'Whether Mere Membership Of An 'Unlawful Association' Is Sufficient To Constitute An Offence Under UAPA?' Supreme Court Reserves Judgement
LIVELAW NEWS NETWORK
9 Feb 2023 2:14 PM IST
The Supreme Court on Thursday reserved its judgment on whether mere membership of an 'unlawful association' is sufficient to constitute an offence under the UAPA, or some overt act, over and above the membership, is a prerequisite to attract the penal provisions of the ActThe bench of Justices MR Shah, CT Ravikumar and Sanjay Karol was hearing a reference made in 2014 by the two-judge bench...
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The Supreme Court on Thursday reserved its judgment on whether mere membership of an 'unlawful association' is sufficient to constitute an offence under the UAPA, or some overt act, over and above the membership, is a prerequisite to attract the penal provisions of the Act
The bench of Justices MR Shah, CT Ravikumar and Sanjay Karol was hearing a reference made in 2014 by the two-judge bench of Justices Dipak Misra and A. M. Sapre in view of the judgments in the matters of Arup Bhuyan, Sri Indra Das and Raneef. In Raneef (2011), a two-judge bench of the Supreme Court held that mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incites people to violence or does an act intended to create disorder or disturbance of public peace by resort to violence. In Bhuyan's case (2011), the same 2-judge bench of the Supreme Court reiterated this view in context of Section 3(5) of the TADA. In Indra Das (2011), this view was again reinforced by the 2-judge bench. In making the reference to a larger bench, the bench of Justices Misra and Sapre in 2014 was told by the Union of India that in Arup Bhuyan, the Court has read down the TADA provision to the detriment of the interest of the Union of India when it was not a party before it, and moreover, when the constitutional
validity was not called in question; that in Arup Bhuyan’s case as well as in Sri Indra Das, the two-Judge Bench has referred to many authorities of Supreme Court of United States of America; that the Court has erroneously referred to its earlier judgment in Raneef’s case wherein the basic fact was different; and relying upon section 10 of the UAPA, it was contended by the UOI that if the view expressed in Arup Bhuyan and Sri Indra Das is allowed to remain in the field, various laws in other enactments would be affected. The bench of Justices Misra and Sapre had then ordered that "Regard being had to the important issue raised by (....) we think it appropriate that the matter should be considered by a larger Bench"
On Wednesday, Senior Advocate Sanjay Parikh, for an NGO, had advanced that "the main point raised by the Union of India is that, in the absence of Union of India being party, it was not correct for the Supreme Court in Arup Bhuyan to read down a provision". "I am saying that the observations may be correct but the method that they have followed is not the correct method. Your Lordships may say that we may agree with the view that has been given in all the three judgments, but the method by which it has been given, which will be that you hear the affected parties, hear the other persons also because the validity is in question, and that has not been done and that is why we don’t approve of this particular thing and we want that this exercise should be done by the Court in a proper jurisdiction....But saying that you relied on American judgment may not be correct. Human rights, civil liberties have always been part of articles 19 and 21", Mr. Parikh had sought to submit
On Thursday, Justice Shah observed, "The (Union of India) executives are required to be given an opportunity to put forward their case that this is what the Parliament wanted to say. That is missing. This Court has not held that 'No, no, no, no, Union of India executives are not required to be heard at all"
Mr. Parikh: "Like your lordships are hearing me for the purpose because there is somebody else, and to really understand the provisions"Justice Shah: "Correct. Some representation must be there. There is the supremacy of the courts after the Parliament has enacted the law. The Parliament will never come after that but the Parliament will certainly speak through the Executive who can defend the legislation....Whatever is said on affidavits, that cannot bind the courts. Ultimately, it is the prerogative of the court to declare it as unconstitutional or constitutional....(But) it is the prerogative and the right of the Union government to protect the laws from being declared unconstitutional. Some opportunity has to be given to them"
Justice Shah: "They can point out Article 19(4) (in the context that SG Tushar Mehta on Wednesday explained the UAPA Act penalising the mere membership of an unlawful association as a reasonable restriction under Article 19(4) on the right to form associations and unions in the interest of the sovereignty and integrity of the nation)....They can point out the object and purpose of the Act"
Justice Shah: "That is why your endeavour that the Union of India was not required to be heard....anyway, proceed further...."
Justice Ravikumar: "They are placing before the court only their understanding"
Justice Shah: "But they have to be given the opportunity to place their understanding before the court"
Mr. Parikh: "I think when the court is interpreting it in the light of the Constitution, the exercise becomes slightly different....Further, I wish to point out that there are 26 cases where Arup Bhuyan, Indra Das and Raneef have been followed by the High Courts"
Justice Shah: "But what is followed is Arup Bhuyan which is in challenge before this court! High Courts are bound by the law laid down by this court unless that law is upset by the Supreme Court itself. Therefore, merely because the High Courts have followed the decisions, that cannot be a ground. That may be so, in a given case in a taxation matter, that consistently a particular view has been taken and followed. We can’t upset it. If we upset it, there will be chaos in the industry. So recently we negatived the case on behalf of the government. They wanted to revisit some view taken in 2015 which was followed subsequently by this court as well as the High Courts and tribunals. So we said 'No, no, no". The judicial proprietary and discipline also requires that"
Mr. Parikh: "I’m trying to say whether this technical aspect can be forgotten because this view has been accepted in several judgments"
Justice Shah: "They (the HCs) have no other option but to accept the view of this court....anyway...."
On Wednesday, Mr. Parikh had also urged, "Ultimately, the question of mens rea is an important element. You cannot incriminate a person, sentence him or punish him until you come to the conclusion that he has done something which is really an offence. Without mens rea, you cannot make a particular offence also. Without mens rea, the offence itself is struck down as being violative of article 14 and 21. Are you able to establish mens rea? You are not able to establish mens rea- if somebody is a member, then he is a member. Not only that he continues to be a member, but that he did this particular thing, that is what you have to show. Either he resorted to violence, incited people to violence, did an act intended to create disorder- this is necessary". Justice Ravikumar had asked Mr. Parikh, "Are you not supposed to look at the relevant Act and what exactly are the ingredients to constitute that offence which has been made punishable?....Are you saying that putting a reasonable restriction would be unconstitutional?". Mr. Parikh had replied, "No, no"
Justice Shah had then paraphrased his submission, saying, "Merely becoming a member, without doing anything, if it is an offence, then according to you, it will not fall within the definition of reasonable restriction? Okay, we got your point"On Thursday, Mr. Parikh sought to underline that there must be a direct nexus between a person being a member and its affecting the sovereignty and integrity of the State. "Proximate cause has to be shown", he submitted. Justice Shah had remarked, "The right of the Parliament is not absolute"
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