How the Supreme Court UAPA verdict leaves loopholes for agencies to exploit

Supreme Court of India | ANI file photo

The Supreme Court in its recent Arup Bhuyan vs State of Assam (2023) verdict, speaking through a three-judge Bench comprising of Justices M.R. Shah, C.T. Ravi Kumar, and Sanjay Karol, overruled its older judgments in three previous cases of Arup Bhuyan (2011), Raneef, and Indra Das. Among other points, the court decided upon the applicability of section 10(a)(i) of the Unlawful Activities (Prevention) Act (UAPA) 1967. This section penalises anyone who ‘is and continues to be a member’ of any association declared ‘unlawful’ by the central government.

Preventive detention laws such as the UAPA have always drawn criticism for their departures from established norms of criminal law that rely on the principle that a person cannot be condemned unless he/she has committed an offence. The overruled decision in Arup Bhuyan, which was relied upon by the Supreme Court in the cases of Raneef and Indra Das, read down that provision (section 10(a)(i)) of the UAPA and held that mere passive membership is not sufficient to penalise a person and that overt acts over and above the mere membership must be proven to punish anyone under the said section. These judgments distinguished ‘passive’ and ‘active’ membership of an unlawful organisation and penalised only the latter. However, the present ruling overturns that view and holds no such distinction to be valid.

Questions considered by the Supreme Court

The Supreme Court based its ruling on the consideration of three questions of law. First, it asked whether the American decisions concerning freedom of speech cited in the now-overruled judgments could have been relied upon, observing that due regard has to be given to the different nature of laws in India and the US:

“…this Court in the case of Arup Bhuyan and Raneep (sic) has erred in straightaway and directly following the US Supreme Court decisions and that too without adverting to the differences and the positions of laws in India.”

Further, it noted that the said right is subject to ‘reasonable restrictions’ and is not an absolute right, unlike in the US.

Second, the court noted that the earlier judgments were made in a case where the constitutional validity of section 10(a)(i) was not challenged directly, and that the decision was rendered without hearing the Union of India. Hence, the court observed, had the Union of India been allowed to put forward its case, it would have argued in favour of section 10(a)(i). Therefore, UAPA being a law made by Parliament, reading its provision down without hearing the Union of India is “likely to cause enormous harm to the interest of the State.”

Third, and more crucially, it asked whether ‘active membership’ is required to be proven over and above the membership of a banned organisation. Here, the Supreme Court reiterated the objects and reasons for the enactment of the UAPA. It was noted that the main objective of the UAPA is to “make powers available for dealing with activities directed against the integrity and sovereignty of India.”

It was further observed that once an association is declared unlawful after following the due procedure, and a person nevertheless continues to be a member, he is liable to be punished. It was reiterated that before any organisation is declared unlawful, a detailed procedure is required to be followed including the wide publicity of the ban and even the right of such association to represent before a Tribunal as to why the ban on the said organisation should not be confirmed.

The Supreme Court also rejected the argument that section 10(a)(i) punished mere unlawful association in the absence of any mens rea, or criminal intention. It was observed that if a person continues to be a member even after being aware of the declaration of such association as unlawful, “his intention is very clear that he still wants to associate with such an association which is indulging in ‘unlawful activities’ and acting against the interests of sovereignty and integrity of India.”

The Supreme Court also went on to reject the arguments that section 10(a)(i) is vague, unreasonable, and/or disproportionate. Further, it was also observed that the said section cannot be read down merely on the possibility of abuse/misuse if the provision is otherwise constitutionally sound.

What are the implications of the ruling?

The Supreme Court emphasised how the Act provides for ‘due procedure’ to be followed under section 3. This section provides that the central government may declare any association as unlawful, and after such declaration, an automatic reference is made to a Tribunal which shall provide an opportunity to the said association (and/or its members) to argue against the declaration of such association as unlawful. The single-member Tribunal constituted under section 5 shall consist of a high court judge. Thereafter, once the Tribunal confirms the declaration, any individual who continues to be a member can be punished under section 10(a)(i).

Now, as section 10(a) itself provides, and as reiterated by the recent Supreme Court ruling as well, a member may be punished (including passive members) only after the Tribunal confirms the declaration. This seems to be a fair provision, giving members an opportunity to fight against the ban, and expecting them to discontinue their membership after such an opportunity is provided.

However, what the Supreme Court has missed is the fact that a proviso to section 3(3) provides for an exception. It stipulates that the central government may even do away with the requirement of referring a ban to the Tribunal if it is of the opinion that circumstances rendering an immediate ban exist. Of course, what circumstances render an immediate ban justified is not mentioned and is left to the discretion of the executive.

Therefore, while discussing ‘due procedure’ and the principles of natural justice in the context of penalising passive membership under section 10(a)(i), the Supreme Court’s absence of clarification as to the said proviso to section 3(3) legitimises a loophole that can possibly flout the principles of natural justice.

Leeway to arrest even non-members

With the ruling, now there is no requirement for the State to prove that a person, being a member of an unlawful organisation has actually resorted to violence or incited violence; the State only needs to show that he/she is a member of an ‘unlawful’ organisation. However, ‘membership’ has nowhere been defined in the Act, which is something that the court seems to have missed. Moreover, many organisations, more so which may be banned as ‘unlawful’, do not keep a strict record of their members.

This gives leeway to the investigative agencies to interpret ‘membership’. A driver, tailor, servant, among others, who may render his services to members of an unlawful organisation may be shown as a ‘member’ even if he/she had been oblivious of the existence of any such organisation. Further, as put by Mihir Desai (Senior Advocate, Bombay High Court), he/she shall also be precluded from producing evidence to the contrary since that would only be permissible at the trial.

It is evident how the recent ruling leaves more questions than it answers. The Supreme Court, while holding the possibility of misuse of the law to be an invalid ground to read down a law, even noted that:

“As per the settled law, any action which is the result of abuse/misuse of any law is subject to challenge. But on the possibility of abuse/misuse of law otherwise constitutionally valid legislation cannot be declared unconstitutional.”

It is expected that a future larger Bench would be called upon to re-consider the recent decision, and plug the gaps left by the three-judge Bench.

Mohammad Nasir is Assistant Professor of Law at Aligarh Muslim University and author of Syed Mahmood: Colonial India’s Dissenting Judge. Taha Bin Tasneem reads law at Aligarh Muslim University. Kaif Siddiqui is PhD candidate at NALSAR University of Law. Views are personal.

(Edited by Anurag Chaubey)