TaxTMI 
TaxTMI 
2023 (3) TMI 1459
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....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 opinion the said decision is distinguishable as in that ....
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....ons 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 ....
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.... 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 Sections 4 and 5 of the Act....
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....hall 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 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 S....
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....g 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 A....
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....on, 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 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 prin....
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.... 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 civ....
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....n 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 r....
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....ng 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 (....
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....ution 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 v. Reserve Bank of India, 1962 Supp (3) SCR 632 (para 50 & 75); M.C. Mehta v. Union of India (Shriram - Oleum Gas), (1987) 1 SCC 395 (para 29); Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1 (para 188 to 190) and Pathumma v. 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 v. United States, 249 U.S. 47 (191....
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....ng 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 ....
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.... 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....
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....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 upo....
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....his 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. .... 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 farfetched. 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 furthe....
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....l 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....
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....ons 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 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 Indian Penal Code 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 Indian Penal Code offences. It is submitted that in the present case the Parliament in its wisdom and taking into consideration the sove....
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....ce. 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 v. 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 abo....
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....me 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 2d 782]; Elfbrandt v. Russell [16 L Ed 2d 321] and Joint Anti-Fascist Refugee Committee v. 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 v. State of Assa....
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....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 Ors. v. Raju through Member, Juvenile Justice Board and Anr., (2014) 8 SCC 390 reading dow....
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....termining 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 Cou....
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.... 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 v. 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 orde....
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....s, 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 l....
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.... conditions as well as other factors are widely different in both the countries. Reference may be made to Bhikaji Narain Dhakras and Ors. v. The State of Madhya Pradesh and Anr. 56 and A.S. Krishna v. 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 Ors. v. State of Bihar and Anr., 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 Cons....
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....t 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 cooperative 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 ....
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....al 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 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 ....
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....ub-section (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....
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....ciation; or (iii) contributes to, or receives or solicits any contribution for the purpose of, such association; or (iv) in any way assists the operations of such 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....
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...., 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....
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....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. Therefo....
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....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 s....
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....s 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 ....
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....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. Th....
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....nder 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, t....
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....ion 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. 20. Therefore, the issue which arises for consideration is, whether the Hon'ble Division Bench in Arup Bhuyan v. State of Assam (2011) 3 SCC 377 and similarly in Sri Indra Das v. State of Assam (2011) 3 SCC 380 (two- Judge Benc....
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....trictions' 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. 23. 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. 24. The interpretation of Article 19 and application of reasonable restrictions therein has been summarized by this Court in Dharam Dutt v. Union of India (2004) 1 SCC 712 (two-Judge Bench) in the follow....
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....rticle 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 dis....
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....ons 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. [Paragraphs 29 - 31.] Specifically, Development of Article 19(1)(c) 28. 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. Federation v. B. Narasimha Reddy (2011) 9 SCC 286 (two-Judge Bench)] 29. A Constitution Bench of this Court in Raghubar Dayal Jai Prakash v. Union of India AIR 1962 SC 263 (five-Judge Bench), made specific reference to restrictions imposed by statutes, vis-à-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 ena....
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....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. 33. 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. 34. This distinction has been enunciated by this Court as well. In Babulal Parate v. State of Maharashtra (1961) 3 SCR 423, as submitted by the Union of India, a Constitution Bench of this Court (five-Judge Bench) while upholding the constitutional validity of Section 144, Code of Criminal Procedure has held that whatever may be the position in the United States, the anticipatory action Under Section 144, Code of Criminal Procedure is permissible Under Clauses (2) and (3) of Article 19, which allow the legislature to make laws placing reasonable restrictions on the rights conferred by these claus....
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....ight, which is subject to regulatory measures contained in Clause 2 of Article 19 [Paragraph 77.] 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 Lohia (1960) 2 SCR 821 (five-Judge Bench); Pathumma v. State of Kerala (1978) 2 SCC 1 (seven-Judge Bench); M.C. Mehta v. Union of India (1987) 1 SCC 395 (Shriram - Oleum Gas) (five-Judge Bench); Ashok Kumar Thakur v. Union of India (2008) 6 SCC 1 (two-Judge Bench) and Jayendra Vishnu Thakur v. State of Maharashtra (2009) 7 SCC 104 (two-Judge Bench). 38. 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 States 249 US 47 (1919), which propounded the doctrine of clear and present danger, stating that it cannot be imported and applied in India. [Paragraph 8.] Further, holding that, the right to freedom of speech and expression in India is subject to reasonable restrictions and therefore, ther....
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....utside 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) 40. 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. [Paragraph 202(iii) & 203.] 41. The distinction as noted by this Court in various decisions between the American Constitution, specifically the First Amendment therein and Article 19 of the Indian Constitution have been noted hereinabove. 42. 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 Anr. v. Union of India and Ors. (1959) SCR 12 (five-Judge Bench) wherein the constitutionality of the Working Journalists (Conditions of S....
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.... 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. 46. 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. 47. 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 48. In Arup Bhayan, the learned bench of two judges placed reliance....
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.... 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 Constituti....
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.... 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. 56. In Noto v. United States 367 US 290 (1960), 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....
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....itutionally adequate basis for exclusion from such positions as those held by Appellants. 60. In Yates v. U.S. 354 US 298 (1957), 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. 61. Reliance was placed on Clarence Brandenberg (supra), as discussed above. 62. In Whitney v. California 274 US 357 (1926), 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 purp....
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....esented a different question. .... but the indictment alleges the publication, and nothing more. 64. In Terminiello v. Chicago 337 US 1 (1948), 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." 65. In De Jonge v. Oregon 299 US 353 (1936), 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....