support the terrorist organisation, or
(ii) to further the activity of the terrorist organisation, or
(iii) to be addressed by a person who associates or
professes to be associated with the terrorist
organisation; or
(c) who, with intention to further the activity of a
terrorist organisation, addresses a meeting for the
purpose of encouraging support for the terrorist
organisation or to further its activity.
(2) A person, who commits the offence relating to
support given to a terrorist organisation under sub-
section (1) shall be punishable with imprisonment for
a term not exceeding ten years, or with fine, or with
both.”
Thus, the rights guaranteed under Article 19(1)(a) (Right
to freedom of speech and expression) and under Article 19(1)
(c) (Right to form association or unions) are not absolute
rights, but are subject to reasonable restrictions as per
Article 19(2) and 19(4) of the Constitution of India. Article 19
(2) (3) & (4) have been amended vide the Constitution
(Sixteenth Amendment) Act, 1963 and the words “sovereignty
and integrity of India” have been inserted. Therefore, as per
Article 19(2)(3) & (4) nothing in clause (a), (b) and (c) of
clause 1 of Article 19 shall affect the operation of any existing
law or prevent the State from making any law in so far as
such law imposes reasonable restrictions on the exercises of
the right conferred by the said sub-clauses in the interests of
sovereignty and integrity of India, the security of State……
As per Article 19(4) nothing in sub-clause (c) (Right to form
Associations or Unions) shall affect the operation of any
existing law in so far as it imposes, or prevent the State from
making any law imposing, in the interests of sovereignty
and integrity of India or public order or morality,
reasonable restrictions on the exercise of the right conferred
by the said sub clause. At this stage the statement of objects
and reasons for amending Article 19(2)(3) & (4) are required
to be referred to and considered.
The statements of objects and reasons appended to the
Constitution (Sixteenth Amendment) Bill, 1963 which was
enacted as the Constitution (Sixteenth Amendment) Act,
1963 reads as under:
STATEMENT OF OBJECTS AND REASONS
The Committee on National Integration and
Regionalism appointed by the National Integration
Council recommended that article 19 of the
Constitution be so amended that adequate powers
become available for the preservation and
maintenance of the integrity, and sovereignty of the
Union. The Committee were further of the view that
every candidate for the membership of a State
Legislature or Parliament, and every aspirant to, and
incumbent of, public office should pledge himself to
uphold the Constitution and to preserve the integrity
and sovereignty of the Union and that forms of oath in
the Third Schedule to the Constitution should be
suitably amended for the purpose. It is proposed to
give effect to these recommendations by amending
clauses (2), (3) and (4) of article 19 for enabling the
State to make any law imposing reasonable
restrictions on the exercise of the rights conferred by
sub-clauses (a), (b) and (c) of clause (1) of that article
in the interests of the sovereignty and integrity of
India.”
14.2 The UAPA, 1967 has been enacted in exercise of powers
conferred under Article 19(2) & (4) of the Constitution of
India. At this stage, it is required to be noted that exceptions
to the freedom to form associations under Article 19(1) was
inserted in the form of sovereignty and integrity of India
under Article 19(4), after the National Integration Council
(NIC) appointed a Committee on National Integration and
Regionalisation. The said Committee was to look into the
aspect of putting reasonable restrictions in the interests of
the sovereignty and integrity of India. Pursuant to the
acceptance of the recommendations of the said Committee,
the Constitution (Sixteenth Amendment) Act, 1963 came to
be enacted to impose by law, reasonable restrictions in the
interests of sovereignty and integrity of India. In order to
implement the provisions of 1963 Act, the Unlawful Activities
(Prevention) Bill was introduced in the Parliament. The main
objective of the UAPA is to make powers available for dealing
with activities directed against the integrity and sovereignty
of India. It is also required to be noted that pursuant to the
recommendation of the Committee on National Integration
and Regionalisation appointed by the National Integration
Council Act on whose recommendation the Constitution
(Sixteenth Amendment) Act, 1963 was enacted, UAPA has
been enacted. It appears that National Integration Council
appointed a Committee on National Integration and
Regionalisation to look into, inter alia, the aspect of putting
reasonable restrictions in the interests of sovereignty and
integrity of India and thereafter the UAPA has been enacted.
Therefore, the UAPA has been enacted to make powers
available for dealing with the activities directed against
integrity and sovereignty of India.
14.3 Now let us consider the Preamble of the UAPA, 1967.
As per Preamble, UAPA has been enacted to provide for the
more effective prevention of certain unlawful activities of
individuals and associations and dealing with terrorist
activities and for matters connected therewith. Therefore the
aim and object of enactment of UAPA is also to provide for
more effective prevention of certain unlawful activities. That
is why and to achieve the said object and purpose of effective
prevention of certain unlawful activities the Parliament in its
wisdom has provided that where an association is declared
unlawful by a notification issued under Section 3, a person,
who is and continues to be a member of such association
shall be punishable with imprisonment for a term which may
extend to 2 years, and shall also be liable to fine. Therefore,
the Parliament in its wisdom had thought it fit that once an
association is declared unlawful after following due
procedure as required under Section 3 and subject to the
approval by the Tribunal still a person continues to be a
member of such association is liable to be
punished/penalized.
14.4 At this stage it is required to be noted that before an
association is declared unlawful, the procedure as required
under Section 3 of the Act is required to be
followed/undertaken. As per Section 3(1) if the Central
Government is of the opinion that any association is, or has
become an unlawful association, it may, by notification in the
Official Gazette, declare such association to be unlawful. As
per Section 3(2) every such notification shall specify the
grounds on which it is issued and such other particulars as
the Central Government may consider necessary….subject to
the right of the Central Government not to disclose any fact
which it considers to be against the public interest to
disclose. Section 3(3) provides that no such notification shall
have effect until the Tribunal has, by an order made under
Section 4, confirmed the declaration made therein and the
order is published in the Official Gazette. It also confers
power upon the Central Government to declare an
association to be unlawful with immediate effect if the Central
Government is of the opinion that circumstances exist which
render it necessary to declare an association to be unlawful
with immediate effect, however subject to the reasons to be
stated in writing and subject to any order that may be made
under Section 4. As per Section 4 every such notification
shall in addition to its publication in the Official Gazette be
published in not less than one daily newspaper having
circulation in the State in which the principal office, if any, of
the association affected is situated, and shall be served on
such association in such a manner as the Central
Government may think fit. As per Section 4 where any
association has been declared unlawful by a notification
issued under sub-section (1) of Section 3, the Central
Government is required, within thirty days from the date of
the publication of the notification, refer the notification to the
Tribunal for the purpose of adjudicating whether or not there
is sufficient cause for declaring the association unlawful. As
per Section 4(2) on receipt of a reference the Tribunal shall
call upon the association affected by notice in writing to show
cause, why the association should not be declared unlawful.
Thereafter the Tribunal is required to hold an inquiry in the
manner specified in Section 9 and after calling for such
further information as it may consider necessary from the
Central Government or from any office-bearer or member of
the association, it shall decide whether or not there is
sufficient cause for declaring the association to be unlawful
and make, as expeditiously as possible and in any case
within a period of six months from the date of the issue of the
notification under sub-section (1) of Section 3, such order as
it may deem fit either confirming the declaration made in the
notification or cancelling the same.
14.5 Thus from the aforesaid it can be seen that before any
organization is declared unlawful a detailed procedure is
required to be followed including the wide publicity and even
the right to a member of such association to represent before
the Tribunal. As observed hereinabove the notification issued
by the Central Government declaring a particular association
unlawful, the same is subject to inquiry and approval by the
Tribunal as per Section 4. Once that is done and despite that
a person who is a member of such unlawful association
continues to be a member of such unlawful association then
he has to face the consequences and is subjected to the penal
provisions as provided under Section 10 more particularly
Section 10(a)(i) of the UAPA, 1967.
14.6 At this stage it is required to be noted that a particular
association is declared unlawful only after the Central
Government is satisfied that such association is indulging to
unlawful activity and the same is against sovereignty and
integrity of India. ‘Unlawful activity’ is defined under Section
2(o) and ‘unlawful association’ is defined under Section 2(p).
Thus, thereafter a person who is the member of such
unlawful association cannot be permitted to say that still he
may continue to be associated with and/or continue to be a
member of such unlawful association despite such an
association is declared unlawful on the ground of its unlawful
activities which is found to be against the interests of the
sovereignty and integrity of India. At the cost of repetition, it
is observed that the object and purpose of the enactment of
UAPA is to provide for more effective prevention of certain
unlawful activities. To punish such a person who is
continued as a member of such unlawful association which is
declared unlawful due to unlawful activities can be said to be
in furtherance of providing for effective prevention of the
unlawful activities. Therefore, as such Section 10(a)(i) which
provides that where an association is declared unlawful by a
notification issued under Section 3 which has become
effective under sub-section 3 of that Section, a person who is
and continues to be a member of such association shall be
punishable with imprisonment for a term which may extend
to 2 years and shall also be liable to fine, can be said to be
absolutely in consonance with Article 19(1)(2) & (4) of the
Constitution of India and can be said to be in furtherance of
the object and purpose for which the UAPA has been enacted.
15.Now so far as the submission of Shri Parikh, learned Senior Counsel on mens rea element and the reliance placed upon the judgments referred to hereinabove on mens rea and in support of his submissions that mere membership of a person of such unlawful association alone cannot be a ground to punish such person including the decision of Kedar Nath (supra) and other decisions are concerned, at the outset it is required to be noted that the said decisions shall not be applicable while considering the provisions of UAPA. The offences under IPC and offences under the UAPA both are different. As observed hereinabove in the present case an association is declared unlawful after following due procedure as required under Section 3 and subject to the approval by the Tribunal under Section 4 and after giving an opportunity to such association, the office bearers of the association and even the member of the association. 15.1 Now so far as the reliance placed upon the decision of this Court in Kedar Nath Singh (supra) by Shri Parikh, learned Senior Counsel is concerned, at the outset it is required to be noted that the said decision was pre – Constitution (Sixteenth Amendment) Act, 1963. Post Kedar Nath Singh (supra) on the recommendation of the National Integration Council, Article 19(2) and 19(4) which operate as exception to freedom of speech and freedom of association respectively, have been amended to specifically include an exception as to “sovereignty and integrity of India”. Therefore, the same will have a material bearing on any question as to the application of Articles 19 & 21 in the context of UAPA. Thus, UAPA is to be interpreted in congruence with the amendment of the Constitution in 1963 including “sovereignty and integrity of India” as an exception to Article 19.
16.Now so far as the submission made by Shri Parikh, learned Senior Counsel on the vagueness and possibility of misuse of Section 10(i)(a) is concerned, at the outset it is required to be noted that as per catena of decisions of this Court mere possibility of misuse cannot be a ground and/or relevant consideration while considering the constitutionality of a provision. As per the settled position of law any action which is the result of abuse/misuse of any law is subject to challenge. But on the possibility of abuse/misuse of law otherwise constitutionally valid legislation cannot be declared unconstitutional. 16.1 Now so far as the submission on vagueness of Section 10(a)(i) is concerned, as observed hereinabove an association is declared unlawful after complying with all the requirements under Sections 3 & 4 of the UAPA, 1967 as discussed hereinabove. A person who is a member of such an unlawful association is as such aware of the declaration of such association as unlawful and despite the same if he still continues to be the member of such unlawful association which is indulging into the unlawful activities and acting against the sovereignty and integrity of India, his intention is very clear that he still wants to associate with such an association which is indulging into ‘unlawful activities’ and acting against the interests of sovereignty and integrity of India. The language used in the Section 10(1)(i) and the procedure to be followed under Sections 3 & 4 of the Act, before any association is declared as unlawful are very clear. There is no vagueness at all as sought to be contended by Shri Sanjay Parikh, learned Senior Counsel. Therefore, Section 10(a)(i) does not suffer from any vagueness and/or on the ground unreasonable and/or disproportionate.
17.Now so far as the submission made by Shri Parikh, learned Senior Counsel on chilling effect doctrine is concerned, it is required to be noted that a person knowing full well that an association of which he is the member is declared as unlawful association due to its unlawful activities and acting against the interests of sovereignty and integrity of India and still he continues to be a member of such unlawful association thereafter such person cannot be permitted to submit on chilling effect. The consequences are provided under the Act itself. Such a person is made to understand and/or known that to continue with the membership of such unlawful association itself is an offence. Despite such knowledge still he continues then is liable to be punished more particularly so long as Section 10(a)(i) stands and is not declared unconstitutional. 17.1 At this stage it is required to be noted that as per Section 10(a)(i) a person cannot be punished merely because he was the member of such unlawful association. The language including Section 10 is very significant. It provides that “wherein an association is declared unlawful” by notification under Section 3 which has become effective under sub-Section 3 of that Section. So, it is only after the Notification under Section 3 has become effective under subsection 3, that the latter part of that Section applies. The language of Section 10(a)(i) is also very cautiously worded “who is and continues to be a member of such association”. Therefore, on true interpretation, if a person has been a member but does not continue to be a member after declaration, that does not attract mischief of Section 10. The intention seems to be that not only was he a member on the day when the association is declared unlawful but he continues to be a member. The intention is very clear that not only on the given date but even after that you continue to be a member of that association which is declared as unlawful association due to unlawful activities which is found to be against the interests of sovereignty and integrity of India. Therefore, once an association is declared unlawful of whom the concerned person was the member wishes to continue as a member despite the fact that he is well aware of the fact that such an association is declared unlawful and if he still wishes to continue being a part of such unlawful association it shows a conscious decision on his part and therefore liable to be penalized for such an act of continuation of his membership with such unlawful association. Therefore, thereafter he may not make grievance of chilling effect.
18.In view of the above and for the reasons stated above we hold that the view taken by this Court in the cases of State of Kerala vs. Raneef, (2011) 1 SCC 784; Arup Bhuyan vs. Union of India, (2011) 3 SCC 377 and Sri Indra Das vs. State of Assam 2011 (3) SCC 380 taking the view that under Section 3(5) of Terrorists and Disruptive Activities (Prevention) Act, 1987 and Section 10(a)(i) of the Unlawful Activities (Prevention) Act, 1967 mere membership of a banned organization will not incriminate a person unless he resorts to violence or incites people to violence and does an act intended to create disorder or disturbance of public peace by resort to violence and reading down the said provisions to mean that over and above the membership of a banned organization there must be an overt act and/or further criminal activities and adding the element of mens rea are held to be not a good law. It is observed and held that when an association is declared unlawful by notification issued under Section 3 which has become effective of sub-section 3 of that Section, 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. Any other decisions of the High Court taking a contrary view are held to be not a good law and are specifically overruled by this Judgment. Reference is answered accordingly. Consequently, the Review applications filed by the Union of India and the State of Assam are hereby allowed. Now the main appeals/SLPs be placed before the concerned Bench for taking of such matters after obtaining the appropriate order from Hon’ble the Chief Justice. (M. R. SHAH) (C.T. RAVIKUMAR) (SANJAY KAROL) New Delhi, March 24, 2023 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRL. APPEAL NO. 889 OF 2007 WITH REVIEW PETITION (CRL.) NO. 417 OF 2011 IN CRL. A. NO.1383/2007 REVIEW PETITION (CRL.) NO. 426 OF 2011 IN CRL. A. NO.889/2007 SLP (CRL.) 5971/2019 SLP (CRL.) 5964/2019 CRL. A. NO. 1383/2007 SLP (CRL.) … CRLMP NO.16637/2014 SLP (CRL.) NO. 5643/2019 SLP (CRL.) NO. 6270/2019 ARUP BHUYAN .…. APPELLANT VERSUS STATE OF ASSAM .…. RESPONDENT J U D G M E N T
SANJAY KAROL, J.
Table of Contents Reference made to this Court 2 General Development of Article 19 of the Indian Constitution 4 Specifically, Development of Article 19(1)(c) 11 Distinction between Indian and American Constitution 14 Background, import and relevance of decisions of Supreme Court of United States relied on in Arup Bhuyan 23 Background, import and relevance of decisions of Supreme Court of United States relied on in Indra Das 28 Conclusions 36
I have perused the erudite opinion proposed by my
esteemed colleague Hon’ble M.R. Shah, J., with which I
concur. It is my further endeavour to trace the development
of law on the issue in India and the application of the
decisions rendered by the Courts in the United States of
America, thereto. My conclusions are as follows:
Reference made to this Court
1.The present Review Petition arises out of Order of this Court dated 26.08.2014 in Arup Bhuyan v. State of Assam1 (hereafter referred to as Reference Order). The operative part of the order is reproduced as under: “10. The crux of the matter as submitted by Mr Ranjit Kumar, learned Solicitor General for the Union of India, is that when any provision in Parliamentary legislation is read down, in the absence of the Union of India it is likely to cause enormous harm to the interest of the State as in many cases certain provisions have been engrafted to protect the sovereignty and integrity of India. 11. The learned Solicitor General would contend that the authorities which have been placed reliance upon in both the judgments [Arup Bhuyan v. State of Assam, (2011) 3 SCC 377 : (2011) 1 SCC (Cri) 855], [Indra Das v. State of Assam, (2011) 3 SCC 380 : (2011) 1 SCC (Cri) 1150] by the two-Judge Bench are founded on Bill of Rights which is different from Article 19 of the Constitution of India. He has referred to Articles 19(1)(c) and 19(4) of the Constitution. Article 19(1)(c) reads as follows : “19. (1)(c) to form associations or unions;” The said article is further restricted by Article 19(4) which is as follows: “19. (4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.” Relying upon the same it is highlighted by the learned Solicitor General that the Court has not kept this aspect in view while placing heavy reliance on the foreign authorities which are fundamentally not applicable to the interpretative process of the provisions which have been enacted in consonance with the provisions of the Constitution of India. 12. Regard being had to the important issue raised by the learned Solicitor General and Mr. Jaideep Gupta, learned Senior Counsel, for the State of Assam, we think it appropriate that the matter should be considered by a larger bench. Let the registry place the papers before the Hon’ble Chief Justice of India for appropriate orders.”
2.Therefore, the issue which arises for consideration is, whether the Hon’ble Division Bench in Arup Bhuyan v. State of Assam2 and similarly in Sri Indra Das v. State of Assam3 (twoJudge Bench) (hereafter referred to as ‘Arup Bhuyan’ and ‘Indra Das’, respectively) was correct in placing reliance on American decisions stating that the decisions apply to India too, “as our fundamental rights are similar to the Bill of Rights in the US Constitution” to read down S.3(5) of Terrorist and Disruptive Activities Prevention Act, 1987/S.10 of Unlawful Activities (Prevention) Act, 1967 (hereafter referred to as UAPA) ? 4 General Development of Article 19 of the Indian Constitution
3.It is important, at the outset, to reproduce Article 19 of the Indian Constitution which reads as follows: “19(1) All citizens shall have the right— (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (g) to practise any profession, or to carry on any occupation, trade or business. 4 Arup Bhuyan, Paragraph 12. (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes conferred by the said sub-clause in the interests of the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. (3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, conferred by the said sub-clause…”
4.At the time of the enactment of the Indian Constitution, as submitted by the Union of India, Article 19 did not contain ‘reasonable restrictions’. The words ‘reasonable restrictions’ within Article 19(2) were introduced by the Constitution (First Amendment) Act, 1951, which stated in its object and reasons that within the first fifteen months of the working of the Constitution certain difficulties were experienced, particularly, in regard to the chapter on Fundamental Rights and to address those issues the State was empowered to impose reasonable restrictions in the interest of general public.
5.This was followed by the Constitution (Sixteenth) Amendment Act, 1963, wherein the State was empowered to impose reasonable restrictions on the freedoms conferred under Article 19, particularly on the ground of protection of interests of “sovereignty” and “integrity” of India. In its object and reasons, it was stated that this Amendment is upon the recommendation of the Committee on National Integration and Regionalism appointed by the National Integration Council for preservation and maintenance of the integrity and sovereignty of the Union of India.
6.The interpretation of Article 19 and application of reasonable restrictions therein has been summarized by this Court in Dharam Dutt v. Union of India5 (two-Judge Bench) in the following terms: “35. The scheme of Article 19 shows that a group of rights are listed as clauses (a) to (g) and are recognized as fundamental rights conferred on citizens. All the rights do not stand on a common pedestal but have varying dimensions and underlying philosophies. This is clear from the drafting of clauses (2) to (6) of Article 19. The framers of the Constitution could have made a common draft of restrictions which were permissible to be imposed on the operation of the fundamental rights listed in clause (1), but that has not been done. The common thread that runs throughout clauses (2) to (6) is that the operation of any existing law or the enactment by the State of any law which imposes reasonable restrictions to achieve certain objects, is saved; however, the quality and content of such law would be different by reference to each of sub-clauses (a) to (g) of clause (1) of Article 19 as can be tabulated hereunder: Article 19 Clause (1) Clauses (2) to (6) Nature of right Permissible restrictions By existing law or by law made by the State imposing reasonable restrictions in the interests of (a) Freedom of (i) the sovereignty and speech and integrity of India expression (ii) the security of the State (iii) friendly relations with foreign States (iv) public order, decency or morality (v) in relation to contempt of court, defamation or incitement to an offence (b) right to (i) the sovereignty and assemble integrity of India peaceably and (ii) public order without arms (c) right to form (i) the sovereignty and associations or integrity of India unions (ii) public order or morality (d) and (e) right to (i) the general public move freely and/or (ii) the protection of the to reside and settle interests of Scheduled throughout the Tribes territory of India (g) right to practise The general public and in any profession, or particular any law relating to to carry on any (i) the professional or occupation, trade technical qualifications or business necessary for practising of any profession or carrying on of any occupation, trade or business (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. 36. Article 19 confers fundamental rights on citizens. The rights conferred by Article 19(1) are not available to and cannot be claimed by any person who is not and cannot be a citizen of India. A statutory right — as distinguished from a fundamental right — conferred on persons or citizens is capable of being deprived of or taken away by legislation. The fundamental rights cannot be taken away by any legislation; a legislation can only impose reasonable restrictions on the exercise of the right. Out of the several rights enumerated in clause (1) of Article 19, the right at sub-clause (a) is not merely a right of speech and expression but a right to freedom of speech and expression. The enumeration of other rights is not by reference to freedom. In the words of the then Chief Justice Patanjali Sastri in State of W.B. v. Subodh Gopal Bose [AIR 1954 SC 92 : 1954 SCR 587] these rights are great and basic rights which are recognized and guaranteed as the natural rights, inherent in the status of a citizen of a free country. Yet, there cannot be any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint. Had there been no restraints, the rights and freedoms may tend to become the synonyms of anarchy and disorder. The founding fathers of the Constitution, therefore, conditioned the enumerated rights and freedoms reasonably and such reasonable restrictions are found to be enumerated in clauses (2) to (6) of Article 19...”
7.While considering the reasonableness of the restrictions imposed under Article 19(2) to 19(6), a Constitution Bench of this Court in State of Madras v. VG Row6 (five-Judge Bench) observed as under: “22. This Court had occasion in Khare case [N.B. Khare v. State of Delhi, 1950 SCR 519 : 1950 SCC 522] to define the scope of the judicial review under clause (5) of Article 19 where the phrase “imposing reasonable restrictions on the exercise of the right” also occurs, and four out of the five Judges participating in the decision expressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness; that is to say, the Court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised. 23. It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.....”
8.Furthermore, laws restricting freedoms under Article 19, must be under one of the permitted heads of restrictions and must have a proximate link to it. [See: State of Bihar v. Shailabala Devi7 (five-Judge Bench); O.K. Ghosh and Anr. v. E.X. Joseph8 (five-Judge Bench) and Shreya Singhal v. Union of India9 (two-Judge Bench)]
9.This development of Article 19 has been encapsulated by a Constitution Bench of this Court in Kaushal Kishor v. State of U.P. & Ors.10 (five-Judge Bench). Justice V. Ramasubramanian has reiterated that the restrictions under Article 19(2) have been included after detailed deliberations. Furthermore, after the amendments to the Constitution that have been discussed herein above, the restrictions “save and enable the State” to make laws restricting freedoms under the enumerated heads, such as, sovereignty and integrity of India, security of the State and incitement to an offence.11 Specifically, Development of Article 19(1)(c)
10.Article 19(1)(c) guarantees to all citizens the right to form associations which are subject to reasonable restrictions under Article 19(4). These reasonable restrictions are not limited to formation of the association but extends to effective functioning of the association relating to lawful objectives. [A.P. Dairy Development Corpn. 10 2023 SCC Online 6 11 Paragraphs 29 - 31. Federation v. B. Narasimha Reddy12 (two-Judge Bench)]
11.A Constitution Bench of this Court in Raghubar Dayal Jai Prakash v. Union of India13 (five-Judge Bench), made specific reference to restrictions imposed by statutes, vis-a-vis Article 19 (1)(c) and observed as under: “11. ... An application for the recognition of the association for the purpose of functioning under the enactment is a voluntary act on the part of the association and if the statute imposes conditions subject to which alone recognition could be accorded or continued, it is a little difficult to see how the freedom to form the association in affected unless, of course, that freedom implies or involves a guaranteed right to recognition also....”.
12.Furthermore, this Court, while considering the constitutional validity of the Indian Council of World Affairs Ordinance 2001, in Dharam Dutt (supra), while tracing the settled legal position, reiterated that restrictions can be imposed on the right conferred by Article 19(1)(c). It was observed that this right can be subjected to those restrictions which satisfy the test of Article 19(4) of the Constitution.
13.While adjudicating a case involving the UAPA, in Jamaat-E-Islami Hind v. Union of India14 (three-Judge Bench), with respect to restrictions that may be imposed on such a right under Article 19(4) as also the requirements of natural justice, it was observed as under: “20. ... The scheme under this Act requiring adjudication of the controversy in this manner makes it implicit that the minimum requirement of natural justice must be satisfied, to make the adjudication meaningful. No doubt, the requirement of natural justice in a case of this kind must be tailored to safeguard public interest which must always outweigh every lesser interest. This is also evident from the fact that the proviso to sub-section (2) of Section 3 of the Act itself permits the Central Government to withhold the disclosure of facts which it considers to be against the public interest to disclose. Similarly, Rule 3(2) and the proviso to Rule 5 of the Unlawful Activities (Prevention) Rules, 1968 also permit non-disclosure of confidential documents and information which the Government considers against the public interest to disclose.” “26. An authorised restriction saved by Article 19(4) on the freedom conferred by Article 19(1)( c ) of the Constitution has to be reasonable.” Distinction between Indian and American Constitution
14.In view of the above discussion, one now proceeds to consider the First Amendment of the American Constitution which is extracted as under: “Congress shall make no 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.”
15.The contradistinction between the rights created by the First Amendment of the American Constitution and Article 19 of the Indian Constitution is the power given to the State to make laws reasonably restricting such freedoms in India. Conversely, in the United States of America, restrictions have been imposed by the Judiciary in instances, as relied upon in Arup Bhuyan and Indra Das, however no such explicit power is available with the Legislature.
16.This distinction has been enunciated by this Court as well. In Babulal Parate v. State of Maharashtra15, as submitted by the Union of India, a Constitution Bench of this Court (five-Judge Bench) while upholding the constitutional validity of Section 144, Cr.P.C. has held that whatever may be the position in the United States, the anticipatory action under S.144, Cr.P.C. is permissible under 15 (1961) 3 SCR 423 clauses (2) and (3) of Article 19, which allow the legislature to make laws placing reasonable restrictions on the rights conferred by these clauses of Article 19. Importantly, this Court further observed there is nothing in the American Constitution corresponding to clauses (2) to (6) of Article 19 of the Indian Constitution. It was further observed that the framework of the Indian Constitution is different from the American Constitution.
17.The above distinction in Babulal Parate (supra), was reaffirmed by another Constitution Bench in Madhu Limaye v. Sub-Divisional Magistrate16 (seven-Judge Bench), wherein this Court while dealing with the constitutionality of S.144 of the Cr.P.C. and the scope of restrictions that can be imposed, observed that in America, the First Amendment freedoms have no qualifications, as in India and the American rulings are apt to be misapplied to our Constitution.17 17 Paragraph 17 and 28.
18.Furthermore, in Indian Express Newspapers (Bombay) Pvt. Ltd. and Others v. Union of India and Others18 (threeJudge Bench), through the pen of E.S Venkatramaiah J., (as his Lordship then was), observed that: “44. While examining the constitutionality of a law which is alleged to contravene Article 19(1)(a) of the Constitution, we cannot, no doubt, be solely guided by the decisions of the Supreme Court of the United States of America. But in order to understand the basic principles of freedom of speech and expression and the need for that in a democratic country, we may take them into consideration. The pattern of Article 19(1)(a) and of Article 19(1)(g) of our Constitution is different from the pattern of the First Amendment to the American Constitution which is in absolute terms. The rights guaranteed under Article 19(1)(a) and Article 19(1)(g) of the Constitution are to be read along with clauses (2) and (6) of Article 19, which carve out areas in respect of which valid legislation can be made.”
19.In Union of India v. Naveen Jindal and Another19 (three-Judge Bench) this Court, while discussing the issue of a citizen's right to fly the National Flag, on the issue of Right to freedom of Speech and Expression, noted the distinction between the Constitution of India and that of the United States of America. Such a distinction being that in the USA, the First Amendment gives an absolute right to a citizen of free expression, but under Article 19(1)(a), no absolute right is conferred. It only provides for a qualified right, which is subject to regulatory measures contained in clause 2 of Article 19.20 This distinction between the Bill of Rights contained in the American Constitution and the fundamental rights provided for in the Indian Constitution was also noted in Superintendent, Central Prison v. Dr. Ram Manohar Lohia21 (five-Judge Bench); Pathumma v. State of Kerala22 (seven-Judge Bench); M.C. Mehta v. Union of India23 (Shriram – Oleum Gas) (five-Judge Bench); Ashok Kumar Thakur v. 21 (1960) 2 SCR 821 Union of India24 (two-Judge Bench) and Jayendra Vishnu Thakur v. State of Maharashtra25 (twoJudge Bench).
20.In Ramlila Maidan Incident, In re, (2012) 5 SCC 1 (two-Judge Bench), as submitted by the Union of India, while discussing the Right to Freedom of Speech and Expression under Article 19, refused to apply the US case of Schneck v. United States26, which propounded the doctrine of clear and present danger, stating that it cannot be imported and applied in India.27 Further, holding that, the right to freedom of speech and expression in India is subject to reasonable restrictions and therefore, there is a marked distinction in the language of law, its application and interpretation under the Indian and the US laws.28
21.Shreya Singhal (supra), this Court speaking through R.F. Nariman, J. highlighted on the differences between the 28 Paragraph 9 - 11. US First Amendment and Freedom of Speech and Expression under Article 19(1)(a) read with Article 19(2) in the following words: “15. It is significant to notice first the differences between the US First Amendment and Article 19(1) (a) read with Article 19(2). The first important difference is the absoluteness of the US First Amendment—Congress shall make no law which abridges the freedom of speech. Second, whereas the US First Amendment speaks of freedom of speech and of the press, without any reference to “expression”, Article 19(1)(a) speaks of freedom of speech and expression without any reference to “the press”. Third, under the US Constitution, speech may be abridged, whereas under our Constitution, reasonable restrictions may be imposed. Fourth, under our Constitution such restrictions have to be in the interest of eight designated subject-matters— that is, any law seeking to impose a restriction on the freedom of speech can only pass muster if it is proximately related to any of the eight subjectmatters set out in Article 19(2).” 17. So far as the second apparent difference is concerned, the American Supreme Court has included “expression” as part of freedom of speech and this Court has included “the press” as being covered under Article 19(1)(a), so that, as a matter of judicial interpretation, both the US and India protect the freedom of speech and expression as well as press freedom. Insofar as abridgement and reasonable restrictions are concerned, both the US Supreme Court and this Court have held that a restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary. It is only when it comes to the eight subject-matters that there is a vast difference. In the US, if there is a compelling necessity to achieve an important governmental or societal goal, a law abridging freedom of speech may pass muster. But in India, such law cannot pass muster if it is in the interest of the general public. Such law has to be covered by one of the eight subject-matters set out under Article 19(2). If it does not, and is outside the pale of Article 19(2), Indian courts will strike down such law.” 18. American judgments have great persuasive value on the content of freedom of speech and expression and the tests laid down for its infringement. It is only when it comes to subserving the general public interest that there is a world of difference.” (Emphasis Supplied)
22.The abovementioned decision in Shreya Singhal (supra), has been followed recently in Kaushal Kishor (supra) by Justice B.V. Nagarathna in her erudite concurring opinion while analyzing the freedom of speech and expression under Article 19.29
23.The distinction as noted by this Court in various 29 Paragraph 202(iii) & 203. decisions between the American Constitution, specifically the First Amendment therein and Article 19 of the Indian Constitution have been noted hereinabove.
24.There have been, however, cases where this Court has, taken into consideration, judgments of the Supreme Court of the United States of America. For instance, the Constitution Bench in Express Newspapers (Pvt.) Limited and Another v. Union of India and Others30 (five-Judge Bench) wherein the constitutionality of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 was in question. Justice N.H. Bhagwati writing for the Court, observed, that since Article 19(1)(a) of our Constitution is based on the First Amendment of the American Constitution, it would be “legitimate and proper” to refer to the decisions of the Supreme Court of the United States “in order to appreciate the true nature, scope and extent of this right”. This observation comes in addition to and despite having taken 30 (1959) SCR 12 note of the warnings issued in State of Travancore – Cochin and Others v. Bombay Co. Ltd31 (five-Judge Bench) and State of Bombay v. R.M.D. Chamarbaugwala32 (five-Judge Bench). This was, however, after having duly recognized the “paucity of authority in India on the nature, scope and extent of this fundamental right of freedom of speech and expression enshrined under article 19(1)(a) of the Constitution”, at that point in time.
25.This observation of Justice N.H. Bhagwati has been further followed in Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd. and Ors.33 (two-Judge Bench) wherein the effect of Article 19 on the freedom of press was in question.34 The court while making reference to US and UK decisions in Nebraska Press Association v. Hugh Stuart35, John D. 35 427 US 539 Pennekamo v. State of Florida36 and Attorney General v. British Broadcasting Corporation37, held that there was no reason for the injunction in question, to continue.38
26.In R.K. Garg v. Union of India39 (five-Judge Bench), a Constitution Bench, placed reliance on the Supreme Court of United States decisions in Morey v. Doud40 and Secy. of Agriculture v. Central Roig Refining Co.41 to hold that the courts cannot be converted into tribunals for relief from inequalities in economic legislations.42
27.An observation by Lord Denning in Ghani v. Jones43 quoted with approval in Maneka Gandhi v. Union of India44 (seven-Judge Bench), is worth reproducing herein. It reads, “a man’s liberty of movement is regarded so highly 36 (1945) 90 L Ed 331 37 (1979) 3 All ER 45 38 Paragraph 20 - 22, 38. 43 (1970) 1 QB 693 by the law of England that it is not to be hindered or prevented except on surest grounds”. It is then, by extension, without a shadow of doubt, a sure ground for the restriction of liberty, in the present case of association, if the legislature, after following procedure established by law, found appropriate reasons to restrict such right, in particular, with banned organizations.
28.The purpose of delving into both nature of decisions, where judgments of the United States Supreme Court have and have not been relied on, is to demonstrate that in certain cases reference to those judgments is justified. Such reference though, needless to say, has to be appreciated in the light of our own constitutional, legislative as well as judicial, historic perspective. They cannot, as was done in the Arup Bhuyan and Indra Das referred to this bench, form the sole basis for the conclusion arrived at.
29.In the aforesaid backdrop, in order to answer the reference, it is essential to appreciate the decisions relied upon in the two decisions, namely, Arup Bhuyan and Indra Das. It is only subsequent to having appreciated these decisions that we may examine effectively, their application to the scenario before us. Background, import and relevance of decisions of Supreme Court of United States relied on in Arup Bhuyan
30.In Arup Bhayan, the learned bench of two judges placed reliance on American decisions in Elfbrandt v. Russel45, Clarence Brandenberg v. State of Ohio46 and United States v. Eugene Frank Robel47 wherein the doctrine of ‘guilt by association’ has been rejected. The court observed that the abovementioned judgments apply to India too, since the fundamental rights in India are similar to the Bill of Rights in the U.S. Constitution. Furthermore, this court while setting aside the conviction of the appellant under S.3(5) TADA observed: “12. In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in the light of our observations made above. 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.”
31.Reliance was placed on the decision of this court in State of Kerela v. Raneef48 (two-Judge Bench), wherein Justice Katju, while upholding the order granting bail to the Respondent, placed reliance on US Supreme Court decisions such as Elfbrandt (supra) which has rejected the doctrine of “guilt of association”.
32.In Elfbrandt (supra), the constitutionality of the Arizona Act was in question which required all state employees to take oath. Under the oath, an employee is subject to prosecution for perjury and discharge from office if he "knowingly and willfully becomes or remains a member of the communist party of the United States or its successors or any of its subordinate organizations'' or "any other organization" having for "one of its purposes", the overthrow of the state government, where the employee had knowledge of such unlawful purpose. It was held that those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat. This Act threatens the cherished freedom of association protected by the First Amendment, made applicable to the States through the Fourteenth Amendment.
33.In Clarence Brandenberg v. State of Ohio49, the Appellant was convicted under the Ohio Criminal Syndicalism statute for: (i) ‘advocating … the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform' and (ii) for 'voluntarily assembling with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.’ The Supreme Court of the United States of America, while reversing the conviction, held that Ohio's Criminal Syndicalism Act cannot be sustained. The Act punishes persons who 'advocate or teach the duty, necessity, or propriety' of violence 'as a means of accomplishing industrial or political reform'; or who publish or circulate or display any book or paper containing such advocacy; or who 'justify' the commission of violent acts 'with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism'; or who 'voluntarily assemble' with a group formed 'to teach or advocate the doctrines of criminal syndicalism.' Neither the indictment nor the trial judge's instructions to the jury in any way refined the statute's bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action. Furthermore, it held that the Constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
34.In United States v. Eugene Frank Robel50, the constitutionality of S. 5(a)(1)(D) of the Subversive Activities Control Act of 1950, was drawn into question before the Supreme Court of the United States of America. S.5(a)(1)(D) of the Act provided that, when a Communist-action organization is under a final order to register, it shall be unlawful for any member of the organization 'to engage in any employment in any defense facility.' In this case, the appellee was indicted since he was a member of the Communist Party and was employed at Todd Shipyards Corporation, which was designated as a ‘defense facility.’ The Court declared S.5(a)(1)(D) as unconstitutional and held that: “It is precisely because that statute sweeps indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership, that it runs afoul of the First Amendment.” Background, import and relevance of decisions of Supreme Court of United States relied on in Indra Das
35.In Indra Das, the learned bench of two Judges relied on and followed its earlier judgment in Arup Bhuyan and while similarly relying on the American decisions discussed henceforth, it was held that S.3(5) of TADA/S.10 of UAPA have to be read down to bring them in consonance with the Constitution.
36.Reliance was placed on Elfbrandt (supra), as discussed above.
37.The learned division bench relied on Scales v. United States51, to make a distinction between an active and a passive member of an organization. In this case, the Petitioner’s conviction under the Smith Act came in review before the Supreme Court of the United States of America. This act, made a felony “the acquisition or holding of knowing membership in any organization which advocates the overthrow of the Government of the United States by force of violence.” Further, the Court, while overruling the Petitioner’s constitutional challenge observed that: “The clause does not make criminal all association with an organization which has been shown to engage in illegal advocacy. There must be clear proof that a defendant "specifically intends to accomplish the aims of the organization by resort to violence." Thus, the member for whom the organization is a vehicle for the advancement of legitimate aims and policies does not fall within the ban of the statute: he lacks the requisite specific intent ‘to bring about the overthrow of the government as speedily as circumstances would permit.’ Such a person may be foolish, deluded, or perhaps merely optimistic, but he is not by this statute made a criminal.”
38.In Noto v. United States52, the Petitioner was convicted of violating the membership clause of the Smith Act, which makes a felony the acquisition or holding of membership in any organization which advocates the overthrow of the Government of the United States by force or violence, knowing the purpose thereof. The Supreme Court observed that There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching. In this backdrop, it was held that the conviction of the Petitioner is being reversed because the Government has failed to produce evidence the Court believes sufficient to prove that the Communist Party presently advocates the overthrow of the Government by force.
39.Reliance was placed on the dissenting opinion of Justice Hugo Black in Communist Party v. Subversive Activities Control Board53. In this case, the registration of the Communist Party of the United States since it was a "Communist action organization," under the Subversive Activities Control Act of 1950 was brought into question. Justice Hugo Black observed that: “I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish. The first banning of an association because it advocates hated ideas -- whether that association be called a political party or not -- marks a fateful moment in the history of a free country. That moment seems to have arrived for this country.”
40.In Joint Anti-Fascist Refugee Committee v. McGrath54, the Petitioner organisations were included by the Attorney General as Communist, without hearing and furnished by him to the Loyalty Review Board of the United States Civil Service Commission. The court, while recognising that the Attorney General had no power to do so, remanded the matter back to the district court. It was observed that: 54 341 US 123, 174 (1951) “In days of great tension, when feelings run high, it is a temptation to take shortcuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within.”
41.In Keyishian v. Board of Regents of New York55, the Supreme Court of the United States of America, struck down a law which authorized the board of regents to prepare a list of subversive organizations and to deny jobs to teachers belonging to those organizations. The law made membership in the Communist Party prima facie evidence for disqualification from employment. Mr. Justice Brennan, speaking for the Court held that, penalizing mere knowing membership, without a specific intent to further the unlawful aims of an organization, is not a constitutionally adequate basis for exclusion from such positions as those held by appellants. 55 385 US 589 1966
42.In Yates v. U.S.56, the Petitioners were members of the Communist Party in California and were indicted under the Smith Act, charging them with conspiring (1) to advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence, and (2) to organize, as the Communist Party of the United States, a society of persons who so advocate and teach, all with the intent of causing the overthrow of the Government by force. While reversing the conviction of the Petitioners, the Supreme Court observed that the district court failed to distinguish between advocacy of forcible overthrow and advocacy of action, by holding that advocacy of violent action at some future time was enough.
43.Reliance was placed on Clarence Brandenberg (supra), as discussed above.
44.In Whitney v. California57, the question which arose was whether the petitioner, who joined and assisted in the organization of a Communist Labor Party contravening the California Criminal Syndicalism Act, did so with knowledge of its unlawful character and purpose. The Supreme Court of the United States of America, while upholding the constitutionality of the abovementioned act, observed that the freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility. Furthermore, although the rights of free speech and assembly are fundamental, they are not, in their nature, absolute. In Indra Das, reliance was placed on the concurring opinion of Mr. Justice Brandeis wherein he observed that fear of serious injury cannot alone justify suppression of free speech and assembly. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.
45.Reliance was placed on the dissenting opinion of Mr. Justice Holmes in Gitlow v. New York58. In this case, the appellant was a member of the Left-Wing Section of the Socialist Party. He was indicted for advocating the overthrow and upending of the organized government. The majority opinion reiterated that it is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility. a State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. These imperil its own existence as a constitutional State. Freedom of speech and press does not protect disturbances to the public peace or the attempt to subvert the government. The constitutionality of the statute and conviction of the appellant was upheld. Justice Holmes observed that: “It is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. If the publication of this document had been laid as an attempt to induce an uprising against government at once, and not at some indefinite time in the future, it would have presented a different question. …. but the indictment alleges the publication, and nothing more.”
46.In Terminiello v. Chicago59, the Petitioner was charged with violation of an ordinance forbidding any "breach of the peace". While reversing his conviction, the Supreme Court of the United States of America held that a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. The Court observed that “..speech is often provocative and challenging.”
47.In De Jonge v. Oregon60, the Appellant was charged on the basis that he assisted in the conduct of a meeting which was called under the auspices of the Communist Party, an organization advocating criminal syndicalism. The Supreme Court of the United States of America while considering the Criminal Syndicalism Law of Oregon held that “none of our decisions goes to the length of sustaining such a curtailment of the right of free speech and assembly as the Oregon statute demands in its present application.” Reliance was placed on the abovementioned decisions in Gitlow (supra) and Whitney (supra). Conclusions
48.The abovementioned decisions are in contradistinction to the scenario in question in India. The American decisions primarily involve indictment on the basis of membership of political organizations or incidents of free speech advocating overthrow of the government. However, under Indian law, it is not membership of political organizations etc. or free speech or criticism of the government that is sought to be banned, it is only those organizations which aim to compromise the sovereignty and integrity of India and have been notified to be such and unlawful, whose membership is prohibited. This is in furtherance of the objective of the UAPA, which has been enacted to provide for the more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected therewith. The distinction, therefore, is clear.
49.Furthermore, the UAPA provides for a system of checks & balances and public notification for any association being declared unlawful: S.3 of the Act, states that the Central Government must publish a notification declaring an unlawful association in the Official Gazette and Daily Newspaper in the State in which the principal office of the association affected is situated. Furthermore, the Association must be notified by affixing a copy on its office or by serving its office bearers or by means of loudspeakers. Under S.4 of the Act, any notification under S.3 of the Act, shall be adjudicated upon by the Tribunal for the purpose of whether or not there is sufficient cause for declaring the association unlawful. In this adjudication, the association is given an opportunity to be heard. S.5 provides for setting up this UAPA Tribunal, to which no person shall be appointed unless he is a Judge of a High Court. Under S.10 of the Act, which may be termed as the genesis if the present controversy to be adjudicated upon, in my understanding is forthcoming in its meaning. “Is and continues to be” implies that a person, even after the organization being so notified as unlawful, is and continues to be a member, would attract penalty under the said section. The use of the conjunction “and'' means that both of the abovementioned conditions have to be satisfied. [Hyderabad Asbestos Cement Products and Anr. v. Union of India and Ors.61, (three-Judge Bench)] It is important to reiterate, that the above observations have been made in light of and for application to the present reference.
50.Importantly, Shreya Singhal (supra) captures the situation in regards the use of judgments of the Supreme Court of the United States of America aptly to say that those judgments are of “great persuasive value” but it also notes that there is “a world of difference” between the American and Indian scenario, so far as, subserving public interest is concerned. It is this difference which seemed to have escaped the learned division bench’s attention in Arup Bhyan and Indra Das.
51.As recorded by the Constitution (First Amendment) Act, 1951, issues in the functioning and implementation of such rights were being faced right from the start and so the lawmaking authority, in order to ensure smooth functioning of law. This Court cannot be oblivious to such fact. The vast, varied and scholarly jurisprudence developed by this court has been in view of these clauses within Article 19. Now, at this juncture, seven decades thence, in my view a stand of whichever court, cannot be allowed to stand if it is in ignorance of constitutional provisions. I may hasten to add that neither I, or this bench, nor any other court would hold otherwise to state that influences or even borrowing from other constitutions has not taken place in the formation of our constitution, but, it is equally and ever so more important to note, that the development thereof has been done in specific context of the situations and conditions prevalent in India.
52.In light of the above, I may conclude that placing reliance therefore, on decisions rendered in a distinct scenario as well as a demonstrably different constitutional position, that too almost singularly, especially in cases which involve considerations of national security and sovereignty, was not justified.
53.The reference is answered in the above terms. (Sanjay Karol) Place: New Delhi; Date: 24th March, 2023.