ARUP BHUYAN v. STATE OF ASSAM & ANR

Citation: [2023] 8 S.C.R. 496

Court: Supreme Court of India

Bench: M. R. SHAH, C. T. RAVIKUMAR AND SANJAY KAROL, JJ.

Judgment text

SUPREME COURT OF INDIA ARUP BHUYAN v. STATE OF ASSAM & ANR. Criminal Appeal No. 889 of 2007 ARUP BHUYAN v. STATE OF ASSAM & ANR. (Criminal Appeal No. 889 of 2007) MARCH 24, 2023 [M. R. SHAH, C. T. RAVIKUMAR AND SANJAY KAROL, JJ. ] Unlawful Activities (Prevention) Act, 1967 - ss. 10(a)(i), 3 and 4 - s. 10(a)(i) provides that where an association is declared unlawful by a notification issued u/s. 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 - Whether "active membership" is required to be proven over and above the membership of a banned organization under the UAPA, 1967 - Held: The object and purpose of the enactment of UAPA is to provide for more effective prevention of certain unlawful activities - s. 10(a)(i) can be said to be absolutely in consonance with Arts.

19(1), (2) & (4) of the Constitution and can be said to be in furtherance of the object and purpose for which the UAPA has been enacted - Before any organization is declared unlawful, a detailed procedure is required to be followed including wide publicity and even the right to representation before tribunal - s. 10(a)(i) does not suffer from any vagueness and/or on the ground of being unreasonable and/or disproportionate - As per s. 10(a)(i), a person cannot be punished merely because he was the member of such unlawful association - If a person has been a member but does not continue to be a member after declaration, that does not attract mischief of s.

10 - However, once an association is declared unlawful of whom the concerned person was the member and he wishes to continue as a member despite the fact that he is well aware of the fact that such an association is declared unlawful it shows a conscious decision on his part and therefore he is liable to be penalized for such an act of continuation of his membership with such unlawful association - Therefore, thereafter he cannot be permitted to make grievance of chilling effect - Doctrines / Principles - Chilling effect doctrine. 496 ARUP BHUYAN v. STATE OF ASSAM & ANR. Constitution of India - Arts. 19(1)(c) and 19(4) - Right to freedom of speech - Value of Foreign decisions - Whether American decisions concerning freedom of speech could be relied upon while considering the right to freedom of speech available under the Constitution of India more particularly Art.

19(1)(c) and 19(4) - Held: Under the Constitution of India, the right to freedom of speech is subject to reasonable restrictions and is not an absolute right - The Constitution permits the Parliament to frame the laws taking into consideration the public order and/or the sovereignty of India - Without noticing the differences in American Laws and the Indian laws, the Supreme Court in the cases of Arup Bhuyan (two Judge Bench decision) and Raneef erred in straightway and directly following the US Supreme Court decisions - 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 - Judgment / Order. Unlawful Activities (Prevention) Act, 1967 - s. 10(a)(i) - Decisions of Supreme Court in the case of Raneef and Arup Bhuyan (two Judge Bench decision) taking the view on reading down s.

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 - Reading down of s. 10(a)(i) without impleading the Union of India as a party and more particularly when the constitutional validity of the aforesaid provision was not called in question - If proper - Held: 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 - In absence of any challenge to the constitutional validity of s. 10(a)(i) of the UAPA there was no question of reading down of the said provision by this Court - Reading down the provision of a statute cannot be resorted to when the meaning of a provision is plain and unambiguous and the legislative intent is clear - The Court ought not to have read down s.

10(a)(i) of the UAPA, 1967 when neither its' constitutional validity was under challenge nor the Union of India was heard. Interpretation of Statutes - Doctrines/Principles - "Reading down Doctrine" - Discussed. Answering the Reference, the Court HELD: per M. R. SHAH, J. (for himself, C. T. Ravikumar, J. and Sanjay Karol, J. ) 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 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. 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. 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. Also, reading down the provision of a statute cannot be resorted to when the meaning of a provision is plain and unambiguous and the legislative intent is clear.

This Court ought not to have read down Section 10(a)(i) of the UAPA, 1967 more particularly when neither the constitutional validity of Section 10(a)(i) of the UAPA, 1967 was under challenge nor the Union of India was heard. [Paras 11. 1, 11. 2, 11. 3, 11. 4 and 11. 5][535-F-H; 536-A-E, H] 2. Considering the different position of laws in US and in our country more particularly faced with Articles 19(1)(c) and 19(4) of the Constitution of India under which the right to freedom of speech is subject to reasonable restrictions and is not an absolute right and the constitution permits the Parliament to frame the laws taking into consideration the public order and/or the sovereignty of India, without noticing the differences in American ARUP BHUYAN v. STATE OF ASSAM & ANR.

Laws and the Indian laws, this Court in the case of Arup Bhuyan (two Judge Bench decision) and Raneef has erred in straightway and directly following the US Supreme Court decisions and that too without adverting to the differences and the position of laws in India. In the aforesaid two decisions without noticing the differences of the US Supreme Court this Court has just followed the American decisions, which cannot be accepted. This Court ought to have considered the differences in the American laws and the Indian laws more particularly the provisions in the Indian Constitution. By the aforesaid this Court does not say for a moment that in a given case the US Supreme Court decisions may not be taken into consideration and/or may not be 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. [Paras 13 and 13. 1][542- G-H; 453-A-C] 3.

1 Before any organization is declared unlawful a detailed procedure is required to be followed including the wide publicity and even the right to a member of such association to represent before the Tribunal. The notification issued by the Central Government declaring a particular association unlawful, 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. [Para 14. 5][554- E-F] 3. 2.

A person who is a member of such an unlawful association is as such aware of the declaration of such association as unlawful and despite the same if he still continues to be the member of such unlawful association which is indulging into the unlawful activities and acting against the sovereignty and integrity of India, his intention is very clear that he still wants to associate with such an association which is indulging into 'unlawful activities' and acting against the interests of sovereignty and integrity of India. The language used in the Section 10(1)(i) and the procedure to be followed under Sections 3 & 4 of the Act, before any association is declared as unlawful are very clear. Therefore, Section 10(a)(i) does not suffer from any vagueness and/or on the ground unreasonable and/or disproportionate. [Para 16. 1][556- E-G] 3. 3 As per Section 10(a)(i) a person cannot be punished merely because he was the member of such unlawful association.

The language including Section 10 is very significant. It provides that "wherein an association is declared unlawful" by notification under Section 3 which has become effective under sub-Section 3 of that Section. So, it is only after the Notification under Section 3 has become effective under subsection 3, that the latter part of that Section applies. The language of Section 10(a)(i) is also very cautiously worded "who is and continues to be a member of such association". Therefore, on true interpretation, if a person has been a member but does not continue to be a member after declaration, that does not attract mischief of Section 10. The intention seems to be that not only was he a member on the day when the association is declared unlawful but he continues to be a member.

The intention is very clear that not only on the given date but even after that you continue to be a member of that association which is declared as unlawful association due to unlawful activities which is found to be against the interests of sovereignty and integrity of India. Therefore, once an association is declared unlawful of whom the concerned person was the member wishes to continue as a member despite the fact that he is well aware of the fact that such an association is declared unlawful and if he still wishes to continue being a part of such unlawful association it shows a conscious decision on his part and therefore liable to be penalized for such an act of continuation of his membership with such unlawful association. Therefore, thereafter he may not make grievance of chilling effect. [Para 17. 1][557-B-F] 4.

The view taken by this Court in the cases of Raneef, Arup Bhuyan (two Judge Bench decision), and Sri Indra Das taking the view that under Section 3(5) of Terrorists and Disruptive Activities (Prevention) Act, 1987 and Section 10(a)(i) of the Unlawful Activities (Prevention) Act, 1967 mere membership of a banned organization will not incriminate a person ARUP BHUYAN v. STATE OF ASSAM & ANR. 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.

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. [Para 18][557- G-H; 558-A-C] State of Kerala vs. Raneef (2011) 1 SCC 784 : [2011] 1 SCR 590; Arup Bhuyan vs. Union of India(2011) 3 SCC 377 : [2011] 2 SCR 506 and Indra Das v. State of Assam(2011) 3 SCC 380 : [2011] 4 SCR 289 - held not good law. Babulal Parate vs. State of Maharashtra [1961] 3 SCR 423; Madhu Limaye vs. Sub-Divisional Magistrate (1970) 3 SCC 746 : [1971] 2 SCR 711; Supdt. , Central Prison vs. Dr. Ram Manohar Lohia [1960] 2 SCR 821; JosephKuruvilla Vellukunnel vs. Reserve Bank of India [1962] Supp 3 SCR 632; Ashoka Kumar Thakur vs. Union of India (2008) 6 SCC 1 : [2008] 4 SCR 1; Kesavananda Bharti vs.

State of Kerala(1973) 4 SCC 225 : [1973] Suppl. SCR 1;State of Bihar vs. Union of India(1970) 1 SCC 67 : [1970] 2 SCR 522 and Subramanian Swamy and others vs. Raju through Member, Juvenile Justice Board and Anr. (2014) 8 SCC 390 : [2014] 9 SCR 283 - relied on. Sanjeev Coke Manufacturing Company v. M/s Bharat Cooking Coal Limited (1983) 1 SCC 147 : [1983] 1 SCR 1000;Kaushal Kishor v. State of Uttar Pradesh and Others2023 SCC OnLine SC 6; Ramlila Maidan Incident, In re, (2012) 5 SCC 1 : [2012] 4 SCR 971; M. C. Mehta v. Union of India (1987) 1 SCC 395 : [1987] 1 SCR 819;Pathumma v. State of Kerala(1978) 2 SCC 1 : [1978] 2 SCR 537; People's Union for Civil Liberties v. Union of India (2004) 9 SCC 580 : [2003] 6 Suppl. SCR 860; State of Gujarat v. Shyamlal Mohanlal Choksi [1965] 2 SCR 457; Shreya Singhal v. Union of India (2015) 5 SCC 1 : [2015] 5 SCR 963;Kedar Nath v. State of Bihar, AIR 1962 SC 955 : [1962] Suppl. SCR 769;State of Bihar v.

Shailabala Devi AIR 1952 SC 329 : [1952] SCR 654;S. Rangarajan v. P. Jagjivan Ram and others (1989) 2 SCC 574 : [1989] 2 SCR 204; O. K. Ghosh v. E. X. Joseph, AIR 1963 812 : [1963] Suppl. SCR 789; Balwant Singh v. State of Punjab (1995) 3 SCC 214 : [1995] 2 SCR 411; Kartar Singh v. State of Punjab (1994) 3 SCC 569 : [1994] 2 SCR 375; T. N. Education Deptt. Ministerial and General Subordinate Services Assn. vs. State of Tamil Nadu (1980) 3 SCC 97 : [1980] 1 SCR 1026; Mafatlal Industrial Ltd. vs. Union of India(1997) 5 SCC 536 : [1996] 10 Suppl. SCR 585 andThawaha Fasal vs. Union of India(2021) SCC Online SC 1000 - referred to. Niharendu Dutt Majumdar v. The King Emperor1942 F. C. R. 38 - referred to. Schenck vs. United States 249 U. S. 47 (1919); Brandenburg vs. Ohio 395 U. S. 444 (1969);Scales vs. United States [6 L Ed 2d 782]; Elfbrandt vs. Russell [16 L Ed 2d 321];Joint Anti-Fascist Refugee Committee vs. McGrath[95 L Ed 817] - referred to. per SANJAY KAROL, J.

(Separately concurring as well) 1. 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. [Para 15][567-C] 2. In Arup Bhayan, the Court placed reliance on American decisions in Elfbrandt v. Russel, Clarence Brandenberg v. State of ARUP BHUYAN v. STATE OF ASSAM & ANR. Ohio and United States v. Eugene Frank Robel wherein the doctrine of 'guilt by association' has been rejected. The court observed that the abovementioned judgments apply to India too, since the fundamental rights in India are similar to the Bill of Rights in the U. S. Constitution.

The abovementioned decisions are in contradistinction to the scenario in question in India. The American decisions primarily involve indictment on the basis of membership of political organizations or incidents of free speech advocating overthrow of the government. However, under Indian law, it is not membership of political organizations etc. or free speech or criticism of the government that is sought to be banned, it is only those organizations which aim to compromise the sovereignty and integrity of India and have been notified to be such and unlawful, whose membership is prohibited. This is in furtherance of the objective of the UAPA, which has been enacted to provide for the more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected therewith. The distinction, therefore, is clear. [Paras 30 and 48][572-F; 579-A-C] 3.

There is "a world of difference" between the American and Indian scenario, so far as, sub serving public interest is concerned. It is this difference which seemed to have escaped the division bench's attention in Arup Bhyan and Indra Das. Therefore, placing reliance on decisions rendered in a distinct scenario as well as a demonstrably different constitutional position, that too almost singularly, especially in cases which involve considerations of national security and sovereignty, was not justified. [Paras 50 and 52][580-C, F] Arup Bhuyan v. State of Assam(2011) 3 SCC 377 : [2011] 2 SCR 506 and Sri Indra Das v. State of Assam (2011) 3 SCC 380 : [2011] 4 SCR 289 - held not good law. Babulal Parate v. State of Maharashtra[1961] 3 SCR 423 and Madhu Limaye v. Sub-Divisional Magistrate (1970) 3 SCC 746 : [1971] 2 SCR 711 - followed. Union of India v. Naveen Jindal and Another(2004) 2 SCC 510 : [2004] 1 SCR 1038; Hyderabad Asbestos Cement Products and Anr. v. Union of India and Ors.

(2000) 1 SCC 426 : [1999] 5 Suppl. SCR 155; Shreya Singhal v. Union of India(2015) 5 SCC 1 : [2015] 5 SCR 963; Indian Express Newspapers (Bombay) Pvt. Ltd. and Others v. Union of India and Others(1985) 1 SCC 641 : [1985] 2 SCR 287; Superintendent, Central Prison v. Dr. Ram Manohar Lohia[1960] 2 SCR 821; Pathumma v. State of Kerala(1978) 2 SCC 1 : [1978] 2 SCR 537; M. C. Mehta v. Union of India(1987) 1 SCC 395 : [1987] 1 SCR 819; Ashok Kumar Thakur v. Union of India(2008) 6 SCC 1 : [2008] 4 SCR 1; Jayendra Vishnu Thakur v. State of Maharashtra(2009) 7 SCC 104 : [2009] 8 SCR 591 and Ramlila Maidan Incident, In re,(2012) 5 SCC 1 : [2012] 4 SCR 971 - relied on. Kaushal Kishor v. State of U. P. & Ors. 2023 SCC Online 6;Arup Bhuyan v. State of Assam(2015) 12 SCC 702; Dharam Dutt v. Union of India(2004) 1 SCC 712 : [2003] 6 Suppl. SCR 151;State of Madras v. VG Row [1952] SCR 597;State of Bihar v. Shailabala DeviAIR 1952 SC 329 : [1952] SCR 654;O. K. Ghosh and Anr. v. E. X.

JosephAIR 1963 SC 812 : [1963] Suppl. SCR 789; A. P. Dairy Development Corpn. Federation v. B. Narasimha Reddy (2011) 9 SCC 286 : [2011] 14 SCR 1; Raghubar Dayal Jai Prakash v. Union of IndiaAIR 1962 SC 263 : [1962] 3 SCR 547;Jamaat-E-Islami Hind v. Union of India(1995) 1 SCC 428 : [1994] 6 Suppl. SCR 316; Express Newspapers (Pvt. ) Limited and Another v. Union of India and Others [1959] SCR 12; State of Travancore - Cochin and Others v. Bombay Co. Ltd. [1952] SCR 1112;State of Bombay v. R. M. D. Chamarbaugwala [1957] SCR 874; Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd. and Ors. (1988) 4 SCC 592 : [1988] 3 Suppl. SCR 212;R. K. Garg v. Union of India (1981) 4 SCC 675 : [1982] 1 SCR 947;Maneka Gandhi v. Union of India(1978) 1 SCC 248 : [1978] 2 SCR 621 and State of Kerela v. Raneef(2011) 1 SCC 784 : [2011] 1 SCR 590 - referred to. ARUP BHUYAN v. STATE OF ASSAM & ANR. Morey v. Doud 354 US 457 (1957); Secy. of Agriculture v.

Central Roig Refining Co. 338 US 604 (1949);Ghani v. Jones (1970) 1 QB 693; Elfbrandt v. Russel384 U. S. 17 (1966);Clarence Brandenberg v. State of Ohio395 U. S. 444 (1969);United States v. Eugene Frank Robel 389 U. S. 258 (1967);Clarence Brandenberg v. State of Ohio395 U. S. 444 (1969);United States v. Eugene Frank Robel389 U. S. 258 (1967); Scales v. United States367 US 203 (1960); Noto v. United States367 US 290 (1960);Communist Party v. Subversive Activities Control Board 367 US 1 (1961); Joint Anti-Fascist Refugee Committee v. McGrath 341 US 123, 174 (1951); Keyishian v. Board of Regents of New York385 US 589 1966; In Yates v. U. S. 354 US 298 (1957); Whitney v. California274 US 357 (1926); Gitlow v. New York 268 US 652 (1925); Terminiello v. Chicago 337 US 1 (1948) andDe Jonge v. Oregon299 US 353 (1936)- referred to. Case Law Reference In the judgment of M. R. SHAH, J.

[2011] 1 SCR 590 held not good law Para 1 [2011] 2 SCR 506 held not good law Para 1 [1961] 3 SCR 423 relied on Para 4 [1971] 2 SCR 711 relied on Para 4 [1960] 2 SCR 821 relied on Para 4. 1 [2012] 4 SCR 971 referred to Para 4. 1 [1962] Supp 3 SCR 632 relied on Para 4. 2 [1987]1 SCR 819 referred to Para 4. 2 [2008] 4 SCR 1 relied on Para 4. 2 [1978] 2 SCR 537 referred to Para 4. 2 [2011] 4 SCR 289 held not good law Para 5 [2003] 6 Suppl. SCR 860 referred to Para 7. 2 [1965] 2 SCR 457 referred to Para 7. 3 [1983] 1 SCR 1000 referred to Para 7. 4 [2015] 5 SCR 963 referred to Para 7. 5 [1962] Suppl. SCR 769 referred to Para 7. 8 [1952] SCR 654 referred to Para 7. 9 [1989] 2 SCR 204 referred to Para 7. 10 [1963] 1 Suppl. SCR 789 referred to Para 7. 11 [1995] 2 SCR 411 referred to Para 7. 12 [1994] 2 SCR 375 referred to Para 7. 13 [1973] Suppl. SCR 1 referred to Para 9. 3 [1980] 1 SCR 1026 referred to Para 9. 3 [1996] 10 Suppl. SCR 585 referred to Para 9. 3 [2014] 9 SCR 283 relied on Para 11.

4 [1970] 2 SCR 522 relied on Para 12. 7 [1973] Suppl. SCR 1 relied on Para 12. 9 In the judgment of SANJAY KAROL, J. (2015) 12 SCC 702 referred to Para 1 [2011] 2 SCR 506 held not good law Para 2 [2011] 4 SCR 289 held not good law Para 2 [2003] 6 Suppl. SCR 151 referred to Para 6 [1952] SCR 597 referred to Para 7 [1952] SCR 654 referred to Para 8 [1963] Suppl. SCR 789 referred to Para 8 [2015] 5 SCR 963 relied on Para 8 [2011] 14 SCR 1 referred to Para 10 [1962] 3 SCR 547 referred to Para 11 [1994] 6 Suppl. SCR 316 referred to Para 13 [1961] 3 SCR 423 followed Para 16 [1971] 2 SCR 711 followed Para 17 [1985] 2 SCR 287 relied on Para 18 [2004] 1 SCR 1038 relied on Para 19 ARUP BHUYAN v. STATE OF ASSAM & ANR.

[1960] 2 SCR 821 relied on Para 19 [1978] 2 SCR 537 relied on Para 19 [1987] 1 SCR 819 relied on Para 19 [2008] 4 SCR 1 relied on Para 19 (2009) 8 SCR 591 relied on Para 19 [2012] 4 SCR 971 relied on Para 20 [1959] SCR 12 referred to Para 24 [1952] SCR 1112 referred to Para 24 [1957] SCR 874 referred to Para 24 [1988] 3 Suppl. SCR 212 referred to Para 25 [1982] 1 SCR 947 referred to Para 26 [1978] 2 SCR 621 referred to Para 27 [2011] 1 SCR 590 referred to Para 31 [1999] 5 Suppl. SCR 155 relied on Para 49 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 889 of 2007. From the Judgment and Order dated 28. 03. 2007 of the Designated Court, Assam at Guwahati in TADA Sessions Case No. 13 of 1991. With Review Petition (Criminal) No. 417 of 2011 in Criminal Appeal No. 1383 of 2007, Review Petition (Criminal) No. 426 of 2011 in Criminal Appeal No. 889 of 2007, Special Leave Petition (Crl. ) Nos. 5971, 5964 of 2019, Criminal Appeal No. 1383 of 2007, SLP (Crl. )... CRLMP No.

16637 of 2014, and Special Leave Petition Nos. 5643, 6270 of 2019. Tushar Mehta, Solicitor General, K M Nataraj, A. S. G. , Vinay Navare, Sanjay Parikh, R. Basant, Sr. Advs. , Ms. Ranjana Narayan, Kanu Agrawal, Rajan Kumar Chourasia, Sandeep Kumar Mahapatra, Navanjay Mahapatra, Ashok Panigarhi, Arvind Kumar Sharma, Gurmeet Singh Makker, Shuvodeep Roy, Deepayan Dutta, Sai Shashank, Jawahar Raja, Pukhrambam Ramesh Kumar, Karun Sharma, Archit Krishana, Ms. Varsha Sharma, Ms. Moksha Sharma, Haris Beeran, Mushtaq Salim, Azhr Assees, Radha Shyam Jena, Azim H. Laskar, Bikas Kar Gupta, Ms. Debarati Sadhu, Ms. Debanjana Ray Choudhury, Debojyoti Mukhopadhyay, Abhijit Sengupta, Mohamad Shareef K. P. , P. A. Noor Mohamed, Advs. for the appearing parties. The Judgments of the Court were delivered by M. R. SHAH, J. 1. Present reference to the larger Bench is made against the judgment and order in the case of Arup Bhuyan vs. Union of India, (2011) 3 SCC 377 as well as State of Kerala vs.

Raneef, (2011) 1 SCC 784, pursuant to the order passed by this Court dated 26. 08. 2014, reported as (2015) 12 SCC 702. Background of the Reference 2. That the Division Bench of this Court in the case of Raneef (supra) whilst relying upon numerous American decisions concerning freedom of speech and position on membership of banned organizations rejected the doctrine of "guilt by association" and observed that mere membership of a banned organization will not incriminate a person unless he resorts to violence or incites people to violence and does an act intended to create disorder or disturbance of public peace by resort to violence. In paragraphs 10 to 14 this Court in the case of Raneef (supra) observed and held as under: "10. ) As regards the allegation that the respondent belongs to the PFI, it is true that it has been held in Redaul Husain Khan vs.

National Investigation Agency 2010 (1) SCC 521 that merely because an organization has not been declared as an `unlawful association' it cannot be said that the said organization could not have indulged in terrorist activities. However, in our opinion the said decision is distinguishable as in that case the accused was sending money to an extremist organization for purchasing arms and ammunition. That is not the allegation in the present case. The decision in State of Maharashtra vs. Dhanendra Shriram Bhurle 2009(11) SCC 541 is also distinguishable because good reasons have been given in the present case by the High Court for granting bail to the respondent. In the present case there is no evidence as yet to prove that the P. F. I. is a terrorist organization, and hence the respondent cannot be penalized merely for belonging to the P. F. I. Moreover, even assuming that the P. F. I.

is an illegal organization, we have yet to consider whether all members of the organization can be automatically held to be guilty. ARUP BHUYAN v. STATE OF ASSAM & ANR. [M. R. SHAH, J. ] 11. In Scales vs. United States 367 U. S. 203 Mr. Justice Harlan of the U. S. Supreme Court while dealing with the membership clause in the McCarran Act, 1950 distinguished between active 'knowing' membership and passive, merely nominal membership in a subversive organization, and observed : "The clause does not make criminal all association with an organization which has been shown to engage in illegal activity. A person may be foolish, deluded, or perhaps mere optimistic, but he is not by this statute made a criminal. There must be clear proof that the defendant specifically intends to accomplish the aims of the organization by resort to violence. " 12. In Elfbrandt vs. Russell 384 US 17-19 (1966) Justice Douglas of the U. S.

Supreme Court speaking for the majority observed : "Those who join an organization but do not share its unlawful purpose and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. A law which applies to membership without the `specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of `guilt by association' which has no place here. " 13. In Joint Anti-Fascist Refugee Committee vs. McGrath 341 US 123 at 174 (1951) Mr. Justice Douglas of the U. S. Supreme Court observed : "In days of great tension when feelings run high, it is a temptation to take shortcuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within. " 14. We respectfully agree with the above decisions of the U. S.

Supreme Court, and are of the opinion that they apply in our country too. We are living in a democracy, and the above observations apply to all democracies. " 2. 1 That thereafter the Division Bench of this Court in another decision in the case of Arup Bhuyan (supra) whist relying upon Raneef (supra) and relying upon the same American doctrines which were earlier considered in the case of Raneef (supra) has observed in paragraph 12 as under: "We respectfully agree with the above decisions, and are of the opinion that they apply to India too, as our fundamental rights are similar to the Bill of Rights in the U. S. Constitution. In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in the light of our observations made above.

Hence, mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence. Hence, the conviction of the appellant under Section 3(5) of the TADA is also not sustainable. " 2. 2 At this stage it is required to be noted that at the time when Raneef (supra) and Arup Bhuyan (Supra) were decided neither Section 10(i) of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the 'UAPA Act, 1967') was under challenge and/or the constitutionality of the said provision was under challenge nor even the Union of India was a party to the said proceedings and the Division Benches of the Court in the aforesaid two decisions made observations on Section 10(a)(i) of the UAPA Act, 1967 without giving any opportunity to the Union of India.

Therefore, the Union of India filed the applications seeking permission to file a review petition on the ground that the interpretation made by this Court in the aforesaid two decisions would be prejudicial to their interests and therefore, the Union of India had a right to be heard. The State of Assam also preferred the review petitions. 2. 3 Having regard to the important issue raised by the learned Solicitor General and the Senior Counsel for the State of Assam, by order dated 26. 08. 2014 reported in (2015) 12 SCC 702 the matter is referred to the larger Bench. While referring the matter to the larger Bench this Court noted the submissions made by the learned Solicitor General in paragraphs 4 to 7 and 10 to 11 as under: "4. Mr. Ranjit Kumar, learned Solicitor General appearing for the Union of India, has submitted that in the case of Arup Bhuyan vs.

State of Assam, 2011 (3) SCC 377, this Court has read down the provision to the detriment of the interest of the Union of India when it was not a party before it. He has also invited our attention to the decision in Sri Indra Das vs. State of Assam 2011 (3) SCC 380. In Arup Bhuyan's case as well as in the case Sri Indra Das, the two-Judge Bench has referred to many ARUP BHUYAN v. STATE OF ASSAM & ANR. [M. R. SHAH, J. ] authorities of Supreme Court of United States of America and thereafter quoted a passage from Kedar Nath vs. State of Bihar AIR 1962 SC 955 and relied on State of Kerala vs. Raneef (2011) 1 SCC 784 and eventually opined thus: "27. We may also consider the legal position, as it should emerge, assuming that the main s. 124A is capable of being construed in the literal sense in which the Judicial Committee of the Privy Council has construed it in the cases referred to above.

On that assumption, it is not open to this Court to construe the section is such a way as to avoid the alleged unconstitutionality by limiting the application of the section in the way in which the Federal Court intended to apply it ? In our opinion, there are decisions of this Court which amply justify our taking that view of the legal position. This Court, in the case of R. M. D. Chamarbaugwalla v. The Union of India (1) has examined in detail the several decisions of this Court, as also of the Courts in America and Australia. After examining those decisions, this Court came to the conclusion that if the impugned provisions of a law come within the constitutional powers of the legislature by adopting one view of the words of the impugned section or Act, the Court will take that view of the matter and limit its application accordingly, in preference to the view which would make it unconstitutional on another view of the interpretation of the words in question.

In that case, the Court had to choose between a definition of the expression 'Prize Competitions" as limited to those competitions which were of a gambling character and those which were not. The Court chose the former interpretation which made the rest of the provisions of the Act, Prize Competitions Act (XLII of 1955), with particular reference to ss. 4 and 5 of the Act and Rules 11 and 12 framed thereunder, valid. The Court held that the penalty attached only to those competitions which involved the element of gambling and those competitions in which success depended to a substantial degree on skill were held to be out of the purview of the Act.

The ratio decidendi in that case, in our opinion, applied to the case in hand in so far as we propose to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace. " 5. It is submitted by Mr. Ranjit Kumar that such reading down of a provision should not have been done without impleading the Union of India as a party and moreover, when the constitutional validity was not called in question. He has drawn our attention to Section 10 of the Unlawful Activities (Prevention) Act, 1967. It reads as follows: "[10. Penalty for being member of an unlawful association, etc.

- Where an association is declared unlawful by a notification issued under section 3 which has become effective under sub- section (3) of that section,- (a) a person, who (i) is and continues to be a member of such association; or (ii) takes part in meetings of such association; or (iii) contributes to, or receives or solicits any contribution for the purpose of, such association; or (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.

]" 6. The aforesaid provision was inserted by way of amendment with effect from 21/09/2004. Relying upon the said ARUP BHUYAN v. STATE OF ASSAM & ANR. [M. R. SHAH, J. ] provision, it is contended by him that if the view expressed in Arup Bhuyan (supra) and Sri Indra Das (supra) is allowed to remain in the field various laws in other enactments would be affected. It is further urged by him that the Court has erroneously referred to its earlier judgment in Raneef's case wherein the basic fact was different, namely, the Social Democratic Party of India (SDPI) was not a banned organization. The learned Solicitor General would impress upon us that once an organization is banned, Section 10 of the 1967 Act would come into play.

Learned Solicitor General has also drawn our attention to certain paragraphs in Raneef's case wherein it has been opined even assuming the PFI is an illegal organization, yet it remains to be considered whether all the members of the Organization can be categorically held to be guilty. It is put forth by him that the said judgment did not affect the provisions in other enactments inasmuch as the PFI was not a banned Organization, but after the decisions in Arup Bhuyan (supra) and Sri Indra Das (supra), the Trial Courts and the High Courts are relying on the said decisions by giving emphasis on the facet of mens rea. The submission in essence, is that had the Union of India been impleaded as a party it could have put forth its stand before the Court and then possibly such reading down of the provision would not have been required. 7. Mr.

Jaideep Gupta, learned senior counsel appearing for the State of Assam, supporting the stand put forth by the Union of India has urged that if such an interpretation is allowed to stand the terrorism would spread and it will be difficult on the part of the State to control the said menace. It is further canvassed by him that the abuse of process of law would not affect the constitutional validity and that to when it is not under assail. xxx xxx xxx 10. The crux of the matter as submitted by Mr. Ranjit Kumar, learned Solicitor General for Union of India, is that when any provision in Parliamentary legislation is read down, in the absence of Union of India it is likely to cause enormous harm to the interest of the State as in many cases certain provisions have been engrafted to protect the sovereignty and integrity of India. 11.

The learned Solicitor General would contend that the authorities which have been placed reliance upon in both the judgments by the two-Judge Bench are founded on Bill of Rights which is different from Article 19 of the Constitution of India. He has referred to Article 19(1)(c) and 19(4) of the Constitution. Article 19(1)(c) reads as follows. "19(1)(c) to form associations or unions;" The said article is further restricted by Article 19(4) which is as follows: (4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of 4 [the sovereignty and integrity of India or] public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

" Relying upon the same it is highlighted by the learned Solicitor General that the Court has not kept this aspect in view while placing heavy reliance on the foreign authorities which are fundamentally not applicable to the interpretative process of the provisions which have been enacted in consonance with the provisions of the 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 considering the right to freedom of speech available ARUP BHUYAN v. STATE OF ASSAM & ANR. [M. R. SHAH, J. ] under the Constitution of India more particularly Article 19(1)(c) and 19(4) of the Constitution of India?

Another question which is required to be considered is whether this Court was justified in reading down of a provision (Section 10(a)(i) of the UAPA Act, 1967) without impleading the Union of India as a party and more particularly when the constitutional validity of the aforesaid provision was not called in question? 2.

5 While appreciating the submissions on behalf of the respective parties on the aforesaid issues, the relevant provisions of the UAPA, 1967 are required to be referred to which are as under: "Section 2 - Definitions: (1) In this Act, unless the context otherwise requires,-- (a) association means any combination or body of individuals; (k) terrorist act has the meaning assigned to it in section 15, and the expressions terrorism and terrorist shall be construed accordingly; (l) terrorist gang means any association, other than terrorist organisation, whether systematic or otherwise, which is concerned with, or involved in, terrorist act; (m) terrorist organisation means an organisation listed in the 9[First Schedule] or an organisation operating under the same name as an organisation so listed; (o) unlawful activity, in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),-- (i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or (ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or (iii) which causes or is intended to cause disaffection against India; (p) unlawful association means any association,-- (i) which has for its object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity, or of which the members undertake such activity; or (ii) which has for its object any activity which is punishable under section 153A (45 of 1860) or section 153B of the Indian Penal Code, or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity: Section 3 - Declaration of an association as unlawful (1) If the Central Government is of opinion that any association is, or has become, an unlawful association, it may, by notification in the Official Gazette, declare such association to be unlawful.

(2) Every such notification shall specify the grounds on which it is issued and such other particulars as the Central Government may consider necessary: 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 affected is situated, and shall also be served on such association in such manner as the Central Government may think fit and all or any of the following modes may be followed in effecting such service, namely:-- ARUP BHUYAN v. STATE OF ASSAM & ANR. [M. R. SHAH, J. ] (a) by affixing a copy of the notification to some conspicuous part of the office, if any, of the association; or (b) by serving a copy of the notification, where possible, on the principal office-bearers, if any, of the association; or (c) by proclaiming by beat of drum or by means of loudspeakers, the contents of the notification in the area in which the activities of the association are ordinarily carried on; or (d) in such other manner as may be prescribed.

Section 4 - Reference to Tribunal - (1) Where any association has been declared unlawful by a notification issued under sub-section (1) of section 3, the Central Government shall, within thirty days from the date of the publication of the notification under the said sub-section, refer the notification to the Tribunal for the purpose of adjudicating whether or not there is sufficient cause for declaring the association unlawful. (2) On receipt of a reference under sub-section (1), the Tribunal shall call upon the association affected by notice in writing to show cause, within thirty days from the date of the service of such notice, why the association should not be declared unlawful.

(3) After considering the cause, if any, shown by the association or the officebearers 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.

Section 5 - Tribunal - (1) The Central Government may, by notification in the Official Gazette, constitute, as and when necessary, a tribunal to be known as the "Unlawful Activities (Prevention) Tribunal" consisting of one person, to be appointed by the Central Government: Provided that no person shall be so appointed unless he is a Judge of a High Court. (2) If, for any reason, a vacancy (other than a temporary absence) occurs in the office of the presiding officer of the Tribunal, then, the Central Government shall appoint another person in accordance with the provisions of this section to fill the vacancy and the proceedings may be continued before the Tribunal from the stage at which the vacancy is filled. (3) The Central Government shall make available to the Tribunal such staff as may be necessary for the discharge of its functions under this Act. (4) All expenses incurred in connection with the Tribunal shall be defrayed out of the Consolidated Fund of India.

(5) Subject to the provisions of section 9, the Tribunal shall have power to regulate its own procedure in all matters arising out of the discharge of its functions including the place or places at which it will hold its sittings. (6) The Tribunal shall, for the purpose of making an inquiry under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely: (a) the summoning and enforcing the attendance of any witness and examining him on oath; (b) the discovery and production of any document or other material object producible as evidence; (c) the reception of evidence on affidavits; (d) the requisitioning of any public record from any court or office; (e) the issuing of any commission for the examination of witnesses.

(7) Any proceeding before the Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860) and the Tribunal shall be deemed to be a civil court for the purposes of section 195 and [Chapter XXVI] of the [Code]. ARUP BHUYAN v. STATE OF ASSAM & ANR. [M. R. SHAH, J. ] Section 6 - Period of operation and cancellation of notification - (1) Subject to the provisions of sub-section (2), a notification issued under section 3 shall, if the declaration made therein is confirmed by the Tribunal by an order made under section 4, remain in force for a period of [five years] from the date on which the notification becomes effective. (2) Notwithstanding anything contained in sub- section (1), the Central Government may, either on its own motion or on the application of any person aggrieved, at any time, cancel the notification issued under section 3, whether or not the declaration made therein has been confirmed by the Tribunal.

" 3. Shri Tushar Mehta, learned Solicitor General has also taken us to the background to the UAPA and the enactment of Article 19(1) and 19(4) of the Constitution of India vide Constitution (Sixteenth Amendm nt) Act, 1963. It is submitted that exception to the freedom to form associations under Article 19(1) was inserted in the form of sovere gnty and integrity of India in Article 19(4), after the National Integration ouncil 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 recommendati ns of the Committee, the Constitution (Sixteenth Amendment) Act, 1963 as enacted to impose, by law, reasonable restrictions in the interests of the sovereignty and integrity of India. Article 19(1)(c) and 19(4) of the Constitution of India reads as follows: "19.

(1)(c) to form associations or unions;" The said is further restricted by Article 19(4) which is as follows: 19(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. " Relying upon the same it is highlighted by the learned Solicitor General that the Court has not kept this aspect in view while placing heavy reliance on the foreign authorities which are fundamentally not applicable to the interpretative process of the provisions which have been enacted in consonance with the provisions of the Constitution of India. " 3. 1 It is submitted that in order to implement the provision of the 1963 Act, the Unlawful Activities (Prevention) Bill was introduced in the Parliament.

The main objective of the UAPA is to make powers available for dealing with activities directed against the integrity and sovereignty of India. He has taken us to the preamble and the objects and reasons for enactment of the UAPA. It is submitted that to achieve the object and purpose for which the UAPA has been enacted, Section 10(a)(i) provides that where an association is declared unlawful by a notification issued under Section 3 which has become effective under sub-section (3) of that Section, a person, who is and continues to be a member of such association shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine. It is submitted that therefore so long as Section 10(a)(i) stands a person who is or continues to be a member of such association shall be liable to be punished. It is submitted that Section 10(a)(i) does not require any further overt act and/or mens rea.

It is submitted that mere membership of a declared unlawful association, declared unlawful under Section 3 is sufficient to warrant the prosecution and the conviction. 3. 2 It is submitted that under the provisions of the UAPA, 1967 before an organization/association is declared as unlawful under Section 3 of the UAPA the procedure as required under the UAPA namely Section 3 of the UAPA is required to be followed. It is submitted that even thereafter and after any association/organization is declared as unlawful under Section 3 of the UAPA, such association which has been declared unlawful by a Notification issued under sub-section (1) of Section 3, within 30 days from the date of the publication of the notification, the Central Government is required to refer to the Tribunal for the purpose of adjudicating whether or not, there is sufficient cause for declaring the association unlawful.

It is submitted that as per Section 4(2) on receipt of a reference under sub-section (1) of 4, the Tribunal shall thereafter call upon the association affected by notice in writing to show cause within 30 days from the date of the service of such notice, why the association be not declared unlawful? It is submitted that thereafter and after considering the cause, if any, shown by the association or the officebearers or members thereof, the Tribunal is required to hold an inquiry in ARUP BHUYAN v. STATE OF ASSAM & ANR. [M. R. SHAH, J. ] the manner specified in Section 9 and after calling for such further information as it may consider necessary from the Central Government or from office-bearer or member of the association, the Tribunal shall decide whether or not there is sufficient cause for declaring the association to be unlawful and thereafter may pass such order as it may deem fit either confirming the declaration made in the notification or cancelling the same.

It is submitted that the order of the Tribunal made under sub-section (3) shall have to be published in the Official Gazette. 3. 3 Taking us to the relevant provisions of UAPA on declaration of any organization/association as "unlawful" namely Sections 3 to 6, learned Solicitor General has submitted that from a perusal of the aforesaid provisions/sections, it is clear that the declaration of an organization as an "unlawful organization" is not on the basis of an executive diktat. It is submitted that such designation is actually a product of a robust adversarial process wherein ample opportunity is given to the organization to appeal to the better senses of a judicially trained mind in order to justify its aims, objectives and activities being legal and not "unlawful" within the constitutional setup. It is submitted that the same must have a bearing whilst deciding any question of criminalization of "mere membership". 4.

Now so far as the correctness of the observations made by this Court in the case of Raneef (supra) and Arup Bhuyan (supra) that while considering the offences under Sections 10(a)(i) the prosecution has to prove the "active membership" of any person accused of being a member of a banned organization, it is submitted that in the case of Arup Bhuyan (supra) this Court has just followed the observations made in the earlier decision in the case of Raneef (supra) in which this Court just accepted and followed the American decisions referred to on the freedom of speech applicable in America and considering the American doctrine on freedom of speech. It is submitted that as such this Court ought not to have straight way followed and/or accepted the American doctrine on freedom of speech without taking into consideration the Constitutional provisions so far as the India is concerned, more particularly Article 19(1)(c) and 19(4) of the Constitution.

It is submitted that this Court in the case of Babulal Parate vs. State of Maharashtra, (1961) 3 SCR 423 has specifically rejected the importing of the American doctrine on freedom of speech and specifically rejected the said importing in the context of 'determining criminality' by way of two Constitution Bench judgments which have not even been considered by the learned Benches hearing the case in Raneef (supra) and Arup Bhuyan (supra). The learned Solicitor General has heavily relied upon paragraphs 23 to 28 of the decision in the case of Babulal (supra) and paragraphs 16 & 17 of the decision in the case of Madhu Limaye vs. Sub-Divisional Magistrate, (1970) 3 SCC 746. 4. 1 Learned Solicitor General has also relied upon the decisions of this Court in the case of Supdt. , Central Prison vs. Dr.

Ram Manohar Lohia, (1960) 2 SCR 821 (paragraphs 9 to 11) and in the case of Ramlila Maidan Incident, In re, (2012) 5 SCC 1 on the reliance to be placed on American constitutional position in context of public order and free speech. It is submitted that in the aforesaid it is specifically observed that the American doctrine adumbrated in Schenck case cannot be imported or applied. It is observed that under our Constitution, this right - freedom of speech is not an absolute right but is subject to the restrictions. It is submitted that it is further observed that thus the position under our Constitution is different. It is observed by this Court in the aforesaid decisions that fundamental right enshrined in the Constitution itself being made subject to reasonable restrictions, the laws so enacted to specify certain restrictions on the right to freedom of speech and expression have to be construed meaningfully and with the constitutional object in mind.

It is submitted that it is further observed that thus there is a marked distinction in the language of law, its possible interpretation and application under the Indian and the US Laws. 4. 2 It is further submitted by the learned Solicitor General that on numerous occasions this Court declined to import the American doctrine of such subjects. Reliance is placed on the decisions of this Court in the case of Joseph Kuruvilla Vellukunnel vs. Reserve Bank of India, 1962 Supp (3) SCR 632 (para 50 & 75); M. C. Mehta vs. Union of India (Shriram - Oleum Gas), (1987) 1 SCC 395 (para 29); Ashoka Kumar Thakur vs. Union of India (2008) 6 SCC 1 (para 188 to 190) and Pathumma vs. State of Kerala, (1978) 2 SCC 1 (para 23). 4. 3 Making above submissions and relying upon the above decisions, it is vehemently submitted by Shri Mehta, learned Solicitor General that therefore the American doctrine of "clear and present danger" [Schenck vs. United States, 249 U. S.

47 (1919)] and "imminent lawless action" [Brandenburg vs. Ohio, 395 U. S. 444 (1969)] are alien to Indian constitutional law. ARUP BHUYAN v. STATE OF ASSAM & ANR. [M. R. SHAH, J. ] 4. 5 Making above submissions, it is submitted that the observations made by this Court in Raneef (supra) and Arup Bhuyan (supra) following and/or relying upon the American doctrines on freedom of speech may be overruled and the statutory position be reaffirmed. 5.

Now so far as reading down Section 3(5) of Terrorist and Disruptive Activities (Prevention) Act, 1987, which is pari materia to Section 10(a)(i) of UAPA Act, 1967 and reading down the said provision to the extent by observing that mere membership of a banned organization will not make a person guilty unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence and that mere membership of a banned organization will not incriminate a person is concerned, it is vehemently submitted by Shri Tushar Mehta, learned Solicitor General that as such in absence of challenge to the relevant provisions, more particularly Section 10(a)(i) of the UAPA, 1967, such a reading down was not permissible. It is submitted that as such in the case of Raneef (supra), which has been subsequently followed in the cases of Arup Bhuyan (supra) and Indra Das v.

State of Assam, (2011) 3 SCC 380, this Court was considering the bail application and the constitutional validity of Section 10(a)(i) of the UAPA Act was not under challenge. 5. 1 Learned Solicitor General has relied upon the decision of this Court in the case of Subramanian Swamy & Others v. Raju through Member, Juvenile Justice Board & Another, reported in (2014) 8 SCC 390 on as to when the power of reading down of a provision can be exercised. Reliance is placed on paragraphs 59 to 62 of the said judgment. It is submitted that therefore when language in Section 10(a)(i) of the UAPA Act is very clear and unambiguous and looking to the object and purpose for which UAPA Act was enacted and taking into consideration the plain and literal meaning of a statute and in the absence of any constitutional challenge, it was impermissible for this Court to read down the statute.

It is submitted that there was no occasion to "read down" Section 10 of the UAPA Act in absence of a constitutional challenge. 6. Shri Vinay Navare, learned Senior Counsel appearing on behalf of the State of Assam, while adopting the submissions made by Shri Tushar Mehta, learned Solicitor General, has in addition submitted that under the scheme of a statute (UAPA) every effort is made to ensure that every member of the association is made aware of the fact that such association is declared as unlawful. 6. 1 It is further submitted that the language employed in Section 10 is very significant in the present context. It provides that "where an association is declared as unlawful by notification under Section 3 which has become effective under sub-section (3) of that Section. " It is submitted that therefore it is only after notification under Section 3 has become effective under sub-section (3), that the latter part of that Section applies.

It is submitted that language of Section 10(a)(i) is very cautiously worded - 'who is and continues to be a member of such association'. It is submitted that so if a person 'has been' a member but does not 'continue to be' a member after declaration, that does not attract mischief under Section 10. The intention in the Section is that not only is he a member on the day when the association is declared unlawful but he continues to be a member. It is submitted that therefore a person who is a member or wishes to be a member is well aware of the fact that such an association is declared unlawful and if he still wishes to continue being a part of such an unlawful association it shows a clear and conscious intention on his part and Section 10 of the UAPA Act penalises this act of mere membership with such unlawful association. 6.

2 It is further submitted that Section 38 of the UAPA Act, 1967 provides that a person who associates himself or professes to be associated with a terrorist organization with intention to further its activities commits an offence relating to the membership of a terrorist organization. It is submitted that therefore it is seen that in case of a terrorist organization mere membership is not sufficient but there has to be an act with intention to further the activities of the terrorist organization which is not the case under Section 10 with an unlawful association. 6. 3 It is submitted that there is a clear distinction between the provisions under Section 10 which punish mere membership of an unlawful association and Section 38 which do not punish passive membership with terrorist organization.

It is submitted that the reason is that Section 10 has already undergone the rigours of Section 3 but Section 38 has not undergone the rigours of Section 3 and it is a delegated legislation involving inclusion of a name of an organisation in the schedule. It is submitted that even if you are a member, it gives an opportunity in Section 38 that the ARUP BHUYAN v. STATE OF ASSAM & ANR. [M. R. SHAH, J. ] terrorist organization was not a terrorist organization at the time when you became a member and he is not taking part. 6. 4 It is submitted that the United Liberation Front of Assam (ULFA) has been declared to be an unlawful association from time to time.

Making above submissions and relying upon the above decisions, Shri Tushar Mehta, learned Solicitor General and Shri Vinay Navare, learned Senior Counsel appearing on behalf of the State of Assam have prayed to hold that the observations/decisions of this Court in the cases of Raneef (supra), Arup Bhuyan (supra) and Indra Das (supra) taking the view that mere membership of a banned organization will not incriminate a person unless he resorts to violence or incites people to violence or does an act intending to create disorder or disturbance of public peace by resort to violence is not a good law, in view of the specific provision under Section 10(a)(i) of the UAPA Act, 1967, the constitutionality of which is not under challenge and even otherwise on merits also looking to the object and purpose of enacting the UAPA Act, 1967. 7.

Shri Sanjay Parikh, learned Senior Counsel appearing for the applicant - People's Union for Democratic Rights has heavily relied upon the subsequent decision of this Court in the case of Indra Das (supra). It is submitted that in the said decision, after following the decisions of this Court in the cases of Raneef (supra) and Arup Bhuyan (supra), this Court has rightly interpreted Section 3(5) of TADA Act, 1987 and Section 10(a)(i) of the UAPA Act, 1967 which is in consonance with Articles 14, 19 and 21 of the Constitution. It is submitted that in the case of Indra Das (supra), this Court has observed and held as under: "a. statutory provisions cannot be read in isolation, but have to be read in consonance with the fundamental rights guaranteed by our Constitution. b. The Constitution is the highest law of the land and no statute can violate it.

If there is a statute which appears to violate it we can either declare it unconstitutional or we can read it down to make it constitutional c. Had there been no Constitution having fundamental rights in it then of course a plain and literal meaning could be given to Section 3(5) of TADA or Section 10 of the Unlawful Activities (Prevention) Act. But since there is a Constitution in our country providing for democracy and fundamental rights we cannot give these statutory provisions such a meaning as that would make them unconstitutional. " 7. 1 It is submitted that in the case of Indra Das (supra), this Court has interpreted the relevant provisions of TADA and UAPA to bring them in conformity with the Constitution. 7. 2 It is further submitted that this Court has on several occasions interpreted provisions to bring them in consonance with the Constitution and even by reading down to save the provisions from unconstitutionality.

It is submitted that in the case of People's Union for Civil Liberties v. Union of India, (2004) 9 SCC 580 (paragraphs 48 & 49), this Court has read "mens rea" into the statute to save it from unconstitutionality. 7. 3 It is submitted that in the case of State of Gujarat v. Shyamlal Mohanlal Choksi, 1965 (2) SCR 457, this Court read down Section 94 of the Cr. P. C. to exclude persons accused from its ambit. It is submitted that Shyamlal Mohanlal Choksi (supra) was a special leave petition from a High Court decision and the Union of India was not a party to those proceedings. 7. 4 On the submission made on behalf of the Union of India that without hearing the Union of India, this Court ought not to have and/or could not have read down Section 10(a)(i) of the UAPA Act, 1967 or Section 3(5) of TADA Act, 1987, Shri Sanjay Parikh, learned Senior Counsel has relied upon the decision of this Court in the case of Sanjeev Coke Manufacturing Company v.

M/s Bharat Cooking Coal Limited, reported in (1983) 1 SCC 147 (paragraph 25). It is submitted that in the said decision, it is observed and held by this Court that "no one may speak for the Parliament and Parliament is never before the Court. " It is further observed that "After Parliament has said what it intends to say, only the Court may say what the Parliament meant to say, none else. " It is further observed that "once a statute leaves Parliament House, the Court's is the only authentic voice which may echo (interpret) the Parliament and the Court will do the same with reference to the language of the statute and other permissible aids. " It is submitted that while reading down Section 10(a)(i) of the UAPA Act and Section 3(5) of the TADA Act, this Court has interpreted the statutory provisions in light of Articles 14, 19 and 21 of the Constitution. It is submitted that ARUP BHUYAN v. STATE OF ASSAM & ANR. [M. R. SHAH, J.

] judgments under reference correctly hold that "mere membership of a banned organization will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence. " 7. 5 Now so far as the submission made by Shri Tushar Mehta, learned Solicitor General that while deciding Raneef (supra) and Arup Bhuyan (supra), this court ought not to have relied upon the US Supreme Court judgments, Shri Sanjay Parikh, learned Senior Counsel has submitted that in the case of Shreya Singhal v. Union of India, (2015) 5 SCC 1, this Court has held that the legal position in India is not different. He has relied upon the observations made in paragraph 41 made in the case of Sherya Singhal (supra). 7. 6 It is submitted that the decision of this Court in the case of Shreya Singhal (supra) has been recently relied upon and considered by one of the Hon'ble Judge of the Constitution Bench in the case of Kaushal Kishor v.

State of Uttar Pradesh and Others, 2023 SCC OnLine SC 6, while concurring on the question that the restrictions under Article 19(2) are exhaustive. 7. 7 It is further submitted by Shri Sanjay Parikh, learned Senior Counsel appearing on behalf of the applicant that Shreya Singhal (supra) is the culmination of an unbroken line of Indian precedent stipulating that speech or association can be prevented or punished only if, • Speech or association is 'intended' or has the 'tendency' to disturb 'public order', 'sovereignty and integrity of India', 'security of the state', or one of the other permitted ground of restrictions under Article 19; and • The connection between the speech or association and the 'intended' or likely effect on 'public order', 'sovereignty and integrity of India' or 'security of the state' is "proximate" not "far- fetched, hypothetical or problematical or too remote in the chain of its relation. " 7.

8 Shri Parikh, learned Senior Counsel has relied upon the observations made by the Federal Court in the case of Niharendu Dutt Majumdar v. The King Emperor 1942 F. C. R. 38 taking the view that "the acts or words complained of must, either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency. " It is submitted that the said decision has been approved and adopted by this Court in the case of Kedar Nath v. State of Bihar, AIR 1962 SC 955. He has relied upon the observations made in paragraph 26 of Kedar Nath (supra). 7. 9 It is further submitted that in the case of State of Bihar v. Shailabala Devi, AIR 1952 SC 329, this Court asserted that it was not sufficient for law restricting freedom of speech and expression to be under one of the permitted heads of restriction enumerated under Article 19(2), but must also have a proximate link to it.

The Patna High Court had found that a pamphlet whose central theme was "to bring about a bloody revolution and change completely the present order of things", fell foul of a provision targeting "words or signs or visible representations which incite, or encourage, or tend to incite to or encourage the commission of any offence of murder or any cognizable offence involving violence. " It is submitted that this Court however found that for rhetoric of the kind used in the pamphlet to be justifiably restricted, the State would have to establish that it was addressed to an excited mob or other such exceptional circumstance. 7. 10 Shri Sanjay Parikh, learned Senior Counsel has also heavily relied upon the observations made in paragraph 45 in the case of S. Rangarajan v. P. Jagjivan Ram and others, (1989) 2 SCC 574, which read as under: "45. .... There does indeed have to be a compromise between the interest of freedom of expression and special interests.

But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far- fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a powder keg". 7. 11 It is further submitted that in the case of O. K. Ghosh v. E. X. Joseph, AIR 1963 812, this Court was considering the scope of the term 'public order' in Clause (4) of Article 19, that allows for reasonable restrictions on the right to Freedom of Association. It is submitted that ARUP BHUYAN v. STATE OF ASSAM & ANR. [M. R. SHAH, J.

] this Court held that "the words 'public order' occurs even in clause (2), which refers, inter alia, to security of the State and public order. There can be no doubt that the said words must have the same meaning in both clauses (2) and (4). " It is further observed that "... a restriction can be said to be in the interests of public order only if the connection between the restriction and the public order is proximate and direct. Indirect or far-fetched or unreal connection between the restriction and public order would not fall within the purview of the expression "in the interests of public order. " 7. 12 It is further submitted that in the case of Balwant Singh v. State of Punjab, (1995) 3 SCC 214, it is observed and held by this Court that only where the written or spoken words have the tendency or intention of creating public disorder or disturbance of law and order or affect public tranquility, that the law needs to step in to prevent such an activity.

It is submitted that it is further observed that the intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153-A of the IPC and the prosecution has to prove the existence of mens rea in order to succeed. 7. 13 It is further submitted that in the case of Kartar Singh v. State of Punjab, (1994) 3 SCC 569, this Court held that: i) mens rea is an essential ingredient of a crime; ii)vague provisions can implicate innocent persons in offences; and iii)mens rea must be read into Section 2(i)(a) of TADA It is submitted that the reasoning in Kartar Singh (supra) will also apply to Section 10(a)(i) of the UAPA Act, 1967. It is further submitted that in fact, even at the Constituent Assembly debates, Dr. B. R. Ambedkar clarified that "... it is wrong to say that fundamental rights in America are absolute. The difference between the position under the American Constitution and the Draft Constitution is one of form and not of substance.

That the fundamental rights in America are not absolute rights is beyond dispute. In support of every exception to the fundamental rights set out in the Draft Constitution, one can refer to at least one judgment of the United States Supreme Court. What the Draft Constitution has done is that instead of formulating fundamental rights in absolute terms and depending upon our Supreme Court to come to the rescue of Parliament by inventing the doctrine of police power, it permits the State directly to impose limitations upon the fundamental rights. There is really no difference in the result. What one does directly the other does indirectly. In both cases, the fundamental rights are not absolute. " 7. 14 It is submitted that the submissions made on behalf of the Union of India by the Solicitor General are mostly on non-applicability of American cases and they do not deal with the applicability of the principle evolved in American cases and their acceptance by the Indian Supreme Court. 8.

It is further submitted that even otherwise the provisions of Section 10(a)(i) of the UAPA Act and Section 3(5) of the TADA Act are vague and overbroad and will have a chilling effect and therefore this Court in the aforesaid three decisions have rightly read down the said provisions to bring them in consonance with Articles 14, 19 and 21 of the Constitution of India. 8. 1 It is further submitted by Shri Sanjay Parikh, learned Senior Counsel that in the recent decision of this Court in the case of Thawaha Fasal v. Union of India, 2021 SCC OnLine SC 1000, this Court has observed and held that "mere association with a terrorist organization is not sufficient to attract Section 38 and mere support given to a terrorist organization is not sufficient to attract Section 39. " It is submitted that it is further observed that "association and the support have to be with intention of furthering the activities of a terrorist organization. " 8.

2 It is further submitted that even if there can be restrictions under Article 19(2), in that case also, the restrictions should be reasonable and shall stood the test of reasonableness or proportionality. Making above submissions and relying upon the aforesaid decisions, it is prayed to answer the reference accordingly and not to disturb the view taken by this Court in the cases of Raneef (supra); Arup Bhuyan (supra) and Indra Das (supra). 9. In rejoinder to the submissions made by Shri Sanjay Parikh, learned Senior Counsel appearing on behalf of the applicant/intervener Shri Tushar Mehta, learned Solicitor General has submitted that so far as ARUP BHUYAN v. STATE OF ASSAM & ANR. [M. R. SHAH, J.

] the submissions made by Shri Sanjay Parikh, learned Senior Counsel on reasonability and proportionality, it is submitted that a detailed adversarial judicial process prior to declaration of organization as banned organization is required to be undertaken under Sections 3 and 4 of the UAPA, 1967. It is submitted that the said judicial adversarial process ensures inbuilt reasonability and proportionality and ensures that such provisions are just, fair and reasonable. 9. 1 Now so far as the submission made by Shri Parikh, learned senior counsel on mens rea element and reliance placed upon the judgments in criminal law which have held mens rea an essential ingredient of crime, it is submitted by Shri Mehta, learned Solicitor General that the question of mens rea may depend on the facts and circumstances of each case and would have to be adjudicated during trial.

It is submitted that the judgments in Raneef (supra), Arup Bhuyan (supra) and Indra Das (supra) as such do not deal with the concept of mens rea and neither do the judgments in America on which the reliance has been placed. 9. 2 Now so far as the reliance placed upon the decisions relating to IPC and more particularly the decisions of this Court in the case of Kedar Nath Singh (supra), Balwant Singh (supra) and Bidal (supra), it is submitted that the said reliance may not be appropriate as the offences under the IPC are standalone offences and are applied for a far wider canvass than the offence of membership of banned organization under the UAPA and TADA. It is submitted that the banning of an organization under the UAPA takes place after a detailed adversarial judicial process which is given wider publicity, thereby ensuring reasonableness, limited application and availability of information with regard to the inherently legal nature of such banned organization.

It is submitted that the same is absent in IPC offences which can be applied by any police officer investigating any offence, without there being the presence of any banned organization or the procedure preceding the banning of such organization. It is submitted that therefore there is vast differences between UAPA and IPC offences. It is submitted that in the present case the Parliament in its wisdom and taking into consideration the sovereignty of India has thought it fit to enact the UAPA and provide under Section 10(a)(i) that mere member of the banned organization itself is an offence. 9. 3 Now so far as the submission of Shri Praikh, learned Senior Counsel on vagueness and possibility of misuse of Section 10(a)(i), it is submitted that as observed and held by this Court in catena of decisions vagueness and possibility of misuse cannot be a ground for reading down a declaration of unconstitutionality. It is submitted that possibility of abuse/ misuse of a law would not