New Delhi: The Supreme Court Friday said application of American concepts, laws and precedents in the interpretation of local legislations should be done with some caution, adding that “the right to freedom of speech is subject to reasonable restrictions” in India.
The court made this observation while overruling its previous rulings, which held that “mere membership” of a banned organisation under the Unlawful Activities (Prevention) Act (UAPA), 1967, will not attract criminal prosecution unless the member “resorts to violence or incites people to violence and does an act intended to create disorder or disturbance of public peace by resorting to violence”.
A three-judge bench led by Justice M. R. Shah pronounced the judgment on an application filed by the central government seeking review of the top court’s earlier three orders that read down section 10(a)(i) of UAPA and a similar provision in another anti-terror law — the Terrorist and Disruptive Activities (Prevention) Act, 1987.
All the three judgments — State of Kerala vs. Raneef, Arup Bhuyan vs. Union of India and Indra Das vs State of Assam — were delivered in 2011. While heavily relying on numerous judgments delivered by the US Supreme Court, the SC had read down section 10(a)(i) to reject the doctrine of “guilt by association” unless it was intended to “create disorder or disturbance of public peace by resorting to violence”.
While accepting the central government’s three main contentions assailing the three judgments, the bench — also comprising justices C.T. Ravikumar and Sanjay Karol — said section 10(a)(i) of UAPA is consistent with the reasonable restrictions imposed on the right to free speech under the Constitution because it furthers the objective of the UAPA, which is to protect India’s sovereignty.
The bench rejected civil society group People’s Union for Democratic Rights’ (PUDR’s) opposition to the central government’s review plea that the section was vague and subject to misuse. The bench said that according to the settled legal position, possible abuse of the law cannot be a ground to declare it unconstitutional. On the point of vagueness, the bench did not agree with PUDR.
Another argument of the PUDR that the provision could have a chilling effect on citizens, was also rejected by the court. The bench said that if a person continues to be a member of a banned organisation, despite having knowledge about its unlawful status, then he/she is liable to be punished.
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Member of unlawful outfit
Under Section 3 of UAPA, the central government can declare an organisation or an association unlawful.
The law requires this notification to be confirmed through a judicial process. A tribunal is notified, in terms of the law, where the organisation sought to be banned is granted the opportunity to contest the ban. After scrutinising the evidence brought on record by various prosecuting agencies, the tribunal delivers its ruling either to uphold the ban or set it aside.
Section 10 of UAPA carries a penalty for being a member of an unlawful association, one that is declared illegal by a notification issued under section 3 of UAPA.
The section’s sub-clause ‘a’ lists out four situations under which a person can be declared as a member of a banned organisation. They are (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.
Such a member, found guilty, can be imprisoned for two years and shall also be liable to fine.
Central govt appeal
Three years after the three SC verdicts, the central government filed a review petition before the top court in 2014, asking it to re-examine the declarations. Even the Assam government sought a review of the top court judgement in the Arup Bhuyan case.
Three main arguments were advanced before the court both by the central government and Assam.
First, they said the apex court gave a finding on the section 10(a)(i) even though the said provision was not under challenge. The three cases which the top court decided were bail applications.
Moreover, the central government claimed that it was never party to the proceedings and the bench of two judges in all the three cases made observations on the section without giving it any opportunity to argue the matter.
Another grievance raised by the government was that in all the three decisions the top court had extensively quoted American decisions concerning freedom of speech, whereas in India the right to free speech is not absolute and that the Indian Constitution permits imposition of reasonable restrictions on citizens in the interest of the country’s sovereignty and integrity.
Taking note of these three points, the top court on 26 August, 2014, referred the review applications to a larger bench of three judges.
During the hearing, the central government took the court through the legal history of UAPA, which was enforced subsequent to the 16th amendment in the Constitution in 1963.
Declaration of an organisation as “unlawful” wasn’t on the basis of an executive diktat, but 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,” the central government said.
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SC verdict: Section unambiguous
The top court, in its judgment on Friday, noted that reading down a provision cannot be resorted to when the meaning of a “provision is plain, unambiguous and the legislative intent is clear.”
It laid emphasis on the “reading down doctrine,” under which reading down of a statute is not permissible unless and until the constitutional validity of such provision is under challenge and the opportunity is given to the Union of India to defend a particular parliamentary statute.
On the point of vagueness, the court said the language in section Section 10(a)(i) is very cautiously worded.
“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 was declared unlawful but he continues to be a member,” the court noted.
If a person continues to be a member of a banned organisation, it shows his/her conscious decision to be part of an unlawful association and is, therefore, liable to be penalised for such an act of continuation of his membership with such unlawful association, the court said.
Govt not party to proceedings
The court accepted central government’s argument that the 2011 judgments came in bail matters, without hearing its side.
“When any provision of Parliamentary legislation is read down in the absence of the Union of India it is likely to cause enormous harm to the interest of the State,” it said.
If the central government had got the opportunity to put forward its case, it would have made its submissions in favor of the section, including the object and purpose for enactment of such a provision and even the object and purpose of UAPA, the court observed.
US jurisprudence not applicable
The bench faulted the earlier verdicts for following American judgments, saying they failed to consider 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.”
The court said the Constitution permits the Parliament to frame the laws taking into consideration the public order or the sovereignty of India.
“Without noticing the differences in American Laws and the Indian laws, this court in the case of Arup Bhuyan (supra) and Raneef (supra) 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,” the court added.
The bench held the “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 we do 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 a guidance. Before following the American decisions, the Indian Courts are required to consider the difference in the nature of the laws applicable in the respective countries,” it further said.
(Edited by Anumeha Saxena)
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