Mere membership of banned outfit enough for UAPA offence: SC overrules 2011 order

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The Supreme Court has significantly overruled its 2011 judgement holding that mere membership of banned associations is not sufficient to constitute an Unlawful Activities (Prevention) Act offence but that it needs to be accompanied with overt violence, reported The Wire.

In an order which could have far reaching impact, a bench of Justices M.R. Shah, C.T. Ravikumar and Sanjay Karol also upheld Section 10(a)(i) of the UAPA, reported LiveLaw.

The section deems that membership of an association which has been declared to be unlawful is an offence. Legal scholar Gautam Bhatia has called the verdict, “one of the worst and most damaging civil rights judgments in its history.”

The 2011 judgment in the Arup Bhuyan vs State Of Assam case was delivered by a two-judge bench of Justice Markandeya Katju and Justice Gyan Sudha Mishra. The judges pronounced the order while deciding on Bhuyan’s bail application under the Terrorist and Disruptive Activities (Prevention) Act.

Bhuyan had been accused of having been a member of the banned ULFA. “Mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence,” the bench had said.

Earlier in the same year, 2011, the bench had said the same while deciding on another bail application, this time under the UAPA, in State of Kerala vs Raneef.

The Union government filed an application seeking that the matter be referred to a larger bench, alleging that the bench had not heard the Union. In 2014, this plea was granted by a bench of Justices Dipak Misra and A.M. Sapre, as per the report.

In 2014, this matter was referred to a lae bench Justices Dipak Misra and AM Sapre. The current three-judge bench heard Solicitor General of India Tushar Mehta and senior advocate Sanjay Parikh (for an intervenor NGO).This bench held that the 2011 orders had been passed in bail petitions and did not question the constitutionality of the provisions.

LiveLaw noted that the bench also chastised the earlier bench for not hearing the Union and reading down provisions.“When a Parliamentary legislation is read down in the absence of the Union, enormous harm would be caused to State if they are not heard,” the bench observed.It also said that the reading down of a provision is not permissible when the “language of a section is plain and clear,” referring to Section 10(a)(i) of the UAPA.

The bench also said that the earlier bench had made a “mistake” by relying on US Supreme Court judgments, as the right to freedom of speech and association as per the Indian Constitution is subject to reasonable restrictions.

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