'Whether Mere Membership Of An 'Unlawful Association' Is Sufficient To Constitute An Offence Under The UAPA?' SC Commenced Hearing On Reference
LIVELAW NEWS NETWORK
8 Feb 2023 10:18 PM IST
The Supreme Court on Wednesday commenced hearing 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 Wednesday commenced hearing 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 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"
SG: "10(a)(i) says 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 shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine. In (a), it is only two years. Now in 10(b), some overt act apart from being a member is needed. Now you are doing something additional, something more. The result is graver. So more punishment. 10(b)(i) says 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. 10(b)(ii) says 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. Suppose I am a member. I am found with explosives. But I didn't use the explosives. Or before I can use, I am nabbed. Or I use the explosives but it doesn’t result in any loss of life. So that would fall under 'in any other case'- any case in which there is any result other than death"Justice Shah: "The punishment for 10(a) is different- two years. Punishment for 10(b) which is with respect to possession of firearms, collecting money or some overt act apart from being a member, over and above the membership, if such act causes death, is life sentence or death. In other cases, it is 5 years?"
SG: "It says it shall not be less than five years but may extend to life. For example, I am a member, I acquire money also, I acquire explosives also, I use the explosives, it results in injury to people, but not death. I won’t fall under (b)(i) but the hon'ble court would have the leeway or jurisdiction to give me up to life imprisonment and not less than that"
SG: "Now it is our case, our official stand that PFI (Popular Front of India) is a new avatar of SIMI (Students Islamic Movement of India). There is a notification also which has come into effect (declaring it as a banned organisation). Notification in some cases comes into effect after the tribunal approves it, but in some cases, the government has the power to apply it immediately, subject to it being approved.
SG: "Now it is our case, our official stand that PFI (Popular Front of India) is a new avatar of SIMI (Students Islamic Movement of India). There is a notification also which has come into effect (declaring it as a banned organisation). Notification in some cases comes into effect after the tribunal approves it, but in some cases, the government has the power to apply it immediately, subject to it being approved.
For example, Lashkar-e-Taiba is a banned organisation. I cannot say that I am only a member of Lashkar-e-Taiba. You have to go through the reasons for why it was banned. You can’t say that you are just a member. That is the heart and soul of 10(a)(i). If I invite the leader of a terrorist gang or a banned organisation and if I say that I just invited him for a dinner, there was no intention to conspire or collect money, I cannot say that though I am a member, I am a sympathiser, I would not be guilty. This is not a punitive, but a preventive, deterrent provision. That even if you become a member, you will be punished. There are some statutory provisions which are deterrent in nature, simultaneously penalising. You need not do anything more than that. You need not sympathise when the nation declares an organisation as an unlawful or a terrorist organisation. The Intent is not to criminalise only but to prevent also, that don’t even start being a Member"
Justice Shah: "Whenever any organisation is banned and the notification is issued, certain procedures are followed?"
SG: "Yes. I cannot say that because I don’t like this organisation, it is a banned organisation. There is a procedure prescribed which has to be confirmed by a tribunal which is decided upon by a sitting judge of a High Court"
Justice Shah: "Whenever any organisation is banned and the notification is issued, certain procedures are followed?"
SG: "Yes. I cannot say that because I don’t like this organisation, it is a banned organisation. There is a procedure prescribed which has to be confirmed by a tribunal which is decided upon by a sitting judge of a High Court"
SG: "The Parliament is conscious that some organisations may not have the kind of a structural set-up like a party or an NGO, I am not saying NGOs are unlawful, they might be having some part, some membership, some body, some register, some provisions as to how the internal affairs are being governed, that can be an organisation. For example, PFI has no organisational structure known to law, or known to public, it is always secret, they have secret sleeper cells. Therefore, the Parliament very consciously broadens the definition of 'Association'- Association means any combination or body of individuals, whether they are registered, whether they are in a structured form, whether they have a methodically organised manner of working is irrelevant. 'Association' means any combination or body of individuals.
I cannot say that I am not registered and that only 5000 people are believing in this ideology and we are working and therefore, I am not an association. To avoid that mischief, such a definition has been framed"
Justice Shah: "How would you construe that he is a member of the PFI or a banned organisation?"
SG: "There would be several factors, depending on the facts of each case. Suppose I am raided and I am found to be in possession of 500 pamphlets that PFI is organising a seminar, then obviously in a matter of this nature, you won’t have a membership register like a company incorporated has"
Justice Shah: "It depends on the facts of each case? Once it is established that he is a member of PFI or a banned organisation, then the consequences shall follow. Whether he was associated or whether he is a member is a question of evidence. That is a question of trial"
SG: "He might not have ever done anything. But he would be guilty under 10(a)(i) because he is a member. SIMI earlier used to give membership cards. Then it stopped. PFI does not have any membership cards. It is a matter of investigation"
SG: "The UAPA defines 'cession of a part of the territory of India' as including admission of the claim of any foreign country to any such part. Suppose I say that Kashmir is a part of Pakistan, I will be under 2(1)(b). I need not preach, if I agree to the stand of a foreign country that a part of my nation is a part of their nation, then this definition comes in....Wherever an overt act is required to be committed other than being part of a gang or a member, wherever the legislature has contemplated punishing only for an overt act other than this, it has provided so. If somebody from a group of individuals says that you decide whether Jammu and Kashmir or for that matter Arunachal Pradesh or any other part should remain a part of India or not, that is defined as 'cessation' because it is an unlawful activity....The Act deals with bodies which cannot by their very nature be incorporated or have any form of registration. Even if five people gather together to perform one terrorist act and I am not a part of any systematic terrorist activity, I am not a part of CPI (Maoist) or Lashkar-e-Taiba, but I have done something with those five people, that will also be covered- the statute is very widely worded to include any act against sovereignty of nation. There are some identified organisations in the First Schedule of the Act which are defined as 'terrorist organisation'. The first in the list is Babbar Khalsa, the fifth is Lashkar-e-Taiba. It is declared to be a terrorist organisation. To come out of this, if I preach and profess the same thing that Lashkar-e-Taiba used to do but I say that I don’t do it under the banner of Lashkar-e-Taiba and so I won’t be a terrorist organisation, but the law is to encompass even that activity and says that I would be a 'terrorist gang'. 'Terrorist gang' is any association other than terrorist organisation, whether systematic or otherwise, which is concerned with or involved in terrorist act....The Act says that '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. 'Or otherwise'- being a member is an unlawful activity under section 10"
I cannot say that I am not registered and that only 5000 people are believing in this ideology and we are working and therefore, I am not an association. To avoid that mischief, such a definition has been framed"
Justice Shah: "How would you construe that he is a member of the PFI or a banned organisation?"
SG: "There would be several factors, depending on the facts of each case. Suppose I am raided and I am found to be in possession of 500 pamphlets that PFI is organising a seminar, then obviously in a matter of this nature, you won’t have a membership register like a company incorporated has"
Justice Shah: "It depends on the facts of each case? Once it is established that he is a member of PFI or a banned organisation, then the consequences shall follow. Whether he was associated or whether he is a member is a question of evidence. That is a question of trial"
SG: "He might not have ever done anything. But he would be guilty under 10(a)(i) because he is a member. SIMI earlier used to give membership cards. Then it stopped. PFI does not have any membership cards. It is a matter of investigation"
SG: "The UAPA defines 'cession of a part of the territory of India' as including admission of the claim of any foreign country to any such part. Suppose I say that Kashmir is a part of Pakistan, I will be under 2(1)(b). I need not preach, if I agree to the stand of a foreign country that a part of my nation is a part of their nation, then this definition comes in....Wherever an overt act is required to be committed other than being part of a gang or a member, wherever the legislature has contemplated punishing only for an overt act other than this, it has provided so. If somebody from a group of individuals says that you decide whether Jammu and Kashmir or for that matter Arunachal Pradesh or any other part should remain a part of India or not, that is defined as 'cessation' because it is an unlawful activity....The Act deals with bodies which cannot by their very nature be incorporated or have any form of registration. Even if five people gather together to perform one terrorist act and I am not a part of any systematic terrorist activity, I am not a part of CPI (Maoist) or Lashkar-e-Taiba, but I have done something with those five people, that will also be covered- the statute is very widely worded to include any act against sovereignty of nation. There are some identified organisations in the First Schedule of the Act which are defined as 'terrorist organisation'. The first in the list is Babbar Khalsa, the fifth is Lashkar-e-Taiba. It is declared to be a terrorist organisation. To come out of this, if I preach and profess the same thing that Lashkar-e-Taiba used to do but I say that I don’t do it under the banner of Lashkar-e-Taiba and so I won’t be a terrorist organisation, but the law is to encompass even that activity and says that I would be a 'terrorist gang'. 'Terrorist gang' is any association other than terrorist organisation, whether systematic or otherwise, which is concerned with or involved in terrorist act....The Act says that '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. 'Or otherwise'- being a member is an unlawful activity under section 10"
SG: "Once the government of India finds and it is confirmed by the tribunal that yes, this is banned, I cannot be a member of that organisation irrespective of whether I do anything further or not. It is not necessary that all members have to do an 'unlawful activity', 'unlawful activity' is necessary for the purpose of coming to the conclusion that it is an 'unlawful association'. I cannot be a member, I cannot even do anything which remotely suggests that I am a member. If I have a manifesto of CPI (Maoist), then I will have to destroy it because the police can presume that I cannot have hundred copies of the manifesto of a banned organisation, because the police would presume that I am a member because this organisation would not have a membership card or a register like companies which record in the register of companies as to whether I am a member or not"
Justice Ravikumar: "So membership is not to be understood in the general parlance or in company law meaning?"
SG: "Any activity which can satisfy the investigating agency that you are a member, subject to your being convicted by the competent court, then he is guilty of 10(a)(i)"
Justice Shah: "If it is found on evidence, subject to trial, that he is associated and he is member of the banned organisation, then consequences will follow. Because the Parliament and legislature have thought it fit to convict a person associated with unlawful associations"
SG: "Parliament considers mere membership is also enough because we not only want to penalise you, we want to prevent people from being a member, otherwise the very purpose is lost, the very legislative intent is defeated, that alright I am only a member, I am only a sympathiser"
Justice Shah: "Are you having the debate also when section 10 was enacted? You try to get it, The debate in Parliament. Some discussion must have taken place"
Justice Ravikumar: "How will you find out that somebody is a member? You said that unlike other Incorporated associations, where ofcourse there is a membership issued by the organisation, here, Can we just presume or some activity should be there?"
SG: "It is a pertinent question. The answer is that it would depend on the facts of the case. I will just illustrate"
Bench: "What are the checks and balances provided in the statute, protecting civil rights and liberties of the citizens?"
SG: 'We are dealing with a penal statute, so some civil liberties will be affected"
Bench: "Till and so long it is within the framework of the Constitution, Article 19...."
SG: "Any penal provision, whether it is Indian penal code or PMLA, has some element of potential abuse of it affecting the civil liberties. It would ultimately result in curtailment of civil liberties. The checks and balances are inbuilt in Cr. P. C. itself. Kindly examine this illustration- I am a scholar. I am writing a book on Maoism in India. From my laptop, the Maoist manifesto is found. It is possible that there is an abuse of the process and it is said that you are a member of the Maoist organisation. Then he would have the procedure under Cr. P. C. which would be immediately discharged. Suppose I have in my possession 500 copies of the manifesto, then the investigating agency would be justified in that you know this is a banned organisation, you have the Maoist manifesto 500 copies. Another example- suppose some Xerox copy machine shop is raided and some 1000 copies of a pamphlet which is to be distributed is found and that man says that this pamphlet is in Urdu and I was only given to make 1000 copies. He may be in possession of something which is prohibited but he may not be involved"
Justice Shah: "That is to be considered at the time of trial. At the present, we have to consider only one thing- the intentions of the Parliament coupled with the preamble and the statement and object of this UAPA act. Preamble is to prevent unlawful activities. Unlawful activities is defined. So once an organisation is banned, to achieve the object and purpose of prevention of unlawful activity, and a person is found to be associated or member of such a banned organisation, because the notification is to be published in the Gazette and given wide publicity, the Person should know that the association with which he is associating is banned. The Parliament in its wisdom, to achieve this object and purpose, has made being a member itself an offence, then what? There is no question of reading down the provision, unless it is challenged. We Are considering the observations made (in the cases of Arup Bhuyan, Indra Das and Raneef). Otherwise, what will happen on the basis of such an observation where the statute is not under challenge? It will have a direct bearing on the matters pending in which constitutional validity is under challenge because now it is already read down. Once it is already read down, what is to be done by the court which is considering the constitutional validity?"
SG: "I am not saying your lordships should go into the constitutional validity....the two judge-bench said you must establish something more, in the absence of mens Rea, mere membership cannot be punished"
Justice Shah: "According to you, that is contrary to the scheme of the act?"
SG: "Yes. And to the intention of the legislature. The American bill of rights has a different background. Our Constitution has a different background. The jurisprudence in any country develops based on the societal values, based on the threats which the country has faced, based on several issues which are now generated from within the country. Merely relying on American judgments can never be...."
Justice Shah: (a in lighter vein) "Then we have to follow the American action also"
SG: "Now they have the McCarran Act which is much more tougher than the UAPA. They can go to Pakistan and kill Osama bin Laden in their land. Suppose we do that, my learned friend (Senior Advocate Sanjay Parikh, for an NGO on the opposite side) would shout for violation of human rights"
Justice Shah: (in a lighter vein) "When following their Jurisprudence on paper, we have to follow the action also"
SG: "Action also, and ground reality. America is acting as a general manager of the world. If there is problem in Afghanistan, they say that you sort it out, otherwise we will come, and then they send the Army. How are you concerned? It is our internal problem! They tried with us also in the past"
SG: "10(a)(i) says that A person who is and continues to be a member of such association shall be punished with imprisonment for a term which may extend to 2 years! No incitement to violence, no violence, no public order, inciting people nothing, that is all in (b). Mere membership punishable under (a). Membership coupled with something violent is in (b). And the court reads it in (a). Meaning thereby that mere membership is not criminalised or penalised. Meaning thereby that it is virtually declaring section 10(a)(i) to be non-Est, it is rewriting 10(a)(i) and setting it naught"
SG: "Why we cannot follow the jurisprudence of another country? We do not reveal names of daughters or girls who are victims of heinous crime like rape. In America, it is part of the bill of rights that the name can be declared to the media on the condition that they should get the name from an authorised source like from a police station or something else. This is the vast difference between the two jurisprudences. Mere blind reliance on this can never achieve the object"
Justice Ravikumar: "So membership is not to be understood in the general parlance or in company law meaning?"
SG: "Any activity which can satisfy the investigating agency that you are a member, subject to your being convicted by the competent court, then he is guilty of 10(a)(i)"
Justice Shah: "If it is found on evidence, subject to trial, that he is associated and he is member of the banned organisation, then consequences will follow. Because the Parliament and legislature have thought it fit to convict a person associated with unlawful associations"
SG: "Parliament considers mere membership is also enough because we not only want to penalise you, we want to prevent people from being a member, otherwise the very purpose is lost, the very legislative intent is defeated, that alright I am only a member, I am only a sympathiser"
Justice Shah: "Are you having the debate also when section 10 was enacted? You try to get it, The debate in Parliament. Some discussion must have taken place"
Justice Ravikumar: "How will you find out that somebody is a member? You said that unlike other Incorporated associations, where ofcourse there is a membership issued by the organisation, here, Can we just presume or some activity should be there?"
SG: "It is a pertinent question. The answer is that it would depend on the facts of the case. I will just illustrate"
Bench: "What are the checks and balances provided in the statute, protecting civil rights and liberties of the citizens?"
SG: 'We are dealing with a penal statute, so some civil liberties will be affected"
Bench: "Till and so long it is within the framework of the Constitution, Article 19...."
SG: "Any penal provision, whether it is Indian penal code or PMLA, has some element of potential abuse of it affecting the civil liberties. It would ultimately result in curtailment of civil liberties. The checks and balances are inbuilt in Cr. P. C. itself. Kindly examine this illustration- I am a scholar. I am writing a book on Maoism in India. From my laptop, the Maoist manifesto is found. It is possible that there is an abuse of the process and it is said that you are a member of the Maoist organisation. Then he would have the procedure under Cr. P. C. which would be immediately discharged. Suppose I have in my possession 500 copies of the manifesto, then the investigating agency would be justified in that you know this is a banned organisation, you have the Maoist manifesto 500 copies. Another example- suppose some Xerox copy machine shop is raided and some 1000 copies of a pamphlet which is to be distributed is found and that man says that this pamphlet is in Urdu and I was only given to make 1000 copies. He may be in possession of something which is prohibited but he may not be involved"
Justice Shah: "That is to be considered at the time of trial. At the present, we have to consider only one thing- the intentions of the Parliament coupled with the preamble and the statement and object of this UAPA act. Preamble is to prevent unlawful activities. Unlawful activities is defined. So once an organisation is banned, to achieve the object and purpose of prevention of unlawful activity, and a person is found to be associated or member of such a banned organisation, because the notification is to be published in the Gazette and given wide publicity, the Person should know that the association with which he is associating is banned. The Parliament in its wisdom, to achieve this object and purpose, has made being a member itself an offence, then what? There is no question of reading down the provision, unless it is challenged. We Are considering the observations made (in the cases of Arup Bhuyan, Indra Das and Raneef). Otherwise, what will happen on the basis of such an observation where the statute is not under challenge? It will have a direct bearing on the matters pending in which constitutional validity is under challenge because now it is already read down. Once it is already read down, what is to be done by the court which is considering the constitutional validity?"
SG: "I am not saying your lordships should go into the constitutional validity....the two judge-bench said you must establish something more, in the absence of mens Rea, mere membership cannot be punished"
Justice Shah: "According to you, that is contrary to the scheme of the act?"
SG: "Yes. And to the intention of the legislature. The American bill of rights has a different background. Our Constitution has a different background. The jurisprudence in any country develops based on the societal values, based on the threats which the country has faced, based on several issues which are now generated from within the country. Merely relying on American judgments can never be...."
Justice Shah: (a in lighter vein) "Then we have to follow the American action also"
SG: "Now they have the McCarran Act which is much more tougher than the UAPA. They can go to Pakistan and kill Osama bin Laden in their land. Suppose we do that, my learned friend (Senior Advocate Sanjay Parikh, for an NGO on the opposite side) would shout for violation of human rights"
Justice Shah: (in a lighter vein) "When following their Jurisprudence on paper, we have to follow the action also"
SG: "Action also, and ground reality. America is acting as a general manager of the world. If there is problem in Afghanistan, they say that you sort it out, otherwise we will come, and then they send the Army. How are you concerned? It is our internal problem! They tried with us also in the past"
SG: "10(a)(i) says that A person who is and continues to be a member of such association shall be punished with imprisonment for a term which may extend to 2 years! No incitement to violence, no violence, no public order, inciting people nothing, that is all in (b). Mere membership punishable under (a). Membership coupled with something violent is in (b). And the court reads it in (a). Meaning thereby that mere membership is not criminalised or penalised. Meaning thereby that it is virtually declaring section 10(a)(i) to be non-Est, it is rewriting 10(a)(i) and setting it naught"
SG: "Why we cannot follow the jurisprudence of another country? We do not reveal names of daughters or girls who are victims of heinous crime like rape. In America, it is part of the bill of rights that the name can be declared to the media on the condition that they should get the name from an authorised source like from a police station or something else. This is the vast difference between the two jurisprudences. Mere blind reliance on this can never achieve the object"
SG: "When we talk about a restriction on the right to form organisations and say that this is a fundamental right under article 19, we have to read 19(4) which says that Parliament by Constitution is permitted to make a law in the interest of sovereignty and integrity of the country. By one brush, it is not possible to say that it violates 19 and 21 if mere membership is penalised. It is penalised in the interest of sovereignty of the nation. This is the fall off of the 16th constitutional amendment. The permissibility of a legislation to protect the sovereignty of the nation was introduced in the 16th amendment. This UAPA act came in 67. 16th amendment was a prelude to this act. I fail to understand, with profound respect, how is this unconstitutional? Without looking at article 19 sub-article (4), how can even tentative observations be made that this would otherwise be rendered unconstitutional? The country started facing the threat to the sovereignty of the country. That is why the 16th amendment came. The Committee for national integration and regionalism was appointed which recommended that article 19 of the Constitution be so amended that adequate powers become available for the preservation and maintenance of the integrity and sovereignty of the union. The committee was further of the view that every candidate for a member of the Parliament or state legislature and every aspirant to or incumbent of public office should pledge allegiance to uphold the Constitution and integrity and sovereignty of union and the format of oath in the third schedule of the Constitution should be suitably amended for the purpose. It is proposed to give effect to this recommendation and allow the State to make any law imposing reasonable restriction on the rights given by clauses (a), (b), (c) of article 19(1)"
SG: "In America, fundamental rights are absolute. We have constitutionally permitted reasonable restrictions. That is the difference between Indian jurisprudence and American jurisprudence. Suppose I go with a placard that 'support Maoist, support PFI', I’m not doing anything else and I say this is my freedom of expression, I am expressing my support, what is the reasonable restriction so far as my right to freedom of speech and expression in Article 19(1)(a) is concerned?Article 19(2) says that 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. This came under the 16th amendment that you cannot exercise your speech and expression if it affects the sovereignty and integrity. Please see 19(4) which relates to the right to form associations and unions- it says that in the interest of sovereignty and integrity of India, public order or morality, reasonable restrictions on the exercise of the rights conferred can be imposed. Right to form associations can be curtailed if we can show that the curtailment is by way of an enactment by the Parliament and in the interest of sovereignty and integrity of India. And the declaration of unlawful association, that is the process, it cannot be done at the ipse dixit of the executive, it is confirmed by the tribunal which is required to be headed by a sitting judge of the High Court. It can never be said to be violative of article 19 and 21
Justice Ravikumar: "It is a reasonable restriction"
Bench: "If we travel to 19, then we are going into the validity. Perhaps we may need not even travel that far"
SG: "Your Lordship may have to because the two judge bench says unless we read it down, it would violate 19 and 21"
Justice Shah: "You leave it to us"
SG: "From the inception, this court has consistently said don’t rely blindly on foreign judgments. A 7-judge bench of this court referred to these very American judgments, dealt with them and said we cannot rely upon those judgments. Even though these Bhuyan, Raneef and Indra Das judgments rely on the same american judgments
Justice Shah: "The same judgments?"
SG: "Yes, many of them. A constitution bench has observed that '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 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 Rulings are apt to be misapplied to our Constitution'....Thereafter, it is followed till 2012. It is not that the law has changed thereafter, it has remained consistent that the American bill of rights is absolute rights, no reasonable restrictions are there whereas we have a departure, we have specific provision permitting the Parliament to put these reasonable restrictions"
Bench: "If we travel to 19, then we are going into the validity. Perhaps we may need not even travel that far"
SG: "Your Lordship may have to because the two judge bench says unless we read it down, it would violate 19 and 21"
Justice Shah: "You leave it to us"
SG: "From the inception, this court has consistently said don’t rely blindly on foreign judgments. A 7-judge bench of this court referred to these very American judgments, dealt with them and said we cannot rely upon those judgments. Even though these Bhuyan, Raneef and Indra Das judgments rely on the same american judgments
Justice Shah: "The same judgments?"
SG: "Yes, many of them. A constitution bench has observed that '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 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 Rulings are apt to be misapplied to our Constitution'....Thereafter, it is followed till 2012. It is not that the law has changed thereafter, it has remained consistent that the American bill of rights is absolute rights, no reasonable restrictions are there whereas we have a departure, we have specific provision permitting the Parliament to put these reasonable restrictions"
Advocate for the state of Assam: "I am supporting the Union of India. Just please see section 3 clause 4 which provides for wide publication (of the notification declaring an association as unlawful)"
Justice Shah: "Because the person is supposed to know that this particular organisation is a banned organisation"
Advocate: "The tribunal examines the validity of the notification which is issued by the Union of India. Everybody, office bearers, even members can contest it. The section specifically provides it that the notification banning the organisation can be challenged by office bearers, members or any person associated with it"
Bench: "So these are the checks and balances?"
Advocate: "Yes. You don’t have to rely upon your leadership or your office bearers, if you are a member, you can challenge it"
Advocate: "Section 10 says that where an association is declared unlawful by notification under section 3 which has become effective under subsection (3) of that section. So only after notification under section 3 has become effective under subsection (3) that the latter part of that section applies. Language of section 10(1)(i) is very cautiously worded- 'who is and continues to be a member'. Like, we are concerned with the United liberation front of Assam- If you 'have been a member', that does not attract mischief under 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. The intention is very clear that your actions are such that not only on the given date but even after that you continue to be a member of that association"
Justice Shah: "The section has been rewritten in Indra Das. There is reading down by this court which is equivalent to re-writing 10(a)(i) in a case where the section was not under challenge"
Advocate: "The tribunal examines the validity of the notification which is issued by the Union of India. Everybody, office bearers, even members can contest it. The section specifically provides it that the notification banning the organisation can be challenged by office bearers, members or any person associated with it"
Bench: "So these are the checks and balances?"
Advocate: "Yes. You don’t have to rely upon your leadership or your office bearers, if you are a member, you can challenge it"
Advocate: "Section 10 says that where an association is declared unlawful by notification under section 3 which has become effective under subsection (3) of that section. So only after notification under section 3 has become effective under subsection (3) that the latter part of that section applies. Language of section 10(1)(i) is very cautiously worded- 'who is and continues to be a member'. Like, we are concerned with the United liberation front of Assam- If you 'have been a member', that does not attract mischief under 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. The intention is very clear that your actions are such that not only on the given date but even after that you continue to be a member of that association"
Justice Shah: "The section has been rewritten in Indra Das. There is reading down by this court which is equivalent to re-writing 10(a)(i) in a case where the section was not under challenge"
Justice Ravikumar: "Yes, to include that mere membership is not sufficient and some over act is also needed in 10(a)(i) only"
Advocate: "Further, the procedure for unlawful association is not applicable to terrorist organisation. Please look at the provision relating to membership under section 38. A person who associates himself or professes to be associated with a terrorist organisation with intention to further its activities commits an offence relating to the activities of a terrorist organisation. So it is not only membership, what is stated is 'who associates himself or professes to be associated with a terrorist organisation with intention to further its activities'. Why this difference in section 10 and section 38? Because 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. Even if you are a member, it gives you an opportunity in section 38 that the terrorist organisation was not a terrorist organisation at the time when you became a member and he is not taking part"
Advocate: "Further, the procedure for unlawful association is not applicable to terrorist organisation. Please look at the provision relating to membership under section 38. A person who associates himself or professes to be associated with a terrorist organisation with intention to further its activities commits an offence relating to the activities of a terrorist organisation. So it is not only membership, what is stated is 'who associates himself or professes to be associated with a terrorist organisation with intention to further its activities'. Why this difference in section 10 and section 38? Because 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. Even if you are a member, it gives you an opportunity in section 38 that the terrorist organisation was not a terrorist organisation at the time when you became a member and he is not taking part"
Justice Shah: "So far as distinction between the two is concerned- what is the purpose for declaring unlawful association? There is the procedure which is provided under section 3. So far as terrorist organisation is concerned, only adding in the schedule is enough. That is why this provision for terrorist organisations in section 38"
Advocate: "Since 198, there have been deteriorating conditions. Personally, I have seen the situation in Assam many times. Situation in America is different from ours. You are dealing with extraordinary situation"
Justice Shah: "That too in the border area where the intrusion and other terrorist activities are different from America"
Advocate: "That has to be borne in mind while interpreting the provision. That is why the hon'ble judges have gone wrong according to me"
Justice Shah to the SG: "Mr. Solicitor, you please give us judgments on under which circumstances, the court can read down a provision. It is to prevent the provision from being declared unconstitutional or ultra vires, and also to give it such an interpretation which will sustain its object and purpose. Please give us judgments.
That is your Trump Card. In a case where the provision was not under challenge, the court could not have read it down without giving you an opportunity of being heard"
Justice Shah: "That too in the border area where the intrusion and other terrorist activities are different from America"
Advocate: "That has to be borne in mind while interpreting the provision. That is why the hon'ble judges have gone wrong according to me"
Justice Shah to the SG: "Mr. Solicitor, you please give us judgments on under which circumstances, the court can read down a provision. It is to prevent the provision from being declared unconstitutional or ultra vires, and also to give it such an interpretation which will sustain its object and purpose. Please give us judgments.
That is your Trump Card. In a case where the provision was not under challenge, the court could not have read it down without giving you an opportunity of being heard"
Justice Ravikumar to Senior Advocate Sanjay Parikh for an NGO: "Of course this court can entertain petitions under article 32. 136 is there. The question comes to what exactly is the jurisdiction when there is an application of bail, what is the scope of consideration when there is a criminal appeal, at the same time what is the jurisdiction when there is a matter where constitutional validity is challenged. Are you saying that in all these matters, simply because it is the supreme court, without looking into the actual nature of the petition, the court can....?"
Justice Shah: "Any observations made while deciding the bail application normally are to be construed with regard to the deciding of the bail application without in any way influencing the trial. That is the cardinal principle of law. Therefore, can any observations made while deciding the bail application under 136 have a direct effect on the constitutional validity of the provisions of the statute without any challenge? Passing observations made while deciding bail application which would have a direct bearing on the constitutional provision and nullify the validity of the act? If that cannot be done today, how it can be done in those matters? Either we have to say that those are only passing observations and do not have a bearing on the constitutional validity, therefore there is no question of reading down"
SG: "The reference order says that 19(4) is not considered and therefore the three-judge bench will consider it. Your lordships may have to examine on merits"
Justice Shah: "Whether the observations made by this Court in 1, 2, 3 cases can be said to be reading down of section 10, and whether observation that being a mere member of an unlawful organisation may not be an offence or cannot be an offence is good law or not- We have to consider that much. We can very well say that in absence of any challenge to the validity, this court has said so and therefore it is not good law"
Mr. Parikh: "When you look at Kedarnath principles (that sedition is an offence when accompanied by an incitement to violence or act of public disorder) which have been evolved or Ram Manohar Lohia or any number of cases, the same principle is that you cannot incriminate a person unless he resorts to violence or incites people to violence or does an act intended to create disorder. That is an important element in all these judgments. Suppose there is a totally innocent person, it may happen when we talk of membership that there is a person who was a member at a particular point of time. Somebody comes and says you become a member, and he becomes a member...."
Justice Shah: "He should be wiser enough. That is the problem. Straightaway he cannot think that I should become a member and he becomes a member. But he is becoming a member of an organisation that is declared unlawful. You are supposed to know that it is unlawful because it was to be published"
Justice Ravikumar: "Under 3(4), it was to be published. Also, 'he is and is continuing to be a member'- that is the relevant provision"
Mr. Parikh: "I am going to read from Kartar Singh's case, 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. And this does not come from the American judgments"
Justice Shah: "Any observations made while deciding the bail application normally are to be construed with regard to the deciding of the bail application without in any way influencing the trial. That is the cardinal principle of law. Therefore, can any observations made while deciding the bail application under 136 have a direct effect on the constitutional validity of the provisions of the statute without any challenge? Passing observations made while deciding bail application which would have a direct bearing on the constitutional provision and nullify the validity of the act? If that cannot be done today, how it can be done in those matters? Either we have to say that those are only passing observations and do not have a bearing on the constitutional validity, therefore there is no question of reading down"
SG: "The reference order says that 19(4) is not considered and therefore the three-judge bench will consider it. Your lordships may have to examine on merits"
Justice Shah: "Whether the observations made by this Court in 1, 2, 3 cases can be said to be reading down of section 10, and whether observation that being a mere member of an unlawful organisation may not be an offence or cannot be an offence is good law or not- We have to consider that much. We can very well say that in absence of any challenge to the validity, this court has said so and therefore it is not good law"
Mr. Parikh: "When you look at Kedarnath principles (that sedition is an offence when accompanied by an incitement to violence or act of public disorder) which have been evolved or Ram Manohar Lohia or any number of cases, the same principle is that you cannot incriminate a person unless he resorts to violence or incites people to violence or does an act intended to create disorder. That is an important element in all these judgments. Suppose there is a totally innocent person, it may happen when we talk of membership that there is a person who was a member at a particular point of time. Somebody comes and says you become a member, and he becomes a member...."
Justice Shah: "He should be wiser enough. That is the problem. Straightaway he cannot think that I should become a member and he becomes a member. But he is becoming a member of an organisation that is declared unlawful. You are supposed to know that it is unlawful because it was to be published"
Justice Ravikumar: "Under 3(4), it was to be published. Also, 'he is and is continuing to be a member'- that is the relevant provision"
Mr. Parikh: "I am going to read from Kartar Singh's case, 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. And this does not come from the American judgments"
Justice Ravikumar: "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?"
Mr. Parikh: "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 (Arup Bhuyan, Indra Das and Raneef), 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"
Justice Shah: "You are correct. This court has not simply followed the American Supreme Court judgments. What has been stated by the American Supreme Court judgment, it has been reproduced and then it is stated that we agree with the view taken, and so we are of this opinion. So ultimately whatever is said, they have accepted and the same observations are adopted and it is stated that these are our opinions, our observations"
Mr. Parikh: "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 (Arup Bhuyan, Indra Das and Raneef), 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"
Justice Shah: "You are correct. This court has not simply followed the American Supreme Court judgments. What has been stated by the American Supreme Court judgment, it has been reproduced and then it is stated that we agree with the view taken, and so we are of this opinion. So ultimately whatever is said, they have accepted and the same observations are adopted and it is stated that these are our opinions, our observations"
Justice Ravikumar to Mr. Parikh: "Are you saying that putting a reasonable restriction would be unconstitutional?"
Mr. Parikh: "No, no"
Justice Shah: "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"
Justice Shah: "Misuse of law or abuse of law or apprehension of misuse or abuse of law cannot be a ground (for declaring the law unconstitutional). Except in one case it has happened- NJAC. Action can be set aside but not the law. You may acquit him but not declare the law unconstitutional. You may say that there is nothing against him despite this...."
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