TaxTMI 
TaxTMI 
2023 (3) TMI 1459
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....yan v. Union of India, (2011) 3 SCC 377 as well as State of Kerala v. 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 v. 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 op....
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....uence 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 U....
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....t 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 w....
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....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.] 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 categorical....
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....hat 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. 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 consider....
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....ect 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: Provided that nothing in this Sub-section shall 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....
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....ssible 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 Sub-section (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 a....
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.... 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 le....
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....he 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 c....
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.... 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 declin....
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....an 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 U....
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....ont 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 followi....
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....A 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, (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 ....
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..... 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 Ors., (1989) 2 SCC 574, which read as under: 45. .... Ther....
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....urt 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 upo....
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....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 Indian Penal Code 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 Indian Penal Code are standalone offences and are applied for a far wider canvass than the offence of membership of banned orga....
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.... 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 re....
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....y extend to imprisonment for life, and shall also be liable 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 v. United States [6 L Ed ....
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....an (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 (supr....
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....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 v. 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 ....
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....alsely 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 purpos....
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....ht 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 reasonable restrictions on the exercise of the right conferred, again in the interest of the factors stated therein. 8. In face of this constitutional mandate, the American doctrine adumbrated in Schenck case [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 tw....
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....e of those laws and of the institutions to which they apply. 12.7. In the case of State of Bihar v. 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 Article 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 v. 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 and Ors. v. Th....
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....aken 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 membersh....
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....ism" 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 n....
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....ful. (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 Sub-section (3) shall be published in the Official Gazette. 8. Power to notify places for the purpose of an unlawful association.--(1) ....
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....xcept 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 notificat....
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....ganisation.--(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 (i....
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....n (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 U....
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....ful 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....
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....ven 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 associ....
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....endation 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 fa....
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....n. So, it is only after the Notification Under Section 3 has become effective Under Sub-section 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 a....
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....n in Indra Das Conclusions 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 19. The present Review Petition arises out of Order of this Court dated 26.08.2014 in Arup Bhuyan v. State of Assam (2015) 12 SCC 702 (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 ....
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.... 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. (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. (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 Ind....
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....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) Nature of right Clauses (2) to (6) Permissi ble restrictions By existing law or by law made by the State imposing reasonable restrictions in the interests of (a) Freedom of speech and expression (i) the sovereignty and integrity of India (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 assemble peaceably and without arms (i) the sovereignty and integrity of India (ii) public order (c) right to form associations or unions (i) the sovereignty and integrity of India (ii) public order or morality (d) and (e) right to move freely and/or to reside and settle ....
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....rt 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, th....
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....ncil 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. 31. While adjudicating a case involving the UAPA, in Jamaat-E-Islami Hind v. Union of India (1995) 1 SCC 428 (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....
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....h in Madhu Limaye v. Sub-Divisional Magistrate (1970) 3 SCC 746 (seven-Judge Bench), wherein this Court while dealing with the constitutionality of Section 144 of the Code of Criminal Procedure 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. [Paragraph 17 and 28. 36. Furthermore, in Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. v. Union of India and Ors. (1985) 1 SCC 641 (three-Judge 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 Am....
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....s: 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 subject-matters 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 judic....
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....preciate the true nature, scope and extent of this right". This observation comes in addition to and despite having taken note of the warnings issued in State of Travancore - Cochin and Ors. v. Bombay Co. Ltd. 1952 SCR 1112 (five-Judge Bench) and State of Bombay v. R.M.D. Chamarbaugwala 1957 SCR 874 (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. 43. 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. (1988) 4 SCC 592 (two-Judge Bench) wherein the effect of Article 19 on the freedom of press was in question. [Paragraph 10] The court while making reference to US and UK decisions in Nebraska Press Association v. Hugh Stuart 427 US 539, John D. Pennekamo v. State of Florida (1945) 90 L Ed 331 and Attorney General v. British Broadcasting Corporation (1979) 3 All ER 45, held that there was no reason for the injunction in question, to continue. ....
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....e 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 Section 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. 49. Reliance was placed on the decision of this Court in State of Kerala v. Raneef (2011) 1 SCC 784 (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". 50. 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....
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....ene Frank Robel 389 U.S. 258 (1967), the constitutionality of Section 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. Section 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 Section 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 53. 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 Americ....
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....force. 57. Reliance was placed on the dissenting opinion of Justice Hugo Black in Communist Party v. Subversive Activities Control Board 367 US 1 (1961). 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." 58. In Joint Anti-Fascist Refugee Committee v. McGrath 341 US 123, 174 (1951), 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 Att....
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....sibility. 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. 63. Reliance was placed on the dissenting opinion of Mr. Justice Holmes in Gitlow v. New York 268 US 652 (1925). 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 abs....
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....ictment 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. 67. Furthermore, the UAPA provides for a system of checks & balances and public notification for any association being declared unlawful: * Section 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....