ARUP BHUYAN versus STATE OF ASSAM & ANR.

[2023] 8 S.C.R. 496

[2023] 8 S.C.R.

ARUP BHUYAN

STATE OF ASSAM & ANR.

(Criminal Appeal No. 889 of 2007)

BMARCH 24, 2023

[M. R. SHAH, C. T. RAVIKUMAR ANDSANJAY KAROL, JJ.]

Unlawful Activities (Prevention) Act, 1967 – ss.10(a)(i), 3 and4 – s.10(a)(i) provides that where an association is declared unlawfulCby notification issued u/s.3 which has become effective undersub-section 3 of that Section, person who is and continues to be amember of such association shall be punishable with imprisonmentfor term which may extend to 2 years and shall also be liable tofine – Whether “active membership” is required to be proven overDand above the membership of banned organization under theUAPA, 1967 – Held: The object and purpose of the enactment ofUAPA is to provide for more effective prevention of certain unlawfulactivities – s.10(a)(i) can be said to be absolutely in consonancewith Arts. 19(1), (2) & (4) of the Constitution and can be said to bein furtherance of the object and purpose for which the UAPA hasEbeen enacted – Before any organization is declared unlawful, adetailed procedure is required to be followed including wide publicityand even the right to representation before tribunal – s.10(a)(i)does not suffer from any vagueness and/or on the ground of beingunreasonable and/or disproportionate – As per s.10(a)(i), personFcannot be punished merely because he was the member of suchunlawful association – If person has been member but does notcontinue to be member after declaration, that does not attractmischief of s.10 – However, once an association is declared unlawfulof whom the concerned person was the member and he wishes tocontinue as member despite the fact that he is well aware of theGfact that such an association is declared unlawful it shows aconscious decision on his part and therefore he is liable to bepenalized for such an act of continuation of his membership withsuch unlawful association – Therefore, thereafter he cannot bepermitted to make grievance of chilling effect – Doctrines /HPrinciples – Chilling effect doctrine.

Constitution of India – Arts.19(1)(c) and 19(4) – Right tofreedom of speech – Value of Foreign decisions – Whether Americandecisions concerning freedom of speech could be relied upon whileconsidering the right to freedom of speech available under theConstitution of India more particularly Art.19(1)(c) and 19(4) –Held: Under the Constitution of India, the right to freedom of speechis subject to reasonable restrictions and is not an absolute right –The Constitution permits the Parliament to frame the laws takinginto consideration the public order and/or the sovereignty of India– Without noticing the differences in American Laws and the Indianlaws, the Supreme Court in the cases of Arup Bhuyan (two JudgeBench decision) and Raneef erred in straightway and directlyfollowing the US Supreme Court decisions – Before following theAmerican decisions, the Indian Courts are required to consider thedifference in the nature of the laws applicable in the respectivecountries – 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 downs.10(a)(i) that mere membership of banned organization will notmake person criminal/guilty unless he resorts to violence orincites people to violence or creates public disorder by violence orincitement to violence – Reading down of s.10(a)(i) withoutimpleading the Union of India as party and more particularlywhen the constitutional validity of the aforesaid provision was notcalled in question – If proper – Held: When any provision ofParliamentary legislation is read down in the absence of Union ofIndia it is likely to cause enormous harm to the interest of the State– In absence of any challenge to the constitutional validity ofs.10(a)(i) of the UAPA there was no question of reading down ofthe said provision by this Court – Reading down the provision of astatute cannot be resorted to when the meaning of provision isplain and unambiguous and the legislative intent is clear – TheCourt ought not to have read down s.10(a)(i) of the UAPA, 1967when neither its’ constitutional validity was under challenge northe Union of India was heard.

Interpretation of Statutes – Doctrines/Principles – “Readingdown Doctrine” – Discussed.

498SUPREME COURT REPORTS

[2023] 8 S.C.R.

AAnswering the Reference, the CourtHELD:

per M.R. SHAH, J. (for himself, C.T. Ravikumar, J. andSanjay Karol, J.)

B1. Now so far as the reading down of Section 10(a)(i) of theUAPA, 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 ofthe provision of statute could not have been made withouthearing the Union of India and/or without giving any opportunityto the Union of India. When any provision of ParliamentaryClegislation is read down in the absence of Union of India it islikely to cause enormous harm to the interest of the State. If theopportunity would have been given to the Union of India to putforward its case on the provisions of Section 10(a)(i) of the UAPA,1967, the Union of India would have made submissions in favourDof Section 10(a)(i) of the UAPA including the object and purposefor enactment of such provision and even the object and purposeof UAPA. Even otherwise in absence of any challenge to theconstitutional validity of Section 10(a)(i) of the UAPA there wasno question of reading down of the said provision by this Court.Therefore, in absence of any challenge to the constitutional validityEof Section 10(a)(i) of UAPA, 1967 there was no occasion for thisCourt to read down the said provision. Also, reading down theprovision of statute cannot be resorted to when the meaning ofa provision is plain and unambiguous and the legislative intent isclear. This Court ought not to have read down Section 10(a)(i) ofFthe UAPA, 1967 more particularly when neither the constitutionalvalidity of Section 10(a)(i) of the UAPA, 1967 was under challengenor the Union of India was heard. [Paras 11.1, 11.2, 11.3, 11.4 and11.5][535-F-H; 536-A-E, H]

2. Considering the different position of laws in US and inGour country more particularly faced with Articles 19(1)(c) and 19(4)of the Constitution of India under which the right to freedom ofspeech is subject to reasonable restrictions and is not an absoluteright and the constitution permits the Parliament to frame thelaws taking into consideration the public order and/or thesovereignty of India, without noticing the differences in AmericanH

Laws and the Indian laws, this Court in the case of Arup Bhuyan(two Judge Bench decision) and Raneef has erred in straightwayand directly following the US Supreme Court decisions and thattoo without adverting to the differences and the position of lawsin India. In the aforesaid two decisions without noticing thedifferences of the US Supreme Court this Court has just followedthe American decisions, which cannot be accepted. This Courtought to have considered the differences in the American lawsand the Indian laws more particularly the provisions in the IndianConstitution. By the aforesaid this Court does not say for amoment that in given case the US Supreme Court decisionsmay not be taken into consideration and/or may not be guidance.Before following the American decisions, the Indian Courts arerequired to consider the difference in the nature of the lawsapplicable in the respective countries. [Paras 13 and 13.1][542-G-H; 453-A-C]

3.1 Before any organization is declared unlawful detailedprocedure is required to be followed including the wide publicityand even the right to member of such association to representbefore the Tribunal. The notification issued by the CentralGovernment declaring particular association unlawful, is subjectto inquiry and approval by the Tribunal as per Section 4. Oncethat is done and despite that person who is member of suchunlawful association continues to be member of such unlawfulassociation then he has to face the consequences and is subjectedto the penal provisions as provided under Section 10 moreparticularly Section 10(a)(i) of the UAPA, 1967. [Para 14.5][554-E-F]

3.2. person who is member of such an unlawfulassociation is as such aware of the declaration of such associationas unlawful and despite the same if he still continues to be themember of such unlawful association which is indulging into theunlawful activities and acting against the sovereignty and integrityof India, his intention is very clear that he still wants to associatewith such an association which is indulging into ‘unlawful activities’and acting against the interests of sovereignty and integrity ofIndia. The language used in the Section 10(1)(i) and the procedureto be followed under Sections 3 & 4 of the Act, before anyassociation is declared as unlawful are very clear. Therefore,

ASection 10(a)(i) does not suffer from any vagueness and/or onthe ground unreasonable and/or disproportionate. [Para 16.1][556-E-G]

3.3 As per Section 10(a)(i) person cannot be punishedmerely because he was the member of such unlawful association.BThe language including Section 10 is very significant. It providesthat “wherein an association is declared unlawful” by notificationunder Section 3 which has become effective under sub-Section 3of that Section. So, it is only after the Notification under Section 3has become effective under subsection 3, that the latter part ofthat Section applies. The language of Section 10(a)(i) is also veryCcautiously worded “who is and continues to be member of suchassociation”. Therefore, on true interpretation, if person hasbeen member but does not continue to be member afterdeclaration, that does not attract mischief of Section 10. Theintention seems to be that not only was he member on the dayDwhen the association is declared unlawful but he continues to bea member. The intention is very clear that not only on the givendate but even after that you continue to be member of thatassociation which is declared as unlawful association due tounlawful activities which is found to be against the interests ofsovereignty and integrity of India. Therefore, once an associationEis declared unlawful of whom the concerned person was themember wishes to continue as member despite the fact that heis well aware of the fact that such an association is declaredunlawful and if he still wishes to continue being part of suchunlawful association it shows conscious decision on his partFand therefore liable to be penalized for such an act of continuationof his membership with such unlawful association. Therefore,thereafter he may not make grievance of chilling effect. [Para17.1][557-B-F]

4. The view taken by this Court in the cases of Raneef,GArup Bhuyan (two Judge Bench decision), and Sri Indra Dastaking the view that under Section 3(5) of Terrorists andDisruptive Activities (Prevention) Act, 1987 and Section 10(a)(i)of the Unlawful Activities (Prevention) Act, 1967 meremembership of banned organization will not incriminate person

unless he resorts to violence or incites people to violence anddoes an act intended to create disorder or disturbance of publicpeace by resort to violence and reading down the said provisionsto mean that over and above the membership of bannedorganization there must be an overt act and/or further criminalactivities and adding the element of mens rea are held to be not agood law. When an association is declared unlawful by notificationissued under Section 3 which has become effective of sub-section3 of that Section, person who is and continues to be memberof such association is liable to be punished with imprisonmentfor term which may extend to two years, and shall also be liableto 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] 1SCR 590; Arup Bhuyan vs. Union of India (2011) 3SCC 377 : [2011] 2 SCR 506 and Indra Das v. State ofAssam (2011) 3 SCC 380 : [2011] 4 SCR 289 – heldnot good law.

Babulal Parate vs. State of Maharashtra [1961] 3 SCR423; Madhu Limaye vs. Sub-Divisional Magistrate(1970) 3 SCC 746 : [1971] 2 SCR 711; Supdt., CentralPrison vs. Dr. Ram Manohar Lohia [1960] 2 SCR 821;Joseph Kuruvilla 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 SCC225 : [1973] Suppl. SCR 1; State of Bihar vs. Union ofIndia (1970) 1 SCC 67 : [1970] 2 SCR 522 andSubramanian Swamy and others vs. Raju throughMember, Juvenile Justice Board and Anr. (2014) 8 SCC390 : [2014] 9 SCR 283 – relied on.Sanjeev Coke Manufacturing Company v. M/s BharatCooking Coal Limited (1983) 1 SCC 147 : [1983] 1SCR 1000; Kaushal Kishor v. State of Uttar Pradeshand Others 2023 SCC OnLine SC 6; Ramlila MaidanIncident, 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

A1 : [1978] 2 SCR 537; People’s Union for Civil Libertiesv. 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. SCRB769; State of Bihar v. Shailabala Devi AIR 1952 SC329 : [1952] SCR 654; S. Rangarajan v. P. JagjivanRam and others (1989) 2 SCC 574 : [1989] 2 SCR204; O.K. Ghosh v. E.X. Joseph, AIR 1963 812 : [1963]Suppl. SCR 789; Balwant Singh v. State of Punjab (1995)C3 SCC 214 : [1995] 2 SCR 411; Kartar Singh v. Stateof Punjab (1994) 3 SCC 569 : [1994] 2 SCR 375; T.N.Education Deptt. Ministerial and General SubordinateServices Assn. vs. State of Tamil Nadu (1980) 3 SCC97 : [1980] 1 SCR 1026; Mafatlal Industrial Ltd. vs.Union of India (1997) 5 SCC 536 : [1996] 10 Suppl.DSCR 585 and Thawaha Fasal vs. Union of India (2021)SCC Online SC 1000 – referred to.

Niharendu Dutt Majumdar v. The King Emperor 1942F.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 [16L Ed 2d 321]; Joint Anti-Fascist Refugee Committeevs. McGrath [95 L Ed 817] – referred to.

Fper SANJAY KAROL, J. (Separately concurring as well)

1. The contradistinction between the rights created by theFirst Amendment of the American Constitution and Article 19 ofthe Indian Constitution is the power given to the State to makelaws reasonably restricting such freedoms in India. Conversely,Gin the United States of America, restrictions have been imposedby the Judiciary in instances, as relied upon in Arup Bhuyan andIndra Das, however no such explicit power is available with theLegislature. [Para 15][567-C]

2. In Arup Bhayan, the Court placed reliance on Americandecisions in Elfbrandt v. Russel, Clarence Brandenberg v. State ofH

Ohio and United States v. Eugene Frank Robel wherein the doctrineof ‘guilt by association’ has been rejected. The court observedthat the abovementioned judgments apply to India too, since thefundamental rights in India are similar to the Bill of Rights in theU.S. Constitution. The abovementioned decisions are incontradistinction to the scenario in question in India. TheAmerican decisions primarily involve indictment on the basis ofmembership of political organizations or incidents of free speechadvocating overthrow of the government. However, under Indianlaw, it is not membership of political organizations etc. or freespeech or criticism of the government that is sought to be banned,it is only those organizations which aim to compromise thesovereignty and integrity of India and have been notified to besuch and unlawful, whose membership is prohibited. This is infurtherance of the objective of the UAPA, which has been enactedto provide for the more effective prevention of certain unlawfulactivities of individuals and associations and dealing with terroristactivities 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 Americanand Indian scenario, so far as, sub serving public interest isconcerned. It is this difference which seemed to have escapedthe division bench’s attention in Arup Bhyan and Indra Das.Therefore, placing reliance on decisions rendered in distinctscenario as well as demonstrably different constitutional position,that too almost singularly, especially in cases which involveconsiderations of national security and sovereignty, was notjustified. [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 goodlaw.

Babulal Parate v. State of Maharashtra [1961] 3 SCR423 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) 2SCC 510 : [2004] 1 SCR 1038; Hyderabad AsbestosCement Products and Anr. v. Union of India and Ors.(2000) 1 SCC 426 : [1999] 5 Suppl. SCR 155; ShreyaSinghal v. Union of India (2015) 5 SCC 1 : [2015] 5SCR 963; Indian Express Newspapers (Bombay) Pvt.Ltd. and Others v. Union of India and Others (1985) 1SCC 641 : [1985] 2 SCR 287; Superintendent, CentralPrison v. Dr. Ram Manohar Lohia [1960] 2 SCR 821;Pathumma v. State of Kerala (1978) 2 SCC 1 : [1978] 2SCR 537; M.C. Mehta v. Union of India (1987) 1 SCC395 : [1987] 1 SCR 819; Ashok Kumar Thakur v. Unionof India (2008) 6 SCC 1 : [2008] 4 SCR 1; JayendraVishnu Thakur v. State of Maharashtra (2009) 7 SCC104 : [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 Online6; 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 Devi AIR1952 SC 329 : [1952] SCR 654; O.K. Ghosh and Anr.v. E.X. Joseph AIR 1963 SC 812 : [1963] Suppl. SCR789; 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 India AIR1962 SC 263 : [1962] 3 SCR 547; Jamaat-E-IslamiHind v. Union of India (1995) 1 SCC 428 : [1994] 6Suppl. SCR 316; Express Newspapers (Pvt.) Limited andAnother v. Union of India and Others [1959] SCR 12;State of Travancore – Cochin and Others v. BombayCo. Ltd. [1952] SCR 1112; State of Bombay v. R.M.D.Chamarbaugwala [1957] SCR 874;ReliancePetrochemicals Ltd. v. Proprietors of Indian ExpressNewspapers, Bombay Pvt. Ltd. and Ors. (1988) 4 SCC592 : [1988] 3 Suppl. SCR 212; R.K. Garg v. Union ofIndia (1981) 4 SCC 675 : [1982] 1 SCR 947; ManekaGandhi v. Union of India (1978) 1 SCC 248 : [1978] 2SCR 621 and State of Kerela v. Raneef (2011) 1 SCC784 : [2011] 1 SCR 590 – referred to.

Morey v. Doud 354 US 457 (1957); Secy. of Agriculturev. Central Roig Refining Co. 338 US 604 (1949); Ghaniv. Jones (1970) 1 QB 693; Elfbrandt v. Russel 384 U.S.17 (1966); Clarence Brandenberg v. State of Ohio 395U.S. 444 (1969);United States v. Eugene Frank Robel389 U.S. 258 (1967); Clarence Brandenberg v. State ofOhio 395 U.S. 444 (1969); United States v. EugeneFrank Robel 389 U.S. 258 (1967); Scales v. UnitedStates 367 US 203 (1960); Noto v. United States 367US 290 (1960);Communist Party v. Subversive ActivitiesControl Board 367 US 1 (1961); Joint Anti-FascistRefugee Committee v. McGrath 341 US 123, 174 (1951);Keyishian v. Board of Regents of New York 385 US 5891966; In Yates v. U.S. 354 US 298 (1957); Whitney v.California 274 US 357 (1926); Gitlow v. New York 268US 652 (1925); Terminiello v. Chicago 337 US 1(1948) and De Jonge v. Oregon 299 US 353 (1936)-referred to.

Case Law Reference

In the judgment of M.R. SHAH, J.

506SUPREME COURT REPORTS

[2023] 8 S.C.R.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.889 of 2007.

From the Judgment and Order dated 28.03.2007 of the DesignatedCourt, Assam at Guwahati in TADA Sessions Case No. 13 of 1991.

With

Review Petition (Criminal) No. 417 of 2011 in Criminal AppealNo. 1383 of 2007, Review Petition (Criminal) No. 426 of 2011 in CriminalAppeal No. 889 of 2007, Special Leave Petition (Crl.) Nos. 5971, 5964of 2019, Criminal Appeal No. 1383 of 2007, SLP (Crl.)… CRLMPNo.16637 of 2014, and Special Leave Petition Nos. 5643, 6270 of 2019.

Tushar Mehta, Solicitor General, K M Nataraj, A.S.G., VinayNavare, Sanjay Parikh, R. Basant, Sr. Advs., Ms. Ranjana Narayan,Kanu Agrawal, Rajan Kumar Chourasia, Sandeep Kumar Mahapatra,Navanjay Mahapatra, Ashok Panigarhi, Arvind Kumar Sharma, GurmeetSingh Makker, Shuvodeep Roy, Deepayan Dutta, Sai Shashank, JawaharRaja, 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

AMukhopadhyay, Abhijit Sengupta, Mohamad Shareef K.P., P. A. NoorMohamed, Advs. for the appearing parties.

The Judgments of the Court were delivered by

M. R. SHAH, J.

B1. Present reference to the larger Bench is made against thejudgment 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) 1SCC 784, pursuant to the order passed by this Court dated 26.08.2014,reported as (2015) 12 SCC 702.

Background of the ReferenceC

2. That the Division Bench of this Court in the case of Raneef(supra) whilst relying upon numerous American decisions concerningfreedom of speech and position on membership of banned organizationsrejected the doctrine of “guilt by association” and observed that meremembership of banned organization will not incriminate person unlessDhe resorts to violence or incites people to violence and does an act intendedto create disorder or disturbance of public peace by resort to violence. Inparagraphs 10 to 14 this Court in the case of Raneef (supra) observedand held as under:

“10.) As regards the allegation that the respondent belongs to theEPFI, it is true that it has been held in Redaul Husain Khan vs.National Investigation Agency2010 (1) SCC 521 that merelybecause an organization has not been declared as an `unlawfulassociation’ it cannot be said that the said organization could nothave indulged in terrorist activities. However, in our opinion theFsaid decision is distinguishable as in that case the accused wassending money to an extremist organization for purchasing armsand ammunition. That is not the allegation in the present case.

The decision in State of Maharashtra vs. Dhanendra ShriramBhurle2009(11) SCC 541 is also distinguishable because goodGreasons have been given in the present case by the High Court forgranting bail to the respondent. In the present case there is noevidence as yet to prove that the P.F.I. is terrorist organization,and hence the respondent cannot be penalized merely for belongingto the P.F.I. Moreover, even assuming that the P.F.I. is an illegalorganization, we have yet to consider whether all members of theHorganization can be automatically held to be guilty.

11. In Scales vs. United States 367 U.S. 203 Mr. Justice Harlan ofthe U.S. Supreme Court while dealing with the membership clausein the McCarran Act, 1950 distinguished between active ‘knowing’membership and passive, merely nominal membership in asubversive organization, and observed :

“The clause does not make criminal all association with anorganization which has been shown to engage in illegal activity. Aperson may be foolish, deluded, or perhaps mere optimistic, but heis not by this statute made criminal. There must be clear proofthat the defendant specifically intends to accomplish the aims ofthe organization by resort to violence.”

12. In Elfbrandt vs. Russell 384 US 17-19 (1966) Justice Douglasof the U.S. Supreme Court speaking for the majority observed :

“Those who join an organization but do not share its unlawfulpurpose and who do not participate in its unlawful activities surelypose no threat, either as citizens or as public employees. lawwhich applies to membership without the `specific intent’ to furtherthe illegal aims of the organization infringes unnecessarily onprotected freedoms. It rests on the doctrine of `guilt by association’which has no place here.”

13. In Joint Anti-Fascist Refugee Committee vs. McGrath 341US 123 at 174 (1951) Mr. Justice Douglas of the U.S. SupremeCourt observed :

“In days of great tension when feelings run high, it is temptationto take shortcuts by borrowing from the totalitarian techniques ofour opponents. But when we do, we set in motion subversiveinfluence 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 countrytoo. We are living in democracy, and the above observationsapply to all democracies.”

2.1 That thereafter the Division Bench of this Court in anotherdecision in the case of Arup Bhuyan (supra) whist relying upon Raneef(supra) and relying upon the same American doctrines which were earlierconsidered in the case of Raneef (supra) has observed in paragraph 12as under:

“We respectfully agree with the above decisions, and are ofthe opinion that they apply to India too, as our fundamental rightsare similar to the Bill of Rights in the U.S. Constitution. In ouropinion, Section 3(5) cannot be read literally otherwise it will violateArticles 19 and 21 of the Constitution. It has to be read in the lightof our observations made above. Hence, mere membership of abanned organisation will not make person criminal unless heresorts to violence or incites people to violence or creates publicdisorder by violence or incitement to violence. Hence, the convictionof the appellant under Section 3(5) of the TADA is also notsustainable.”

2.2 At this stage it is required to be noted that at the time whenRaneef (supra) and Arup Bhuyan (Supra) were decided neither Section10(i) of the Unlawful Activities (Prevention) Act, 1967 (hereinafterreferred to as the ‘UAPA Act, 1967’) was under challenge and/or theconstitutionality of the said provision was under challenge nor even theDUnion of India was party to the said proceedings and the DivisionBenches of the Court in the aforesaid two decisions made observationson Section 10(a)(i) of the UAPA Act, 1967 without giving any opportunityto the Union of India. Therefore, the Union of India filed the applicationsseeking permission to file review petition on the ground that theinterpretation made by this Court in the aforesaid two decisions would beEprejudicial to their interests and therefore, the Union of India had rightto be heard. The State of Assam also preferred the review petitions.

2.3 Having regard to the important issue raised by the learnedSolicitor General and the Senior Counsel for the State of Assam, byorder dated 26.08.2014 reported in (2015) 12 SCC 702 the matter isFreferred to the larger Bench. While referring the matter to the largerBench this Court noted the submissions made by the learned SolicitorGeneral in paragraphs 4 to 7 and 10 to 11 as under:

“4.Mr. Ranjit Kumar, learned Solicitor General appearingfor the Union of India, has submitted that in the case of ArupBhuyan vs. State of Assam, 2011 (3) SCC 377, this Court hasread down the provision to the detriment of the interest of theUnion of India when it was not party before it. He has alsoinvited our attention to the decision in Sri Indra Das vs. State ofAssam 2011 (3) SCC 380. In Arup Bhuyan’s case as well as inthe case Sri Indra Das, the two-Judge Bench has referred to many

authorities of Supreme Court of United States of America andthereafter quoted passage from Kedar Nath vs. State of BiharAIR 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 shouldemerge, assuming that the main s. 124A is capable of beingconstrued in the literal sense in which the Judicial Committee ofthe Privy Council has construed it in the cases referred to above.On that assumption, it is not open to this Court to construe thesection is such way as to avoid the alleged unconstitutionality bylimiting the application of the section in the way in which the FederalCourt intended to apply it ? In our opinion, there are decisions ofthis Court which amply justify our taking that view of the legalposition. This Court, in the case of R.M.D. Chamarbaugwalla v.The Union of India (1) has examined in detail the several decisionsof this Court, as also of the Courts in America and Australia. Afterexamining those decisions, this Court came to the conclusion thatif the impugned provisions of law come within the constitutionalpowers of the legislature by adopting one view of the words of theimpugned section or Act, the Court will take that view of the matterand limit its application accordingly, in preference to the view whichwould make it unconstitutional on another view of the interpretation

of the words in question.

In that case, the Court had to choose between definitionof the expression ‘Prize Competitions” as limited to thosecompetitions which were of gambling character and those whichwere not. The Court chose the former interpretation which madethe rest of the provisions of the Act, Prize Competitions Act (XLIIof 1955), with particular reference to ss. 4 and 5 of the Act andRules 11 and 12 framed thereunder, valid. The Court held that thepenalty attached only to those competitions which involved theelement of gambling and those competitions in which successdepended to substantial degree on skill were held to be out of thepurview of the Act.

The ratio decidendi in that case, in our opinion, applied tothe case in hand in so far as we propose to limit its operation onlyto such activities as come within the ambit of the observations ofthe Federal Court, that is to say, activities involving incitement to

violence or intention or tendency to create public disorder or causedisturbance of public peace.”

5. It is submitted by Mr. Ranjit Kumar that such reading down ofa provision should not have been done without impleading the Unionof India as party and moreover, when the constitutional validitywas not called in question. He has drawn our attention to Section10 of the Unlawful Activities (Prevention) Act, 1967. It reads asfollows:

“[10. Penalty for being member of an unlawful association,etc.- Where an association is declared unlawful by notificationissued under section 3 which has become effective under sub-section (3) of that section,-

(a) person, who

(i) is and continues to be member of such association; or

(ii) takes part in meetings of such association; or

(iii) contributes to, or receives or solicits any contributionfor the purpose of, such association; or

(iv) in any way assists the operations of such association,shall be punishable with imprisonment for term which may extendto two years, and shall also be liable to fine; and

(b) person, who is or continues to be member of suchassociation, or voluntarily does an act aiding or promoting in anymanner the objects of such association and in either case is inpossession of any unlicensed firearms, ammunition, explosive orother instrument or substance capable of causing mass destructionand commits any act resulting in loss of human life or grievousinjury to any person or causes significant damage to any property,(i) and if such act has resulted in the death of any person, shall bepunishable with death or imprisonment for life, and shall also beliable to fine;

(ii) in any other case, shall be punishable with imprisonmentfor term which shall not be less than five years but which mayextend to imprisonment for life, and shall also be liable to fine.]”

6. The aforesaid provision was inserted by way ofamendment with effect from 21/09/2004. Relying upon the said

provision, it is contended by him that if the view expressed in ArupBhuyan (supra) and Sri Indra Das (supra) is allowed to remain inthe field various laws in other enactments would be affected. It isfurther urged by him that the Court has erroneously referred to itsearlier judgment in Raneef’s case wherein the basic fact wasdifferent, namely, the Social Democratic Party of India (SDPI)was not banned organization. The learned Solicitor General wouldimpress upon us that once an organization is banned, Section 10 ofthe 1967 Act would come into play. Learned Solicitor General hasalso drawn our attention to certain paragraphs in Raneef’s casewherein it has been opined even assuming the PFI is an illegalorganization, yet it remains to be considered whether all themembers of the Organization can be categorically held to be guilty.It is put forth by him that the said judgment did not affect theprovisions in other enactments inasmuch as the PFI was not abanned Organization, but after the decisions in Arup Bhuyan(supra) and Sri Indra Das (supra), the Trial Courts and the HighCourts are relying on the said decisions by giving emphasis on thefacet of mens rea. The submission in essence, is that had theUnion of India been impleaded as party it could have put forth itsstand before the Court and then possibly such reading down of theprovision would not have been required.

7. Mr. Jaideep Gupta, learned senior counsel appearing forthe State of Assam, supporting the stand put forth by the Union ofIndia has urged that if such an interpretation is allowed to standthe terrorism would spread and it will be difficult on the part of theState to control the said menace. It is further canvassed by himthat the abuse of process of law would not affect the constitutionalvalidity and that to when it is not under assail.

10. The crux of the matter as submitted by Mr. Ranjit Kumar,learned Solicitor General for Union of India, is that when anyprovision in Parliamentary legislation is read down, in the absenceof Union of India it is likely to cause enormous harm to the interestof the State as in many cases certain provisions have been engraftedto protect the sovereignty and integrity of India.

11. The learned Solicitor General would contend that theauthorities which have been placed reliance upon in both the

judgments by the two-Judge Bench are founded on Bill of Rightswhich is different from Article 19 of the Constitution of India.

He has referred to Article 19(1)(c) and 19(4) of theConstitution.

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) whichis as follows:

(4) Nothing in sub-clause (c) of the said clause shall affectthe operation of any existing law in so far as it imposes, or preventthe State from making any law imposing, in the interests of 4 [thesovereignty and integrity of India or] public order or morality,reasonable restrictions on the exercise of the right conferred bythe said sub-clause.”

Relying upon the same it is highlighted by the learnedSolicitor General that the Court has not kept this aspect in viewwhile placing heavy reliance on the foreign authorities which arefundamentally not applicable to the interpretative process of theprovisions which have been enacted in consonance with theprovisions of the Constitution of India.

Regard being had to the important issue raised by the learnedSolicitor General and Mr. Jaideep Gupta, learned senior counselfor the State of Assam, we think it appropriate that the mattershould be considered by larger Bench. Let the Registry placethe papers before the Hon’ble the Chief Justice of India forappropriate 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 inRaneef (supra) and Arup Bhuyan (supra), have been correctly decidedand whether “active membership” is required to be proven over andabove the membership of banned organization under the UAPA, 1967.Another issue which is required to be considered by this Bench is whetherAmerican decisions concerning freedom of speech referred to in thecase of Raneef (supra) to which this Court agreed could have beenrelied upon while considering the right to freedom of speech available

under the Constitution of India more particularly Article 19(1)(c) and19(4) of the Constitution of India? Another question which is required tobe considered is whether this Court was justified in reading down of aprovision (Section 10(a)(i) of the UAPA Act, 1967) without impleadingthe Union of India as party and more particularly when the constitutionalvalidity of the aforesaid provision was not called in question?

2.5 While appreciating the submissions on behalf of the respectiveparties 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, andthe expressions terrorism and terrorist shall be construedaccordingly;

(l) terrorist gang means any association, other than terroristorganisation, whether systematic or otherwise, which is concernedwith, or involved in, terrorist act;

(m) terrorist organisation means an organisation listed in the [9][FirstSchedule] or an organisation operating under the same name asan organisation so listed;

(o) unlawful activity, in relation to an individual or association, meansany action taken by such individual or association (whether bycommitting an act or by words, either spoken or written, or bysigns or by visible representation or otherwise),—

(i) which is intended, or supports any claim, to bring about, onany ground whatsoever, the cession of part of the territory ofIndia or the secession of part of the territory of India fromthe Union, or which incites any individual or group of individualsto bring about such cession or secession; or

(ii) which disclaims, questions, disrupts or is intended to disruptthe sovereignty and territorial integrity of India; or

(iii) which causes or is intended to cause disaffection againstIndia;

(p) unlawful association means any association,—

(i) which has for its object any unlawful activity, or whichencourages 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 punishableunder section 153A (45 of 1860) or section 153B of the IndianPenal Code, or which encourages or aids persons to undertakeany such activity, or of which the members undertake any suchactivity:

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 inthe Official Gazette, declare such association to be unlawful.

(2) Every such notification shall specify the grounds on which it isissued and such other particulars as the Central Government mayconsider necessary:

Provided that nothing in this sub-section shall require theCentral Government to disclose any fact which it considers to beagainst the public interest to disclose.

(3) No such notification shall have effect until the Tribunal has, byan order made under section 4, confirmed the declaration madetherein and the order is published in the Official Gazette:

Provided that if the Central Government is of opinion thatcircumstances exist which render it necessary for that Governmentto declare an association to be unlawful with immediate effect, itmay, for reasons to be stated in writing, direct that the notificationshall, subject to any order that may be made under section 4, haveeffect from the date of its publication in the Official Gazette.

(4) Every such notification shall, in addition to its publication in theOfficial Gazette, be published in not less than one daily newspaperhaving circulation in the State in which the principal office, if any,of the association affected is situated, and shall also be served onsuch association in such manner as the Central Government maythink fit and all or any of the following modes may be followed ineffecting such service, namely:—

(a) by affixing copy of the notification to some conspicuouspart of the office, if any, of the association; or

(b) by serving copy of the notification, where possible, on theprincipal 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 activitiesof 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 anotification issued under sub-section (1) of section 3, the CentralGovernment shall, within thirty days from the date of the publicationof the notification under the said sub-section, refer the notificationto the Tribunal for the purpose of adjudicating whether or not thereis sufficient cause for declaring the association unlawful.(2) Onreceipt of reference under sub-section (1), the Tribunal shallcall upon the association affected by notice in writing to showcause, within thirty days from the date of the service of such notice,why the association should not be declared unlawful.(3) Afterconsidering the cause, if any, shown by the association or the office-bearers or members thereof, the Tribunal shall hold an inquiry inthe manner specified in section 9 and after calling for such furtherinformation as it may consider necessary from the CentralGovernment or from any office-bearer or member of theassociation, it shall decide whether or not there is sufficient causefor declaring the association to be unlawful and make, asexpeditiously as possible and in any case within period of sixmonths from the date of the issue of the notification under sub-section (1) of section 3, such order as it may deem fit eitherconfirming the declaration made in the notification or cancellingthe 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 OfficialGazette, constitute, as and when necessary, tribunal to be knownas the “Unlawful Activities (Prevention) Tribunal” consisting ofone person, to be appointed by the Central Government:

Provided that no person shall be so appointed unless he is Judgeof High Court.

(2) If, for any reason, vacancy (other than temporary absence)occurs in the office of the presiding officer of the Tribunal, then,the Central Government shall appoint another person in accordanceBwith the provisions of this section to fill the vacancy and theproceedings may be continued before the Tribunal from the stageat which the vacancy is filled.

(3) The Central Government shall make available to the Tribunalsuch staff as may be necessary for the discharge of its functionsunder this Act.

(4) All expenses incurred in connection with the Tribunal shall bedefrayed out of the Consolidated Fund of India.

(5) Subject to the provisions of section 9, the Tribunal shall havepower to regulate its own procedure in all matters arising out ofthe discharge of its functions including the place or places at whichit will hold its sittings.

(6) The Tribunal shall, for the purpose of making an inquiry underthis Act, have the same powers as are vested in civil court underthe Code of Civil Procedure, 1908 (5 of 1908), while trying suit,Ein respect of the following matters, namely:

(a) the summoning and enforcing the attendance of any witnessand examining him on oath;

(b) the discovery and production of any document or othermaterial object producible as evidence;

(c) the reception of evidence on affidavits;

(d) the requisitioning of any public record from any court oroffice;

(e) the issuing of any commission for the examination ofwitnesses.

(7) Any proceeding before the Tribunal shall be deemed to be ajudicial proceeding within the meaning of sections 193 and 228 ofthe Indian Penal Code (45 of 1860) and the Tribunal shall be deemedto be civil court for the purposes of section 195 and [ChapterXXVI] of the [Code].

Section 6 – Period of operation and cancellation ofnotification -

(1) Subject to the provisions of sub-section (2), notification issuedunder section 3 shall, if the declaration made therein is confirmedby the Tribunal by an order made under section 4, remain in forcefor period of [five years] from the date on which the notificationbecomes effective.(2) Notwithstanding anything contained in sub-section (1), the Central Government may, either on its own motionor on the application of any person aggrieved, at any time, cancelthe notification issued under section 3, whether or not the declarationmade therein has been confirmed by the Tribunal.”

3. Shri Tushar Mehta, learned Solicitor General has also taken usto the background to the UAPA and the enactment of Article 19(1) and19(4) of the Constitution of India vide Constitution (Sixteenth Amendmnt) Act, 1963. It is submitted that exception to the freedom to formassociations under Article 19(1) was inserted in the form of soveregnty and integrity of India in Article 19(4), after the National Integration ouncil appointed Committee on National Integration and Regionalisation.The said committee was to look into the aspect of putting reasonablerestrictions in the interests of the sovereignty and integrity ofIndia. It is submitted that pursuant to the acceptance of the recommendatins of the Committee, the Constitution (Sixteenth Amendment) Act, 1963 as enacted to impose, by law, reasonable restrictions in the interests ofthe sovereignty and integrity of India. Article 19(1)(c) and 19(4) of theConstitution of India reads as follows:

“19.(1)(c) to form associations or unions;”

The said is further restricted by Article 19(4) which is asfollows:

19(4) Nothing in sub-clause (c) of the said clause shall affectthe operation of any existing law insofar as it imposes, or preventthe State from making any law imposing, in the interests of thesovereignty and integrity of India or public order or morality,reasonable restrictions on the exercise of the right conferred bythe said sub-clause.”

Relying upon the same it is highlighted by the learnedSolicitor General that the Court has not kept this aspect in viewwhile placing heavy reliance on the foreign authorities which are

520SUPREME COURT REPORTS

Afundamentally not applicable to the interpretative process of theprovisions which have been enacted in consonance with theprovisions of the Constitution of India.”

3.1 It is submitted that in order to implement the provision of the1963 Act, the Unlawful Activities (Prevention) Bill was introduced in theBParliament. The main objective of the UAPA is to make powers availablefor dealing with activities directed against the integrity and sovereigntyof India. He has taken us to the preamble and the objects and reasonsfor enactment of the UAPA. It is submitted that to achieve the objectand purpose for which the UAPA has been enacted, Section 10(a)(i)provides that where an association is declared unlawful by notificationCissued under Section 3 which has become effective under sub-section(3) of that Section, person, who is and continues to be member ofsuch association shall be punishable with imprisonment for term whichmay extend to two years, and shall also be liable to fine. It is submittedthat therefore so long as Section 10(a)(i) stands person who is orDcontinues to be member of such association shall be liable to be punished.It is submitted that Section 10(a)(i) does not require any further overt actand/or mens rea. It is submitted that mere membership of declaredunlawful association, declared unlawful under Section 3 is sufficient towarrant the prosecution and the conviction.

E3.2 It is submitted that under the provisions of the UAPA, 1967before an organization/association is declared as unlawful under Section3 of the UAPA the procedure as required under the UAPA namely Section3 of the UAPA is required to be followed. It is submitted that eventhereafter and after any association/organization is declared as unlawfulunder Section 3 of the UAPA, such association which has been declaredFunlawful by Notification issued under sub-section (1) of Section 3,within 30 days from the date of the publication of the notification, theCentral Government is required to refer to the Tribunal for the purposeof adjudicating whether or not, there is sufficient cause for declaring theassociation unlawful. It is submitted that as per Section 4(2) on receipt ofGa reference under sub-section (1) of 4, the Tribunal shall thereafter callupon the association affected by notice in writing to show cause within30 days from the date of the service of such notice, why the associationbe not declared unlawful? It is submitted that thereafter and afterconsidering the cause, if any, shown by the association or the office-bearers or members thereof, the Tribunal is required to hold an inquiry inH

the manner specified in Section 9 and after calling for such furtherinformation as it may consider necessary from the Central Governmentor from office-bearer or member of the association, the Tribunal shalldecide whether or not there is sufficient cause for declaring theassociation to be unlawful and thereafter may pass such order as it maydeem fit either confirming the declaration made in the notification orcancelling the same. It is submitted that the order of the Tribunal madeunder sub-section (3) shall have to be published in the Official Gazette.3.3 Taking us to the relevant provisions of UAPA on declarationof any organization/association as “unlawful” namely Sections 3 to 6,learned Solicitor General has submitted that from perusal of theaforesaid provisions/sections, it is clear that the declaration of anorganization as an “unlawful organization” is not on the basis of anexecutive diktat. It is submitted that such designation is actually productof robust adversarial process wherein ample opportunity is given to theorganization to appeal to the better senses of judicially trained mind inorder to justify its aims, objectives and activities being legal and not“unlawful” within the constitutional setup. It is submitted that the samemust have bearing whilst deciding any question of criminalization of“mere membership”.

4. Now so far as the correctness of the observations made by thisCourt in the case of Raneef (supra) and Arup Bhuyan (supra) thatwhile considering the offences under Sections 10(a)(i) the prosecutionhas to prove the “active membership” of any person accused of being amember of banned organization, it is submitted that in the case of ArupBhuyan (supra) this Court has just followed the observations made inthe earlier decision in the case of Raneef (supra) in which this Courtjust accepted and followed the American decisions referred to on thefreedom of speech applicable in America and considering the Americandoctrine on freedom of speech. It is submitted that as such this Courtought not to have straight way followed and/or accepted the Americandoctrine on freedom of speech without taking into consideration theConstitutional provisions so far as the India is concerned, more particularlyArticle 19(1)(c) and 19(4) of the Constitution. It is submitted that thisCourt in the case of Babulal Parate vs. State of Maharashtra, (1961)3 SCR 423 has specifically rejected the importing of the Americandoctrine on freedom of speech and specifically rejected the said importingin the context of ‘determining criminality’ by way of two Constitution

ABench judgments which have not even been considered by the learnedBenches hearing the case in Raneef (supra) and Arup Bhuyan (supra).The learned Solicitor General has heavily relied upon paragraphs 23 to28 of the decision in the case of Babulal (supra) and paragraphs 16 &17 of the decision in the case of Madhu Limaye vs. Sub-DivisionalMagistrate, (1970) 3 SCC 746.B

4.1 Learned Solicitor General has also relied upon the decisions ofthis Court in the case of Supdt., Central Prison vs. Dr. Ram ManoharLohia, (1960) 2 SCR 821 (paragraphs 9 to 11) and in the case ofRamlila Maidan Incident, In re, (2012) 5 SCC 1 on the reliance tobe placed on American constitutional position in context of public orderCand free speech. It is submitted that in the aforesaid it is specificallyobserved that the American doctrine adumbrated in Schenck case cannotbe imported or applied. It is observed that under our Constitution, thisright - freedom of speech is not an absolute right but is subject to therestrictions. It is submitted that it is further observed that thus the positionDunder our Constitution is different. It is observed by this Court in theaforesaid decisions that fundamental right enshrined in the Constitutionitself being made subject to reasonable restrictions, the laws so enactedto specify certain restrictions on the right to freedom of speech andexpression have to be construed meaningfully and with the constitutionalobject in mind. It is submitted that it is further observed that thus there isEa marked distinction in the language of law, its possible interpretation andapplication under the Indian and the US Laws.4.2 It is further submitted by the learned Solicitor General that onnumerous occasions this Court declined to import the American doctrineof such subjects. Reliance is placed on the decisions of this Court in theFcase of Joseph Kuruvilla Vellukunnel vs. Reserve Bank of India,1962 Supp (3) SCR 632 (para 50 & 75); M.C. Mehta vs. Union ofIndia (Shriram – Oleum Gas), (1987) 1 SCC 395 (para 29); AshokaKumar 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 thattherefore the American doctrine of “clear and present danger” [Schenckvs. United States, 249 U.S. 47 (1919)] and “imminent lawless action”[Brandenburg vs. Ohio, 395 U.S. 444 (1969)] are alien to Indianconstitutional law.H

4.5 Making above submissions, it is submitted that the observationsmade by this Court in Raneef (supra) and Arup Bhuyan (supra)following and/or relying upon the American doctrines on freedom ofspeech may be overruled and the statutory position be reaffirmed.

5. Now so far as reading down Section 3(5) of Terrorist andDisruptive Activities (Prevention) Act, 1987, which is pari materia toSection 10(a)(i) of UAPA Act, 1967 and reading down the said provisionto the extent by observing that mere membership of banned organizationwill not make person guilty unless he resorts to violence or incitespeople to violence or creates public disorder by violence or incitement toviolence and that mere membership of banned organization will notincriminate person is concerned, it is vehemently submitted by ShriTushar Mehta, learned Solicitor General that as such in absence ofchallenge to the relevant provisions, more particularly Section 10(a)(i) ofthe UAPA, 1967, such reading down was not permissible. It is submittedthat as such in the case of Raneef (supra), which has been subsequentlyfollowed in the cases of Arup Bhuyan (supra) and Indra Das v. Stateof Assam, (2011) 3 SCC 380, this Court was considering the bailapplication and the constitutional validity of Section 10(a)(i) of the UAPAAct was not under challenge.

5.1 Learned Solicitor General has relied upon the decision of thisCourt in the case of Subramanian Swamy & Others v. Raju throughMember, Juvenile Justice Board & Another, reported in (2014)8 SCC 390 on as to when the power of reading down of provision canbe exercised. Reliance is placed on paragraphs 59 to 62 of the saidjudgment. 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 objectand purpose for which UAPA Act was enacted and taking intoconsideration the plain and literal meaning of statute and in the absenceof any constitutional challenge, it was impermissible for this Court toread down the statute. It is submitted that there was no occasion to“read down”

Section 10 of the UAPA Act in absence of constitutionalchallenge.

6. Shri Vinay Navare, learned Senior Counsel appearing on behalfof the State of Assam, while adopting the submissions made by ShriTushar Mehta, learned Solicitor General, has in addition submitted that

Aunder the scheme of statute (UAPA) every effort is made to ensurethat every member of the association is made aware of the fact thatsuch association is declared as unlawful.

6.1 It is further submitted that the language employed in Section10 is very significant in the present context. It provides that “where anBassociation is declared as unlawful by notification under Section 3 whichhas become effective under sub-section (3) of that Section.” It is submittedthat therefore it is only after notification under Section 3 has becomeeffective 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 member of such association’. It is submittedCthat so if person ‘has been’ member but does not ‘continue to be’ amember after declaration, that does not attract mischief under Section10. The intention in the Section is that not only is he member on the daywhen the association is declared unlawful but he continues to be member.It is submitted that therefore person who is member or wishes to beDa member is well aware of the fact that such an association is declaredunlawful and if he still wishes to continue being part of such an unlawfulassociation it shows clear and conscious intention on his part and Section10 of the UAPA Act penalises this act of mere membership with suchunlawful association.E

6.2 It is further submitted that Section 38 of the UAPA Act, 1967provides that person who associates himself or professes to be associatedwith terrorist organization with intention to further its activities commitsan offence relating to the membership of terrorist organization. It issubmitted that therefore it is seen that in case of terrorist organizationFmere membership is not sufficient but there has to be an act with intentionto further the activities of the terrorist organization which is not the caseunder Section 10 with an unlawful association.

6.3 It is submitted that there is clear distinction between theprovisions under Section 10 which punish mere membership of an unlawfulGassociation and Section 38 which do not punish passive membership withterrorist organization. It is submitted that the reason is that Section 10has already undergone the rigours of Section 3 but Section 38 has notundergone the rigours of Section 3 and it is delegated legislation involvinginclusion of name of an organisation in the schedule. It is submitted thateven if you are member, it gives an opportunity in Section 38 that theH

terrorist organization was not terrorist organization at the time whenyou became 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 totime.

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 haveprayed to hold that the observations/decisions of this Court in the casesof Raneef (supra), Arup Bhuyan (supra) and Indra Das (supra)taking the view that mere membership of banned organization will notincriminate person unless he resorts to violence or incites people toviolence or does an act intending to create disorder or disturbance ofpublic peace by resort to violence is not good law, in view of the specificprovision under Section 10(a)(i) of the UAPA Act, 1967, theconstitutionality of which is not under challenge and even otherwise onmerits also looking to the object and purpose of enacting the UAPA Act,1967.7. Shri Sanjay Parikh, learned Senior Counsel appearing for theapplicant – People’s Union for Democratic Rights has heavily relied uponthe subsequent decision of this Court in the case of Indra Das (supra).It is submitted that in the said decision, after following the decisions ofthis Court in the cases of Raneef (supra) and Arup Bhuyan (supra),this Court has rightly interpreted Section 3(5) of TADA Act, 1987 andSection 10(a)(i) of the UAPA Act, 1967 which is in consonance withArticles 14, 19 and 21 of the Constitution. It is submitted that in the caseof Indra Das (supra), this Court has observed and held as under:

“a. statutory provisions cannot be read in isolation, but have to beread in consonance with the fundamental rights guaranteed by ourConstitution.

b. The Constitution is the highest law of the land and no statutecan violate it. If there is statute which appears to violate it wecan either declare it unconstitutional or we can read it down tomake it constitutional

c. Had there been no Constitution having fundamental rights in itthen of course plain and literal meaning could be given to Section3(5) of TADA or Section 10 of the Unlawful Activities (Prevention)

AAct. But since there is Constitution in our country providing fordemocracy and fundamental rights we cannot give these statutoryprovisions such meaning as that would make themunconstitutional.”

7.1 It is submitted that in the case of Indra Das (supra), thisBCourt has interpreted the relevant provisions of TADA and UAPA tobring them in conformity with the Constitution.

7.2 It is further submitted that this Court has on several occasionsinterpreted provisions to bring them in consonance with the Constitutionand even by reading down to save the provisions from unconstitutionality.CIt is submitted that in the case of People’s Union for Civil Libertiesv. Union of India, (2004) 9 SCC 580 (paragraphs 48 & 49), thisCourt has read “mens rea” into the statute to save it fromunconstitutionality.

7.3 It is submitted that in the case of State of Gujarat v. ShyamlalDMohanlal Choksi, 1965 (2) SCR 457, this Court read down Section94 of the Cr.P.C. to exclude persons accused from its ambit. It is submittedthat Shyamlal Mohanlal Choksi (supra) was special leave petitionfrom High Court decision and the Union of India was not party tothose proceedings.

7.4 On the submission made on behalf of the Union of India thatEwithout hearing the Union of India, this Court ought not to have and/orcould not have read down Section 10(a)(i) of the UAPA Act, 1967 orSection 3(5) of TADA Act, 1987, Shri Sanjay Parikh, learned SeniorCounsel has relied upon the decision of this Court in the case of SanjeevCoke Manufacturing Company v. M/s Bharat Cooking CoalFLimited, reported in (1983) 1 SCC 147 (paragraph 25). It issubmitted that in the said decision, it is observed and held by this Courtthat “no one may speak for the Parliament and Parliament is never beforethe Court.” It is further observed that “After Parliament has said what itintends to say, only the Court may say what the Parliament meant to say,none else.” It is further observed that “once statute leaves ParliamentGHouse, the Court’s is the only authentic voice which may echo (interpret)the Parliament and the Court will do the same with reference to thelanguage of the statute and other permissible aids.” It is submitted thatwhile 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 inHlight of Articles 14, 19 and 21 of the Constitution. It is submitted that

judgments under reference correctly hold that “mere membership of abanned organization will not make person criminal unless he resortsto violence or incites people to violence or creates public disorder byviolence 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 ArupBhuyan (supra), this court ought not to have relied upon the US SupremeCourt judgments, Shri Sanjay Parikh, learned Senior Counsel has submittedthat 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 hasrelied upon the observations made in paragraph 41 made in the case ofSherya Singhal (supra).

7.6 It is submitted that the decision of this Court in the case ofShreya Singhal (supra) has been recently relied upon and consideredby one of the Hon’ble Judge of the Constitution Bench in the case ofKaushal Kishor v. State of Uttar Pradesh and Others, 2023 SCCOnLine SC 6, while concurring on the question that the restrictionsunder Article 19(2) are exhaustive.

7.7 It is further submitted by Shri Sanjay Parikh, learned SeniorCounsel appearing on behalf of the applicant that Shreya Singhal (supra)is the culmination of an unbroken line of Indian precedent stipulating thatspeech or association can be prevented or punished only if,

•Speech or association is ‘intended’ or has the ‘tendency’ todisturb ‘public order’, ‘sovereignty and integrity of India’,‘security of the state’, or one of the other permitted groundof restrictions under Article 19; and

•The connection between the speech or association and the‘intended’ or likely effect on ‘public order’, ‘sovereigntyand integrity of India’ or ‘security of the state’ is “proximate”not “far- fetched, hypothetical or problematical or too remotein the chain of its relation.”

7.8 Shri Parikh, learned Senior Counsel has relied upon theobservations made by the Federal Court in the case of Niharendu DuttMajumdar v. The King Emperor 1942 F.C.R. 38 taking the viewthat “the acts or words complained of must, either incite to disorder ormust be such as to satisfy reasonable men that that is their intention ortendency.” It is submitted that the said decision has been approved and

Aadopted by this Court in the case of Kedar Nath v. State of Bihar, AIR1962 SC 955. He has relied upon the observations made in paragraph26 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 notBsufficient for law restricting freedom of speech and expression to beunder one of the permitted heads of restriction enumerated under Article19(2), but must also have proximate link to it. The Patna High Courthad found that pamphlet whose central theme was “to bring about abloody revolution and change completely the present order of things”,fell foul of provision targeting “words or signs or visible representationsCwhich incite, or encourage, or tend to incite to or encourage the commissionof any offence of murder or any cognizable offence involving violence.”It is submitted that this Court however found that for rhetoric of the kindused in the pamphlet to be justifiably restricted, the State would have toestablish that it was addressed to an excited mob or other such exceptionalDcircumstance.

7.10 Shri Sanjay Parikh, learned Senior Counsel has also heavilyrelied upon the observations made in paragraph 45 in the case ofS. Rangarajan v. P. Jagjivan Ram and others, (1989) 2 SCC 574,which read as under:E

“45. …. There does indeed have to be compromise betweenthe interest of freedom of expression and special interests. Butwe cannot simply balance the two interests as if they are of equalweight. Our commitment of freedom of expression demands thatit cannot be suppressed unless the situations created by allowingFthe 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 theexpression. The expression of thought should be intrinsicallydangerous to the public interest. In other words, the expressionshould be inseparably locked up with the action contemplated likeGthe equivalent of “spark in 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 ofthe term ‘public order’ in Clause (4) of Article 19, that allows for reasonablerestrictions on the right to Freedom of Association. It is submitted thatH

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. Therecan be no doubt that the said words must have the same meaning in bothclauses (2) and (4).” It is further observed that “…a restriction can besaid to be in the interests of public order only if the connection betweenthe restriction and the public order is proximate and direct. Indirect orfar-fetched or unreal connection between the restriction and public orderwould not fall within the purview of the expression “in the interests ofpublic 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 thisCourt that only where the written or spoken words have the tendency orintention of creating public disorder or disturbance of law and order oraffect public tranquility, that the law needs to step in to prevent such anactivity. It is submitted that it is further observed that the intention tocause disorder or incite people to violence is the sine qua non of theoffence under Section 153-A of the IPC and the prosecution has to provethe 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 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) willalso apply to Section 10(a)(i) of the UAPA Act, 1967.

It is further submitted that in fact, even at the Constituent Assemblydebates, Dr. B.R. Ambedkar clarified that

“…it is wrong to say that fundamental rights in America areabsolute. The difference between the position under the AmericanConstitution and the Draft Constitution is one of form and not ofsubstance. That the fundamental rights in America are not absoluterights is beyond dispute. In support of every exception to thefundamental rights set out in the Draft Constitution, one can referto at least one judgment of the United States Supreme Court.

AWhat the Draft Constitution has done is that instead of formulatingfundamental rights in absolute terms and depending upon ourSupreme Court to come to the rescue of Parliament by inventingthe doctrine of police power, it permits the State directly to imposelimitations upon the fundamental rights. There is really no differencein the result. What one does directly the other does indirectly. InBboth cases, the fundamental rights are not absolute.”

7.14 It is submitted that the submissions made on behalf of theUnion of India by the Solicitor General are mostly on non-applicability ofAmerican cases and they do not deal with the applicability of the principleevolved in American cases and their acceptance by the Indian SupremeCCourt.

8. It is further submitted that even otherwise the provisions ofSection 10(a)(i) of the UAPA Act and Section 3(5) of the TADA Act arevague and overbroad and will have chilling effect and therefore thisCourt in the aforesaid three decisions have rightly read down the saidDprovisions to bring them in consonance with Articles 14, 19 and 21 of theConstitution of India.

8.1 It is further submitted by Shri Sanjay Parikh, learned SeniorCounsel that in the recent decision of this Court in the case of ThawahaFasal v. Union of India, 2021 SCC OnLine SC 1000, this Court hasEobserved and held that “mere association with terrorist organization isnot sufficient to attract Section 38 and mere support given to terroristorganization is not sufficient to attract Section 39.” It is submitted that itis further observed that “association and the support have to be withintention of furthering the activities of terrorist organization.”

8.2 It is further submitted that even if there can be restrictionsunder Article 19(2), in that case also, the restrictions should be reasonableand 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 theGview 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/intervenerShri Tushar Mehta, learned Solicitor General has submitted that so far as

the submissions made by Shri Sanjay Parikh, learned Senior Counsel onreasonability and proportionality, it is submitted that detailed adversarialjudicial process prior to declaration of organization as banned organizationis required to be undertaken under Sections 3 and 4 of the UAPA, 1967.It is submitted that the said judicial adversarial process ensures inbuiltreasonability and proportionality and ensures that such provisions arejust, fair and reasonable.

9.1 Now so far as the submission made by Shri Parikh, learnedsenior counsel on mens rea element and reliance placed upon thejudgments in criminal law which have held mens rea an essential ingredientof crime, it is submitted by Shri Mehta, learned Solicitor General that thequestion of mens rea may depend on the facts and circumstances ofeach case and would have to be adjudicated during trial. It is submittedthat the judgments in Raneef (supra), Arup Bhuyan (supra) and IndraDas (supra) as such do not deal with the concept of mens rea andneither do the judgments in America on which the reliance has beenplaced.9.2 Now so far as the reliance placed upon the decisions relatingto IPC and more particularly the decisions of this Court in the case ofKedar Nath Singh (supra), Balwant Singh (supra) and Bidal (supra),it is submitted that the said reliance may not be appropriate as the offencesunder the IPC are standalone offences and are applied for far widercanvass than the offence of membership of banned organization underthe UAPA and TADA. It is submitted that the banning of an organizationunder the UAPA takes place after detailed adversarial judicial processwhich is given wider publicity, thereby ensuring reasonableness, limitedapplication and availability of information with regard to the inherentlylegal nature of such banned organization. It is submitted that the same isabsent in IPC offences which can be applied by any police officerinvestigating any offence, without there being the presence of any bannedorganization or the procedure preceding the banning of such organization.It is submitted that therefore there is vast differences between UAPAand IPC offences. It is submitted that in the present case the Parliamentin its wisdom and taking into consideration the sovereignty of India hasthought it fit to enact the UAPA and provide under Section 10(a)(i) thatmere member of the banned organization itself is an offence.

9.3 Now so far as the submission of Shri Praikh, learned SeniorCounsel on vagueness and possibility of misuse of Section 10(a)(i), it is

Asubmitted that as observed and held by this Court in catena of decisionsvagueness and possibility of misuse cannot be ground for reading downa declaration of unconstitutionality. It is submitted that possibility of abuse/misuse of law would not be relevant consideration while consideringthe constitutionality of provision.BReliance is placed on the decisions of this Court in the case ofKedar Nath Singh vs. State of Bihar, AIR 1962 SC 955;Kesavananda Bharti vs. State of Kerala, (1973) 4 SCC 225; T.N.Education Deptt. Ministerial and General Subordinate ServicesAssn. vs. State of Tamil Nadu, (1980) 3 SCC 97 and MafatlalIndustrial Ltd. vs. Union of India, (1997) 5 SCC 536. It is submittedCthat in the aforesaid decisions it is held that merely because powermay sometimes be abused, it is no ground for denying the existence ofpower.

9.4 Now so far as the reliance placed upon the decision ofThawaha Fasal vs. Union of India, (2021) SCC Online SC 1000 byDShri Parikh, learned Senior Counsel, it is vehemently submitted by ShriMehta, learned Solicitor General that the said decision shall not beapplicable while considering the offence under Section 10(a)(i) of UAPA,1967. It is submitted that in the said judgment this Court was dealing withthe offence under Section 38 of UAPA, 1967 and was not dealing withEthe provisions concerning membership. Sections 38 and 39 of the UAPA,1967 are worded completely differently as compared to the provisionsconcerning criminalization of membership of banned organization. It issubmitted that therefore any observations made while considering thedifferent provision/offence may not be stricto sensu applicable whileconsidering Section 10(a)(i) of the UAPA, 1967.F

Making above submissions, it is prayed to declare that theobservations made by this Court in the case of Raneef (supra), ArupBhuyan (supra) and Indra Das (supra) are not good law taking theview that mere membership of banned organization will not make aperson guilty unless he resorts to violence or incites people to violenceGor creates public disorder by violence or incitement to violence.

10. Heard Shri Tushar Mehta, learned Solicitor General appearingon behalf of Union of India, Shri Vinay Navare, learned Senior Cousel appeaing for the State of Assam and Shri Sanjay Parikh, learnedSenior Counsel appearing on behalf of the appellant/intervener.H

10.1 At the outset, it is required to be noted that pursuant to theorder passed by this Court reported in the case of Arup Bhuyan vs.State of Assam, (2015) 12 SCC 702, the present reference is beforethe larger Bench. The present reference to the larger Bench is made onthe request made on behalf of the Union of India and the State of Assamdoubting the correctness of the decisions of this Court in the case ofRaneef (supra) and Arup Bhuyan (supra) taking the view on readingdown Section 10(a)(i) that mere membership of banned organizationwill not make person criminal/guilty unless he resorts to violence orincites people to violence or creates public disorder by violence orincitement to violence.

10.2 Therefore, this Court in the present reference is required toconsider the correctness of the decisions of this Court in Raneef (supra),Arup Bhuyan (supra) and Indra Das Singh (supra) to the extent asabove.

10.3 Section 10 of the UAPA, 1967 reads as under:

“Section 10 in The Unlawful Activities (Prevention) Act,1967

1[10. Penalty for being member of an unlawful association, etc.—Where an association is declared unlawful by notification issuedunder section 3 which has become effective under sub--section(3) of that section,—

(a) person, who-—

(i) is and continues to be member of such association; or

(ii) takes part in meetings of such association; or

(iii) contributes to, or receives or solicits any contri-bution for thepurpose of, such association; or

(iv) in any way assists the operations of such association, shall bepunishable with imprisonment for term which may extend to twoyears, and shall also be liable to fine; and

(b) person, who is or continues to be member of such association,or voluntarily does an act aiding or promoting in any manner theobjects of such association and in either case is in possession ofany unlicensed firearms, ammunition, explosive or other instrumentor substance capable of causing mass destruction and commits

[2023] 8 S.C.R.

Aany act resulting in loss of human life or grievous injury to anyperson or causes significant damage to any property,—

(i)and if such act has resulted in the death of any person, shall bepunishable with death or imprisonment for life, and shall also beliable to fine;B(ii)in any other case, shall be punishable with imprisonment for aterm which shall not be less than five years but which may extendto imprisonment for life, and shall also be liable to fine.]”

10.4 Having gone through the decision of this Court in the case ofRaneef (supra), it appears and cannot be disputed that in the said caseCthis Court was considering the bail application. The constitutional validityof Section 10 more particularly Section 10(a)(i) of the UAPA, 1967 wasnot under challenge before this Court. It is also required to be noted thateven the Union of India was not party and/or the Union of India wasnot even heard while deciding the case of Raneef (supra). Despite theDabove, this Court while deciding the bail application has made certainobservations that mere membership of banned organization will notmake person criminal and/or mere membership of bannedorganization cannot be an offence. In the case of Raneef (supra) thisCourt has heavily relied upon and followed the American Supreme Courtdecisions which were dealing with the relevant provisions of the AmericanELaws and/or the laws prevailing in the America. If the entire judgment inthe case of Raneef (supra) is seen except following the AmericanSupreme Court decisions in the case of Scales vs. United States [6 LEd 2d 782]; Elfbrandt vs. Russell [16 L Ed 2d 321] and Joint Anti-Fascist Refugee Committee vs. McGrath, [95 L Ed 817], thereFdoes not appear to be any further discussion on the constitutional validityand the validity of Section 10(a)(i) of UAPA which specifically providesthat if person was and continues to be member of the bannedorganization, he can be said to have committed an offence and he can bepunished. Therefore, as such the observations made by this Court in thecase of Raneef (supra) are to be treated having confined to the bailGmatter only. At this stage, it is required to be noted that as such inparagraph 8 this Court in the case of Raneef (supra) has specificallyobserved that “we are presently only considering the bail matter and arenot deciding whether the respondent is guilty or not”.

10.5 Now so far as the decision of this Court in the case of ArupHBhuyan vs. State of Assam, (2011) 3 SCC 377, taking the view that

mere membership of banned organization will not incriminate personunless he resorts to violence or incites people to violence and does an actintended to create disorder or disturbance of public peace by resort toviolence……., is concerned it is required to be noted that in the saiddecision this Court has just followed the decision in the case of Raneef(supra). In the said decision this Court has also considered some otherAmerican Judgments of the US Supreme Court (para 10 & 11).

10.6 From the judgment and order passed by this Court in the caseof Arup Bhuyan (Supra), it appears that after referring to the decisionsof the US Supreme Court in paras 10 & 11 thereafter this Court had readdown Section 3(5) of TADA and has observed that mere membership ofa banned organization will not incriminate person unless he resorts toviolence or incites people to violence and does an act intended to createdisorder or disturbance of public peace by resort to violence.

10.7 It is required to be noted that even while deciding ArupBhuyan (supra) neither the constitutional validity of Section 3(5) of theTADA nor the Union of India was heard. Even in both the aforesaiddecisions this Court had not taken into consideration Article 19(1)(c) andArticle 19(4) of the Constitution of India.

10.8 In the case of Indra Das (supra) this Court has just followedthe earlier decision in the case of Raneef (supra) and Arup Bhuyan(supra).

11. In light of the aforesaid factual aspects let us now consider thecorrectness of the decisions of this Court in the case of Raneef (supra),Arup Bhuyan (supra) and Indra Das (supra).

11.1 Now so far as the reading down of Section 10(a)(i) of theUAPA, 1967 by this Court in the case of Arup Bhuyan (supra) isconcerned, at the outset it is required to be noted that such reading downof the provision of statute could not have been made without hearingthe Union of India and/or without giving any opportunity to the Union ofIndia.

11.2 When any provision of Parliamentary legislation is read downin the absence of Union of India it is likely to cause enormous harm tothe interest of the State. If the opportunity would have been given to theUnion 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 infavour of Section 10(a)(i) of the UAPA including the object and purpose

Afor enactment of such provision and even the object and purpose ofUAPA. The submission made by Shri Parikh, learned Senior Counselrelying upon the decision of this Court in the case of Sanjeev Coke(supra) that it is ultimately for the Court to interpret and read down theprovision to save any provision from declaring as unconstitutional isconcerned, it is true that it is ultimately for the Court to interpret the lawBand/or particular statute. However, the question is not the power of theCourts. The question is whether can it be done without hearing the Unionof India?

11.3 Even otherwise in absence of any challenge to theconstitutional validity of Section 10(a)(i) of the UAPA there was noCquestion 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 thesaid provision.

11.4 Even otherwise as observed and held by this Court in theDcase of Subramanian Swamy and others vs. Raju through Member,Juvenile Justice Board and Anr., (2014) 8 SCC 390 reading downthe provision of statute cannot be resorted to when the meaning of aprovision is plain and unambiguous and the legislative intent is clear. ThisCourt has thereafter laid down the fundamental principle of “readingEdown doctrine” as under:

“Courts must read the legislation literally in the first instance. If onsuch reading and understanding the vice of unconstitutionality isattracted, the courts must explore whether there has been anunintended legislative omission. If such an intendment can beFreasonably implied without undertaking what, unmistakably, wouldbe legislative exercise, the Act may be read down to save itfrom unconstitutionality. At the cost of repetition, it is observedthat reading down particular statute even to save it fromunconstitutionality is not permissible unless and until theGconstitutional validity of such provision is under challenge and theopportunity is given to the Union of India to defend particularparliamentary statute”.

11.5 In view of the above in all the aforesaid three decisions, thisCourt ought not to have read down Section 10(a)(i) of the UAPA, 1967Hmore particularly when neither the constitutional validity of Section 10(a)(i)

of the UAPA, 1967 was under challenge nor the Union of India washeard.

12. As observed hereinabove and even it can be seen from thedecisions of this Court in the case of Arup Bhuyan (Supra) and Raneef(supra) that while deciding the abovesaid cases this Court has followedthe US Supreme Court decisions on freedom of speech and on meremembership without any criminality and/or overt act and meremembership be said to have committed an offence or not. Therefore, thenext question which is posed for consideration before this Court is whetherthis Court was justified/right in following the US Supreme Court judgmentswhich as such were on interpretation and/or considering the laws ofUnited States.

12.1 How far the decisions of US Supreme Court on “freedom ofspeech and/or the public order” can be made applicable vis-à-vis thelaws in India, few decisions of this Court on applicability of the USSupreme Court decisions vis-à-vis the laws applicable in India are requiredto be referred to and considered.

12.2 In the case of Babulal Parate vs. State of Maharashtra,(1961) 3 SCR 423, it is observed in paragraphs 23 to 27 as under:

“23. The argument that the test of determining criminality inadvance is unreasonable, is apparently founded upon the doctrineadumbrated in Scheneck case [Scheneck v. U.S., 249, US 47]that previous restraints on the exercise of fundamental rights arepermissible only if there be clear and present danger. It seems tous, however, that the American doctrine cannot be imported underour Constitution because the fundamental rights guaranteed underArticle 19(1) of the Constitution are not absolute rights but, aspointed out in State of Madras v. V.G. Row [(1952) 1 SCC 410 :1952 SCR 597] are subject to the restrictions placed in thesubsequent clauses of Article 19. There is nothing in the AmericanConstitution corresponding to clauses (2) to (6) of Article 19 ofour Constitution. The Fourteenth Amendment to the U.S.Constitution provides, among other things, that “no State shall makeor enforce any law which shall abridge the privileges or immunitiesof citizens of the United States; nor shall any State deprive anyperson of life, liberty, or property, without due process of law;

24. The framework of our Constitution is different fromthat of the Constitution of the United States. Then again, theSupreme Court of the United States has held that the privilegesand immunities conferred by the Constitution are subject to socialcontrol by resort to the doctrine of police power. It is in the light ofthis background that the test laid down in Scheneckcase [Scheneck v. U.S., 249, US 47] has to be understood.

25. The language of Section 144 is somewhat different. Thetest laid down in the section is not merely “likelihood” or“tendency”. The section says that the Magistrate must be satisfiedthat immediate prevention of particular acts is necessary tocounteract danger to public safety etc. The power conferred bythe section is exercisable not only where present danger exists butis exercisable also when there is an apprehension of danger.

26. Apart from this it is worthy of note that in Scheneckcase [Scheneck v. U.S., 249, US 47] the Supreme Court wasconcerned with the right of freedom of speech and it observed:

“It well may be that the prohibition of law abridging thefreedom of speech is not confined to previous restraints, althoughto prevent them may have been the main purpose…. We admitthat in many places and in ordinary times the defendants, in sayingall that was said in the circular, would have been within theirconstitutional rights. But the character of every act depends uponthe circumstances in which it is done.… The most stringentprotection of free speech would not protect man in falsely shoutingfire in theatre, and causing panic. It does not even protect aman from an injunction against uttering words that may have allthe effect of force…. The question in every case is whether thewords used are used in such circumstances and are of such anature as to create clear and present danger that they will bringabout the substantive evils that Congress has right to prevent. Itis question of proximity and degree.

27. Whatever may be the position in the United States itseems to us clear that anticipatory action of the kind permissibleunder Section 144 is not impermissible under clauses (2) and (3)of Article 19. Both in clause (2) (as amended in 1951) and inclause (3), power is given to the legislature to make laws placing

reasonable restrictions on the exercise of the rights conferred bythese clauses in the interest, among other things, of public order.Public order has to be maintained in advance in order to ensure itand, therefore, it is competent to legislature to pass law permittingan appropriate authority to take anticipatory action or placeanticipatory restrictions upon particular kinds of acts in anemergency for the purpose of maintaining public order. We must,therefore, reject the contention.”

12.3 In the case of Madhu Limaye vs. Sub-DivisionalMagistrate, (1970) 3 SCC 746, while reconsidering and affirmingthe judgment of Babulal Parate (supra), this Court considered in acombination of seven Hon’ble Judges, speaking through Mr. JusticeHidayatullah, J., has observed and held in paragraphs 16 & 17 asunder:

“16. We may here observe that the overlap of public orderand public tranquillity is only partial. The terms are not alwayssynonymous. The latter is much wider expression and takes inmany things which cannot be described as public disorder. Thewords “public order” and “public tranquillity” overlap to certainextent but there are matters which disturb public tranquillity withoutbeing disturbance of public order. person playing loud music inhis own house in the middle of the night may disturb publictranquillity, but he is not causing public disorder. “Public order” nodoubt also requires absence of disturbance of state of serenity insociety but it goes further. It means, what the Frunch designateorder publique, defined as an absence of insurrection, riotturbulence, or crimes of violence. The expression “public order”includes absence of all acts which are danger to the security ofthe State and also acts which are comprehended by the expression“order publique” explained above but not acts which disturb onlythe serenity of others.

17. The English and American precedents and legislationare not of such help. The Public Order Act, 1936 was passedbecause in 1936 different political organisations marched inuniforms causing riots. In America the First Amendment freedomshave no such qualifications as in India and the rulings are apt to bemisapplied to our Constitution.”

A12.4 Thereafter in the case of Supdt., Central Prison vs. Dr.Ram Manohar Lohia, (1960) 2 SCR 821, this Court had taken noteof the difference in the American Law and the Indian Law moreparticularly the restrictions under Article 19(2).

12.5 Thereafter in the case of Ramlila Maidan Incident, In re,B(2012) 5 SCC 1, it is observed and held in paragraphs 7 to 11 onapplicability of the American doctrine/US Supreme Court decisions asunder:

“7. In contradistinction to the above approach of the USSupreme Court, the Indian Constitution spells out the right tofreedom of speech and expression under Article 19(1)(a). It alsoprovides the right to assemble peacefully and without arms to everycitizen of the country under Article 19(1)(b). However, these rightsare not free from any restrictions and are not absolute in theirterms and application. Articles 19(2) and 19(3), respectively, controlthe freedoms available to citizen. Article 19(2) empowers theState to impose reasonable restrictions on exercise of the right tofreedom of speech and expression in the interest of the factorsstated in the said clause. Similarly, Article 19(3) enables the Stateto make any law imposing reasonable restrictions on the exerciseof the right conferred, again in the interest of the factors statedtherein.

8. In face of this constitutional mandate, the Americandoctrine adumbrated in Schenck case [63 L Ed 470 : 249 US 47(1919)] cannot be imported and applied. Under our Constitution,this right is not an absolute right but is subject to the abovenoticedrestrictions. Thus, the position under our Constitution is different.

9. In Constitutional Law of India by H.M. Seervai (4thEdn.), Vol. 1, the author has noticed that the provisions of the twoConstitutions as to freedom of speech and expression areessentially different. The difference being accentuated by theprovisions of the Indian Constitution for preventive detention whichhave no counterpart in the US Constitution. Reasonable restrictioncontemplated under the Indian Constitution brings the matter inthe domain of the court as the question of reasonableness is aquestion primarily for the court to decide. (Babulal Parate v. Stateof Maharashtra [AIR 1961 SC 884 : (1961) 2 Cri LJ 16 : (1961)3 SCR 423])

10. The fundamental right enshrined in the Constitution itselfbeing made subject to reasonable restrictions, the laws so enactedto specify certain restrictions on the right to freedom of speechand expression have to be construed meaningfully and with theconstitutional object in mind. For instance, the right to freedom ofspeech and expression is not violated by law which requires thatthe name of the printer and publisher and the place of printing andpublication should be printed legibly on every book or paper.

11. Thus, there is marked distinction in the language oflaw, its possible interpretation and application under the Indian andthe US laws. It is significant to note that the freedom of speech isthe bulwark of democratic Government. This freedom is essentialfor proper functioning of the democratic process. The freedom ofspeech and expression is regarded as the first condition of liberty.It occupies preferred position in the hierarchy of liberties, givingsuccour and protection to all other liberties. It has been truly saidthat it is the mother of all other liberties. Freedom of speech playsa crucial role in the formation of public opinion on social, politicaland economic matters. It has been described as “basic humanright”, “a natural right” and the like. With the development of lawin India, the right to freedom of speech and expression has takenwithin its ambit the right to receive information as well as the rightof press.”12.6 In the case of Joseph Kuruvilla Vellukunnel vs. ReserveBank of India, 1962 Supp (3) SCR 632, it is observed in para 75 thatthe aid of American concepts, laws and precedents in the interpretationof our laws is not always without its dangers and they have therefore tobe relied upon with some caution if not, with hesitation because of thedifference in the nature of those laws and of the institutions to whichthey apply.

12.7 In the case of State of Bihar vs. Union of India, (1970) 1SCC 67, it is observed and held in para 13 as under:

“Our attention was drawn to some provisions of theAmerican Constitution and of the Constitution Actof Australiaand several decisions bearing on the interpretation of provisionwhich are somewhat similar to Art. 131.But as the similarity isonly limited, we do not propose to examine either the provisionsreferred to or the decisions to which our attention was drawn. In

Ainterpreting our Constitution we must not be guided by decisionswhich do not bear upon provisions identical with those in ourConstitution.”

12.8 In the case of Ashok Kumar Thakur vs. Union of India,(2008) 6 SCC 1, it is observed in para 165 as under:

“165. At the outset, it must be stated that the decisions ofthe United States Supreme Court were not applied in the Indiancontext as it was felt that the structure of the provisions under thetwo Constitutions and the social conditions as well as other factorsare widely different in both the countries. Reference may be madeCto Bhikaji Narain Dhakras & Ors. Vs. The State of MadhyaPradesh & Anr.56 and A.S. Krishna Vs. State of Madras57wherein this Court specifically held that the due process clause inthe Constitution of the United States of America is not applicableto India. While considering the scope and applicability of ArticleD19(1)(g) in Kameshwar Prasad and Others Vs. State of Biharand Another, it was observed –

“As regards these decisions of the American Courts, itshould be borne in mind that though the First Amendment tothe Constitution of the United States reading “Congress shallmake no law ….abridging the freedom of speech….” appearsto confer no power on the Congress to impose any restrictionon the exercise of the guaranteed right, still it has always beenunderstood that the freedom guaranteed is subject to the policepower – the scope of which however has not been definedwith precision or uniformly.”

12.9 In the similar case of Kesavananda Bharati case, (1973)4 SCC 225, it is noticed by this Court that there are structural differencesin the Constitution of India and the Constitution of the United States ofAmerica.

13. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand and considering the differentposition of laws in US and in our country more particularly faced withArticles 19(1)(c) and 19(4) of the Constitution of India under which theright to freedom of speech is subject to reasonable restrictions and is notan absolute right and the constitution permits the Parliament to frame the

laws taking into consideration the public order and/or the sovereignty ofIndia, without noticing the differences in American Laws and the Indianlaws, this Court in the case of Arup Bhuyan (supra) and Raneep(supra) has erred in straightway and directly following the US SupremeCourt decisions and that too without adverting to the differences and theposition of laws in India.

13.1 In the aforesaid two decisions without noticing the differencesof the US Supreme Court (referred to in the said decisions) this Courthas just followed the American decisions to which we are not agreeable.This Court ought to have considered the differences in the Americanlaws and the Indian laws more particularly the provisions in the IndianConstitution. By the aforesaid we do not say for moment that in givencase the US Supreme Court decisions may not be taken into considerationand/or may not be guidance. Before following the American decisions,the Indian Courts are required to consider the difference in the nature ofthe laws applicable in the respective countries.

13.2 As observed and held by this Court in the case of JosephKuruvilla Vellukunnel (supra), the aid of American concepts, lawsand precedents in the interpretation to which laws is not always withoutits dangers and they have therefore to be relied upon with some cautionif not with hesitation because of the difference in the nature of thoselaws and the institutions to which they apply.

14. Now the next question which is posed for consideration beforethis Court is whether Section 10(a)(i) is required to be read down so asto save the said provision from being declared unconstitutional and isrequired to be read down as had been done in the case of Arup Bhuyan(supra) and Raneep (supra) that mere membership of bannedorganization will not incriminate person unless he resorts to violence orincites people to violence and does an act intended to create disorder ordisturbance of public peace by resort to violence meaning thereby overand above the membership of banned organization there must be amens rea required to be established and proved and/or there must be afurther overt act? While deciding this issue elaborate submissions havebeen made by Shri Tushar Mehta, learned Solicitor General, Shri VinayNavare, learned Senior Counsel appearing for the State of Assam andShri Sanjay Parikh, learned Senior Counsel appearing on behalf of theappellant/intervener.

14.1 While considering the aforesaid issue relevant provisions ofthe Constitution of India and the UAPA, 1967 are required to be referredto which are as under:

“19. Protection of certain rights regarding freedomof speech, etc.—(1) All citizens shall have the right—

(c) to form associations or unions [or co-operative societies];

[(2) Nothing in sub-clause (a) of clause (1) shall affect theoperation of any existing law, or prevent the State from makingany law, in so far as such law imposes reasonable restrictions onthe exercise of the right conferred by the said sub-clause in theinterests of [the sovereignty and integrity of India,] the security ofthe State, friendly relations with foreign States, public order,decency or morality or in relation to contempt of court, defamationor incitement to an offence.]

(4) Nothing in sub-clause (c) of the said clause shall affectthe operation of any existing law in so far as it imposes, or preventthe State from making any law imposing, in the interests of [thesovereignty and integrity of India or] public order or morality,reasonable restrictions on the exercise of the right conferred bythe said sub-clause.”

ERelevant provisions of UAPA of 1967 are as under:

2. Definitions.—(1) In this Act, unless the context otherwiserequires,—

(a) “association” means any combination or body ofindividuals;

[(ec) “person” includes—

(i) an individual,

(ii) company,

(iii) firm,

(iv) an organisation or an association of persons or body ofindividuals, whether incorporated or not,

(v) every artificial juridical person, not falling within any of thepreceding sub-clauses, and

[M. R. SHAH, J.]

(vi) any agency, office or branch owned or controlled by any personfalling within any of the preceding sub-clauses;]

(k) “terrorist act” has the meaning assigned to it in Section 15,and the expressions “terrorism” and “terrorist” shall beconstrued accordingly;

(l)“terrorist gang” means any association, other than terroristorganisation, whether systematic or otherwise, which isconcerned with, or involved in, terrorist act;

(m) “terrorist organisation” means an organisation listed in the [FirstSchedule] or an organisation operating under the same nameas an organisation so listed;

(p) “unlawful association” means any association,—

(i)which has for its object any unlawful activity, or whichencourages 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 underSection 153-A or Section 153-B of the Indian Penal Code (45of 1860), or which encourages or aids persons to undertakeany such activity, or of which the members undertake anysuch activity:

Provided that nothing contained in sub-clause (ii) shall apply tothe State of Jammu and Kashmir;

3. Declaration of an association as unlawful.—(1) Ifthe Central Government is of opinion that any association is, orhas become, an unlawful association, it may, by notification in theOfficial Gazette, declare such association to be unlawful.

(2) Every such notification shall specify the grounds on whichit is issued and such other particulars as the Central Governmentmay consider necessary:

Provided that nothing in this sub-section shall require theCentral Government to disclose any fact which it considers to beagainst the public interest to disclose.

(3) No such notification shall have effect until the Tribunalhas, by an order made under Section 4, confirmed the declarationmade therein and the order is published in the Official Gazette:

Provided that if the Central Government is of opinion thatcircumstances exist which render it necessary for that Governmentto declare an association to be unlawful with immediate effect, itmay, for reasons to be stated in writing, direct that the notificationshall, subject to any order that may be made under Section 4, haveeffect from the date of its publication in the Official Gazette.

(4) Every such notification shall, in addition to its publicationin the Official Gazette, be published in not less than one dailynewspaper having circulation in the State in which the principaloffice, if any, of the association affected is situated, and shall alsobe served on such association in such manner as the CentralGovernment may think fit and all or any of the following modesmay be followed in effecting such service, namely:

(a) by affixing copy of the notification to some conspicuouspart of the office, if any, of the association; or

(b) by serving copy of the notification, where possible, onthe principal office-bearers, if any, of the association; or

(c) by proclaiming by beat of drum or by means ofloudspeakers, the contents of the notification in the area in whichthe activities of the association are ordinarily carried on; or

(d) in such other manner as may be prescribed.

4. Reference to Tribunal.—(1) Where any associationhas been declared unlawful by notification issued under sub-section (1) of Section 3, the Central Government shall, within thirtydays from the date of the publication of the notification under thesaid sub-section, refer the notification to the Tribunal for the purposeof adjudicating whether or not there is sufficient cause for declaringthe association unlawful.

(2) On receipt of reference under sub-section (1), theTribunal shall call upon the association affected by notice in writingto show cause, within thirty days from the date of the service ofsuch notice, why the association should not be declared unlawful.

(3) After considering the cause, if any, shown by theassociation or the office-bearers or members thereof, the Tribunalshall hold an inquiry in the manner specified in Section 9 and aftercalling for such further information as it may consider necessary

from the Central Government or from any office-bearer or memberof the association, it shall decide whether or not there is sufficientcause for declaring the association to be unlawful and make, asexpeditiously as possible and in any case within period of sixmonths from the date of the issue of the notification under sub-section (1) of Section 3, such order as it may deem fit eitherconfirming the declaration made in the notification or cancellingthe same.

(4) The order of the Tribunal made under sub-section (3)shall be published in the Official Gazette.

8. Power to notify places for the purpose of an unlawful

association.—(1) Where an association has been declaredunlawful by notification issued under Section 3 which has becomeeffective under sub-section (3) of that section, the CentralGovernment may, by notification in the Official Gazette, notifyany place which in its opinion is used for the purpose of suchunlawful association.

Explanation.—For the purposes of this sub-section, “place”includes house or building, or part thereof, or tent or vessel.

(2) On the issue of notification under sub-section (1), theDistrict Magistrate within the local limits of whose jurisdiction suchnotified place is situate or any officer authorised by him in writingin this behalf shall make list of all movable properties (other thanwearing-apparel, cooking vessels, beds and beddings, tools ofartisans, implements of husbandry, cattle, grain and foodstuffs andsuch other articles as he considers to be of trivial nature) foundin the notified place in the presence of two respectable witnesses.

(3) If, in the opinion of the District Magistrate, any articlesspecified in the list are or may be used for the purpose of theunlawful association, he may make an order prohibiting any personfrom using the articles save in accordance with the written ordersof the District Magistrate.

(4) The District Magistrate may thereupon make an orderthat no person who at the date of the notification was not residentin the notified place shall, without the permission of the DistrictMagistrate, enter, or be on or in, the notified place:

Provided that nothing in this sub-section shall apply to anynear relative of any person who was resident in the notifiedplace at the date of the notification.

(5) Where in pursuance of sub-section (4), any person isgranted permission to enter, or to be on or in, the notified place,that person shall, while acting under such permission, comply withsuch orders for regulating his conduct as may be given by theDistrict Magistrate.

(6) Any police officer, not below the rank of sub-inspector,or any other person authorised in this behalf by the CentralGovernment may search any person entering, or seeking to enter,or being on or in, the notified place and may detain any such personfor the purpose of searching him:

Provided that no female shall be searched in pursuance ofthis sub-section except by female.

(7) If any person is in the notified place in contravention ofan order made under sub-section (4), then, without prejudice toany other proceedings which may be taken against him, he maybe removed therefrom by any officer or by any other personauthorised in this behalf by the Central Government.

(8) Any person aggrieved by notification issued in respectof place under sub-section (1) or by an order made under sub-section (3) or sub-section (4) may, within thirty days from the dateof the notification or order, as the case may be, make an applicationto the Court of the District Judge within the local limits of whosejurisdiction such notified place is situate—

(a) for declaration that the place has not been used for the purposeof the unlawful association; or

(b) for setting aside the order made under sub-section (3) or sub-section (4),

and on receipt of the application the Court of the District Judgeshall, after giving the parties an opportunity of being heard, decidethe question.

[10. Penalty for being member of an unlawfulassociation, etc.—Where an association is declared unlawful bya notification issued under Section 3 which has become effectiveunder sub-section (3) of that section,—

(a)a person, who—

(i)is and continues to be member of such association; or

(ii)takes part in meetings of such association; or

(iii)contributes to, or receives or solicits any contribution forthe purpose of, such association; or

(iv)in any way assists the operations of such association,shall be punishable with imprisonment for term which mayextend to two years, and shall also be liable to fine; and

(b)a person, who is or continues to be member of suchassociation, or voluntarily does an act aiding or promoting inany manner the objects of such association and in eithercase is in possession of any unlicensed firearms, ammunition,explosive or other instrument or substance capable ofcausing mass destruction and commits any act resulting inloss of human life or grievous injury to any person or causessignificant damage to any property,—

(i)and if such act has resulted in the death of any person, shallbe punishable with death or imprisonment for life, and shallalso be liable to fine;

(ii)in any other case, shall be punishable with imprisonment fora term which shall not be less than five years but whichmay extend to imprisonment for life, and shall also be liableto fine.]

13. Punishment for unlawful activities.—(1) Whoever—

(a) takes part in or commits, or

(b) advocates, abets, advises or incites the commission of,

any unlawful activity, shall be punishable with imprisonment for aterm which may extend to seven years, and shall also be liable tofine.

(2) Whoever, in any way, assists any unlawful activity ofany association, declared unlawful under Section 3, after thenotification by which it has been so declared has become effectiveunder sub-section (3) of that section, shall be punishable withimprisonment for term which may extend to five years, or withfine, or with both.

550SUPREME COURT REPORTS

A(3) Nothing in this section shall apply to any treaty, agreementor convention entered into between the Government of India andthe Government of any other country or to any negotiations thereforcarried on by any person authorised in this behalf by the Governmentof India.

38. Offence relating to membership of terroristorganisation.—(1) person, who associates himself, or professesto be associated, with terrorist organisation with intention tofurther its activities, commits an offence relating to membershipof terrorist organisation:

Provided that this sub-section shall not apply where theperson charged is able to prove—

(a) that the organisation was not declared as terrorist organisationat the time when he became member or began to profess tobe member; and

D(b) that he has not taken part in the activities of the organisation atany time during its inclusion in the [First Schedule] as terroristorganisation.

(2) person, who commits the offence relating tomembership of terrorist organisation under sub-section (1), shallEbe punishable with imprisonment for term not exceeding tenyears, or with fine, or with both.

39. Offence relating to support given to terroristorganisation.—(1) person commits the offence relating tosupport given for terrorist organisation,—

(a)who, with intention to further the activity of terroristorganisation,—

(i)invites support for the terrorist organisation, and

(ii)the support is not or is not restricted to provide money orother property within the meaning of Section 40; or

(b)who, with intention to further the activity of terroristorganisation, arranges, manages or assists in arranging ormanaging meeting which, he knows, is—

(i)to support the terrorist organisation, or

H(ii)to further the activity of the terrorist organisation, or

(iii)to be addressed by person who associates or professes tobe associated with the terrorist organisation; or

(c)who, with intention to further the activity of terroristorganisation, addresses meeting for the purpose ofencouraging support for the terrorist organisation or to furtherits activity.

(2) person, who commits the offence relating to supportgiven to terrorist organisation under sub-section (1) shall bepunishable with imprisonment for term not exceeding ten years,or with fine, or with both.”

Thus, the rights guaranteed under Article 19(1)(a) (Right to freedomof speech and expression) and under Article 19(1)(c) (Right to formassociation or unions) are not absolute rights, but are subject to reasonablerestrictions as per Article 19(2) and 19(4) of the Constitution of India.Article 19 (2) (3) & (4) have been amended vide the Constitution(Sixteenth Amendment) Act, 1963 and the words “sovereignty andintegrity of India” have been inserted. Therefore, as per Article 19(2)(3)& (4) nothing in clause (a), (b) and (c) of clause 1 of Article 19 shallaffect the operation of any existing law or prevent the State from makingany law in so far as such law imposes reasonable restrictions on theexercises of the right conferred by the said sub-clauses in the interestsof sovereignty and integrity of India, the security of State……Asper Article 19(4) nothing in sub-clause (c) (Right to form Associations orUnions) shall affect the operation of any existing law in so far as itimposes, or prevent the State from making any law imposing, in theinterests of sovereignty and integrity of India or public order ormorality, reasonable restrictions on the exercise of the right conferred bythe said sub clause. At this stage the statement of objects and reasonsfor amending Article 19(2)(3) & (4) are required to be referred to andconsidered.The statements of objects and reasons appended to the Constitution(Sixteenth Amendment) Bill, 1963 which was enacted as the Constitution(Sixteenth Amendment) Act, 1963 reads as under:

“STATEMENT OF OBJECTS AND REASONS

The Committee on National Integration and Regionalismappointed by the National Integration Council recommended thatarticle 19 of the Constitution be so amended that adequate powers

Abecome available for the preservation and maintenance of theintegrity, and sovereignty of the Union. The Committee were furtherof the view that every candidate for the membership of StateLegislature or Parliament, and every aspirant to, and incumbentof, public office should pledge himself to uphold the Constitutionand to preserve the integrity and sovereignty of the Union and thatBforms of oath in the Third Schedule to the Constitution should besuitably amended for the purpose. It is proposed to give effect tothese recommendations by amending clauses (2), (3) and (4) ofarticle 19 for enabling the State to make any law imposingreasonable restrictions on the exercise of the rights conferred byCsub-clauses (a), (b) and (c) of clause (1) of that article in theinterests of the sovereignty and integrity of India.”

14.2 The UAPA, 1967 has been enacted in exercise of powersconferred under Article 19(2) & (4) of the Constitution of India. At thisstage, it is required to be noted that exceptions to the freedom to formDassociations under Article 19(1) was inserted in the form of sovereigntyand integrity of India under Article 19(4), after the National IntegrationCouncil (NIC) appointed Committee on National Integration andRegionalisation. The said Committee was to look into the aspect of puttingreasonable restrictions in the interests of the sovereignty and integrity ofIndia. Pursuant to the acceptance of the recommendations of the saidECommittee, the Constitution (Sixteenth Amendment) Act, 1963 came tobe enacted to impose by law, reasonable restrictions in the interests ofsovereignty and integrity of India. In order to implement the provisions of1963 Act, the Unlawful Activities (Prevention) Bill was introduced in theParliament. The main objective of the UAPA is to make powers availableFfor dealing with activities directed against the integrity and sovereigntyof India. It is also required to be noted that pursuant to therecommendation of the Committee on National Integration andRegionalisation appointed by the National Integration Council Act on whoserecommendation the Constitution (Sixteenth Amendment) Act, 1963 was

enacted, UAPA has been enacted. It appears that National IntegrationGCouncil appointed Committee on National Integration andRegionalisation to look into, inter alia, the aspect of putting reasonablerestrictions in the interests of sovereignty and integrity of India andthereafter the UAPA has been enacted. Therefore, the UAPA has ben enacted to make powers available for dealing with the activities directHd against integrity and sovereignty of India.

14.3 Now let us consider the Preamble of the UAPA, 1967. Asper Preamble, UAPA has been enacted to provide for the more effectiveprevention of certain unlawful activities of individuals and associationsand dealing with terrorist activities and for matters connected therewith.Therefore the aim and object of enactment of UAPA is also to providefor more effective prevention of certain unlawful activities. That iswhy and to achieve the said object and purpose of effective preventionof certain unlawful activities the Parliament in its wisdom has providedthat where an association is declared unlawful by notification issuedunder Section 3, person, who is and continues to be member ofsuch association shall be punishable with imprisonment for term whichmay extend to 2 years, and shall also be liable to fine. Therefore, theParliament in its wisdom had thought it fit that once an association isdeclared unlawful after following due procedure as required underSection 3 and subject to the approval by the Tribunal still personcontinues to be member of such association is liable to be punished/penalized.

14.4 At this stage it is required to be noted that before an associationis declared unlawful, the procedure as required under Section 3 of theAct is required to be followed/undertaken. As per Section 3(1) if theCentral Government is of the opinion that any association is, or has becomean unlawful association, it may, by notification in the Official Gazette,declare such association to be unlawful. As per Section 3(2) every suchnotification shall specify the grounds on which it is issued and such otherparticulars as the Central Government may consider necessary….subjectto the right of the Central Government not to disclose any fact which itconsiders to be against the public interest to disclose. Section 3(3) providesthat no such notification shall have effect until the Tribunal has, by anorder made under Section 4, confirmed the declaration made therein andthe order is published in the Official Gazette. It also confers power uponthe Central Government to declare an association to be unlawful withimmediate effect if the Central Government is of the opinion thatcircumstances exist which render it necessary to declare an associationto be unlawful with immediate effect, however subject to the reasons tobe stated in writing and subject to any order that may be made underSection 4. As per Section 4 every such notification shall in addition to itspublication in the Official Gazette be published in not less than one dailynewspaper having circulation in the State in which the principal office, if

Aany, of the association affected is situated, and shall be served on suchassociation in such manner as the Central Government may think fit.As per Section 4 where any association has been declared unlawful by anotification issued under sub-section (1) of Section 3, the CentralGovernment is required, within thirty days from the date of the publicationof the notification, refer the notification to the Tribunal for the purpose ofBadjudicating whether or not there is sufficient cause for declaring theassociation unlawful. As per Section 4(2) on receipt of reference theTribunal shall call upon the association affected by notice in writing toshow cause, why the association should not be declared unlawful.Thereafter the Tribunal is required to hold an inquiry in the manner specifiedCin Section 9 and after calling for such further information as it mayconsider necessary from the Central Government or from any office-bearer or member of the association, it shall decide whether or notthere is sufficient cause for declaring the association to be unlawful and

make, as expeditiously as possible and in any case within period of sixmonths from the date of the issue of the notification under sub-sectionD(1) of Section 3, such order as it may deem fit either confirming thedeclaration made in the notification or cancelling the same.

14.5 Thus from the aforesaid it can be seen that before anyorganization is declared unlawful detailed procedure is required to beEfollowed including the wide publicity and even the right to member ofsuch association to represent before the Tribunal. As observedhereinabove the notification issued by the Central Government declaringa particular association unlawful, the same is subject to inquiry andapproval by the Tribunal as per Section 4. Once that is done and despitethat person who is member of such unlawful association continues toFbe member of such unlawful association then he has to face theconsequences and is subjected to the penal provisions as provided underSection 10 more particularly Section 10(a)(i) of the UAPA, 1967.

14.6 At this stage it is required to be noted that particularassociation is declared unlawful only after the Central Government isGsatisfied that such association is indulging to unlawful activity and thesame is against sovereignty and integrity of India. ‘Unlawful activity’ isdefined under Section 2(o) and ‘unlawful association’ is defined underSection 2(p). Thus, thereafter person who is the member of suchunlawful association cannot be permitted to say that still he may continueHto be associated with and/or continue to be member of such unlawful

association despite such an association is declared unlawful on the groundof its unlawful activities which is found to be against the interests of thesovereignty and integrity of India. At the cost of repetition, it is observedthat the object and purpose of the enactment of UAPA is to provide formore effective prevention of certain unlawful activities. To punish sucha person who is continued as member of such unlawful associationwhich is declared unlawful due to unlawful activities can be said to be infurtherance of providing for effective prevention of the unlawful activities.Therefore, as such Section 10(a)(i) which provides that where anassociation is declared unlawful by notification issued under Section 3which has become effective under sub-section 3 of that Section, personwho is and continues to be member of such association shall be punishablewith imprisonment for term which may extend to 2 years and shall alsobe liable to fine, can be said to be absolutely in consonance with Article19(1)(2) & (4) of the Constitution of India and can be said to be infurtherance of the object and purpose for which the UAPA has beenenacted.15. Now so far as the submission of Shri Parikh, learned SeniorCounsel on mens rea element and the reliance placed upon thejudgments referred to hereinabove on mens rea and in support of hissubmissions that mere membership of person of such unlawfulassociation alone cannot be ground to punish such person includingthe decision of Kedar Nath(supra) and other decisions are concerned,at the outset it is required to be noted that the said decisions shall not beapplicable while considering the provisions of UAPA. The offencesunder IPC and offences under the UAPA both are different. Asobserved hereinabove in the present case an association is declaredunlawful after following due procedure as required under Section 3and subject to the approval by the Tribunal under Section 4 and aftergiving an opportunity to such association, the officebearers oftheassociation and even the member of the association.

15.1 Now so far as the reliance placed upon the decision of thisCourt in Kedar Nath Singh (supra) by Shri Parikh, learned SeniorCounsel is concerned, at the outset it is required to be noted that the saiddecision was pre – Constitution (Sixteenth Amendment) Act, 1963. PostKedar Nath Singh (supra) on the recommendation of the NationalIntegration Council, Article 19(2) and 19(4) which operate as exception

Ato freedom of speech and freedom of association respectively, have beenamended to specifically include an exception as to “sovereignty andintegrity of India”. Therefore, the same will have material bearing onany question as to the application of Articles 19 & 21 in the context ofUAPA. Thus, UAPA is to be interpreted in congruence with theamendment of the Constitution in 1963 including “sovereignty and integrityBof India” as an exception to Article 19.

16. Now so far as the submission made by Shri Parikh, learnedSenior Counsel on the vagueness and possibility of misuse of Section10(i)(a) is concerned, at the outset it is required to be noted that as percatena of decisions of this Court mere possibility of misuse cannot be aground and/or relevant consideration while considering the constitutionalityof provision. As per the settled position of law any action which is theresult of abuse/misuse of any law is subject to challenge. But on thepossibility of abuse/misuse of law otherwise constitutionally validlegislation cannot be declared unconstitutional.

16.1 Now so far as the submission on vagueness of Section 10(a)(i)is concerned, as observed hereinabove an association is declared unlawfulafter complying with all the requirements under Sections 3 & 4 of theUAPA, 1967 as discussed hereinabove. person who is member ofsuch an unlawful association is as such aware of the declaration of suchEassociation as unlawful and despite the same if he still continues to bethe member of such unlawful association which is indulging into theunlawful activities and acting against the sovereignty and integrity ofIndia, his intention is very clear that he still wants to associate with suchan association which is indulging into ‘unlawful activities’ and acting againstthe interests of sovereignty and integrity of India. The language used inFthe 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 veryclear. There is no vagueness at all as sought to be contended by ShriSanjay Parikh, learned Senior Counsel. Therefore, Section 10(a)(i) doesnot suffer from any vagueness and/or on the ground unreasonable and/Gor disproportionate.

17. Now so far as the submission made by Shri Parikh, learnedSenior Counsel on chilling effect doctrine is concerned, it is required tobe noted that person knowing full well that an association of which heis the member is declared as unlawful association due to its unlawfulHactivities and acting against the interests of sovereignty and integrity of

India and still he continues to be member of such unlawful associationthereafter such person cannot be permitted to submit on chilling effect.The consequences are provided under the Act itself. Such person ismade to understand and/or known that to continue with the membershipof such unlawful association itself is an offence. Despite such knowledgestill he continues then is liable to be punished more particularly so long asSection 10(a)(i) stands and is not declared unconstitutional.

17.1 At this stage it is required to be noted that as per Section10(a)(i) person cannot be punished merely because he was the memberof such unlawful association. The language including Section 10 is verysignificant. 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 Section3 has become effective under sub-section 3, that the latter part of thatSection applies. The language of Section 10(a)(i) is also very cautiouslyworded “who is and continues to be member of such association”.Therefore, on true interpretation, if person has been member butdoes not continue to be member after declaration, that does not attractmischief of Section 10. The intention seems to be that not only was he amember on the day when the association is declared unlawful but hecontinues to be member. The intention is very clear that not only on thegiven date but even after that you continue to be member of thatassociation which is declared as unlawful association due to unlawfulactivities which is found to be against the interests of sovereignty andintegrity of India. Therefore, once an association is declared unlawful ofwhom the concerned person was the member wishes to continue as amember despite the fact that he is well aware of the fact that such anassociation is declared unlawful and if he still wishes to continue being apart of such unlawful association it shows conscious decision on hispart and therefore liable to be penalized for such an act of continuationof his membership with such unlawful association. Therefore, thereafterhe may not make grievance of chilling effect.

18. In view of the above and for the reasons stated above we holdthat the view taken by this Court in the cases of State of Kerala vs.Raneef, (2011) 1 SCC 784; Arup Bhuyan vs. Union of India, (2011)3 SCC 377 and Sri Indra Das vs. State of Assam 2011 (3) SCC 380taking the view that under Section 3(5) of Terrorists and DisruptiveActivities (Prevention) Act, 1987 and Section 10(a)(i) of the Unlawful

AActivities (Prevention) Act, 1967 mere membership of bannedorganization will not incriminate person unless he resorts to violence orincites people to violence and does an act intended to create disorder ordisturbance of public peace by resort to violence and reading down thesaid provisions to mean that over and above the membership of bannedorganization there must be an overt act and/or further criminal activitiesBand adding the element of mens rea are held to be not good law. It isobserved and held that when an association is declared unlawful bynotification issued under Section 3 which has become effective of sub-section 3 of that Section, person who is and continues to be memberof such association is liable to be punished with imprisonment for termCwhich may extend to two years, and shall also be liable to fine underSection 10(a)(i) of the UAPA, 1967.

Any other decisions of the High Court taking contrary view areheld to be not good law and are specifically overruled by this Judgment.

Reference is answered accordingly. Consequently, the ReviewDapplications filed by the Union of India and the State of Assam are herebyallowed.

Now the main appeals/SLPs be placed before the concernedBench for taking of such matters after obtaining the appropriate orderfrom Hon’ble the Chief Justice.

SANJAY KAROL, J.

Table of Contents[*]

H* Ed. Note: Pagination in the Table of Contents is as per the original judgment.

I have perused the erudite opinion proposed by my esteemedcolleague Hon’ble M.R. Shah, J., with which I concur. It is my furtherendeavour to trace the development of law on the issue in India and theapplication of the decisions rendered by the Courts in the United Statesof America, thereto. My conclusions are as follows:

Reference made to this Court

1. The present Review Petition arises out of Order of this Courtdated 26.08.2014 in Arup Bhuyan v. State of Assam[1 ](hereafter referredto as Reference Order).The operative part of the order is reproduced asunder:

“10. The crux of the matter as submitted by Mr Ranjit Kumar,learned Solicitor General for the Union of India, is that when anyprovision in Parliamentary legislation is read down, in the absenceof the Union of India it is likely to cause enormous harm to theinterest of the State as in many cases certain provisions have beenengrafted to protect the sovereignty and integrity of India.

11. The learned Solicitor General would contend that theauthorities which have been placed reliance upon in both thejudgments [Arup Bhuyan v. State of Assam, (2011) 3 SCC377 : (2011) 1 SCC (Cri) 855], [Indra Das v. State of Assam,(2011) 3 SCC 380 : (2011) 1 SCC (Cri) 1150] by the two-Judge Bench are founded on Bill of Rights which is differentfrom Article 19 of the Constitution of India. He has referred toArticles 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 isas follows:

“19. (4) Nothing in sub-clause (c) of the said clause shall affectthe operation of any existing law insofar as it imposes, or preventthe State from making any law imposing, in the interests of thesovereignty and integrity of India or public order or morality,reasonable restrictions on the exercise of the right conferredby the said sub-clause.”

Relying upon the same it is highlighted by the learned SolicitorGeneral that the Court has not kept this aspect in view while placingheavy reliance on the foreign authorities which are fundamentallynot applicable to the interpretative process of the provisions whichhave been enacted in consonance with the provisions of theConstitution of India.

12. Regard being had to the important issue raised by the learnedSolicitor General and Mr. Jaideep Gupta, learned Senior Counsel,for the State of Assam, we think it appropriate that the mattershould be considered by larger bench. Let the registry place thepapers before the Hon’ble Chief Justice of India for appropriateCorders.”

2. Therefore, the issue which arises for consideration is, whetherthe Hon’ble Division Bench in Arup Bhuyan v. State of Assam[2 ]an similarly in Sri Indra Das v. State of Assam[3 ](two-Judge Bench) (hreafter referred to as ‘Arup Bhuyan’ and ‘Indra Das’, respectivelD)was correct in placing reliance on American decisions stating tht the decisions apply to India too, “as our fundamental rights are smilar to the Bill of Rights in the US Constitution” to read down S.(5) of Terrorist and Disruptive Activities Prevention Act, 1987/S.10 Unlawful Activities (Prevention) Act, 1967 (hereafter referred to asEUAPA)?[4]General Development of Article 19 of the IndianConstitution

3. It is important, at the outset, to reproduce Article 19 of theIndian Constitution which reads as follows:F

“19(1) All citizens shall have the right—

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;G

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India;

2 (2011) 3 SCC 377

3 (2011) 3 SCC 380

4 HArup Bhuyan, Paragraph 12.

(g) to practise any profession, or to carry on any occupation, tradeor business.

(2) Nothing in sub-clause (a) of clause (1) shall affect the operationof any existing law, or prevent the State from making any law, inso far as such law imposes reasonable restrictions on the exerciseof the right conferred by the said sub-clause in the interests of thesovereignty and integrity of India,] the security of the State, friendlyrelations with foreign States, public order, decency or morality, orin relation to contempt of court, defamation or incitement to anoffence.

(3) Nothing in sub-clause (b) of the said clause shall affect theoperation of any existing law in so far as it imposes, or prevent theState from making any law imposing, in the interests of thesovereignty and integrity of India or public order, reasonablerestrictions on the exercise of the right conferred by the saidsub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect theoperation of any existing law in so far as it imposes, or prevent theState from making any law imposing, in the interests of thesovereignty and integrity of India or public order or morality,reasonable restrictions on the exercise of the right conferred bythe said sub-clause…”

4. At the time of the enactment of the Indian Constitution, assubmitted by the Union of India, Article 19 did not contain ‘reasonablerestrictions’. The words ‘reasonable restrictions’ within Article 19(2)were introduced by the Constitution (First Amendment) Act, 1951,which stated in its object and reasons that within the first fifteen monthsof the working of the Constitution certain difficulties were experienced,particularly, in regard to the chapter on Fundamental Rights and to addressthose issues the State was empowered to impose reasonable restrictionsin the interest of general public.

5. This was followed by the Constitution (Sixteenth)Amendment Act, 1963, wherein the State was empowered to imposereasonable restrictions on the freedoms conferred under Article 19,particularly on the ground of protection of interests of “sovereignty” and“integrity” of India. In its object and reasons, it was stated that thisAmendment is upon the recommendation of the Committee on National

AIntegration and Regionalism appointed by the National Integration Councilfor preservation and maintenance of the integrity and sovereignty of theUnion of India.

6. The interpretation of Article 19 and application of reasonablerestrictions therein has been summarized by this Court in Dharam DuttBv. Union of India[5 ](two-Judge Bench)in the following terms:

“35. The scheme of Article 19 shows that group of rights arelisted as clauses (a) to (g) and are recognized as fundamentalrights conferred on citizens. All the rights do not stand on commonpedestal but have varying dimensions and underlying philosophies.CThis is clear from the drafting of clauses (2) to (6) of Article 19.The framers of the Constitution could have made common draftof restrictions which were permissible to be imposed on theoperation of the fundamental rights listed in clause (1), but thathas not been done. The common thread that runs throughoutclauses (2) to (6) is that the operation of any existing law or theDenactment by the State of any law which imposes reasonablerestrictions to achieve certain objects, is saved; however, the qualityand content of such law would be different by reference to eachof sub-clauses (a) to (g) of clause (1) of Article 19 as can betabulated hereunder:

EArticle 19

Clause (1)

Clauses (2) to (6)

Nature of right

Permissible restrictionsBy existing law or by lawmade by the State imposingreasonable restrictions in theinterests of

H5 (2004) 1 SCC 712

36. Article 19 confers fundamental rights on citizens. The rightsconferred by Article 19(1) are not available to and cannot beclaimed by any person who is not and cannot be citizen of India.A statutory right — as distinguished from fundamental right —conferred on persons or citizens is capable of being deprived of ortaken away by legislation. The fundamental rights cannot be takenaway by any legislation; legislation can only impose reasonablerestrictions on the exercise of the right. Out of the several rightsenumerated in clause (1) of Article 19, the right at sub-clause (a)is not merely right of speech and expression but right to freedom

Aof speech and expression. The enumeration of other rights is notby reference to freedom. In the words of the then Chief JusticePatanjali Sastri in State of W.B. v. Subodh Gopal Bose [AIR1954 SC 92 : 1954 SCR 587] these rights are great and basicrights which are recognized and guaranteed as the natural rights,inherent in the status of citizen of free country. Yet, thereBcannot be any liberty absolute in nature and uncontrolled in operationso as to confer right wholly free from any restraint. Had therebeen no restraints, the rights and freedoms may tend to becomethe synonyms of anarchy and disorder. The founding fathers ofthe Constitution, therefore, conditioned the enumerated rights andCfreedoms reasonably and such reasonable restrictions are foundto be enumerated in clauses (2) to (6) of Article 19...”

(Emphasis supplied)

7. While considering the reasonableness of the restrictions imposedunder Article 19(2) to 19(6), Constitution Bench of this Court in StateDof Madras v. VG Row[6 ](five-Judge Bench)observed as under:

“22. This Court had occasion in Khare case [N.B.Khare v. State of Delhi, 1950 SCR 519 : 1950 SCC 522] to definethe scope of the judicial review under clause (5) of Article 19where the phrase “imposing reasonable restrictions on the exerciseEof the right” also occurs, and four out of the five Judges participatingin the decision expressed the view (the other Judge leaving thequestion open) that both the substantive and the procedural aspectsof the impugned restrictive law should be examined from the pointof view of reasonableness; that is to say, the Court should considerFnot only factors such as the duration and the extent of therestrictions, but also the circumstances under which and the mannerin which their imposition has been authorised.

23. It is important in this context to bear in mind that the testof reasonableness, wherever prescribed, should be applied to eachindividual statute impugned, and no abstract standard, or generalpattern of reasonableness can be laid down as applicable to allcases. The nature of the right alleged to have been infringed, theunderlying purpose of the restrictions imposed, the extent andurgency of the evil sought to be remedied thereby, the disproportion

of the imposition, the prevailing conditions at the time, should allenter into the judicial verdict.....”

(Emphasis supplied)

8. Furthermore, laws restricting freedoms under Article 19, mustbe under one of the permitted heads of restrictions and must have aproximate link to it. [See: State of Bihar v. Shailabala Devi[7 ](five-Judge Bench); O.K. Ghosh and Anr. v. E.X. Joseph[8 ](five-JudgeBench) and Shreya Singhal v. Union of India[9 ](two-Judge Bench)]

9. This development of Article 19 has been encapsulated by aConstitution Bench of this Court in Kaushal Kishor v. State of U.P. &Ors.[10 ](five-Judge Bench).Justice V. Ramasubramanian has reiteratedthat the restrictions under Article 19(2) have been included after detaileddeliberations. Furthermore, after the amendments to the Constitution thathave been discussed herein above, the restrictions “save and enable theState” to make laws restricting freedoms under the enumerated heads,such as, sovereignty and integrity of India, security of the State andincitement to an offence.[11]

Specifically, Development of Article 19(1)(c)

10. Article 19(1)(c) guarantees to all citizens the right to formassociations which are subject to reasonable restrictions under Article19(4). These reasonable restrictions are not limited to formation of theassociation but extends to effective functioning of the association relatingto lawful objectives. [A.P. Dairy Development Corpn. Federation v.B. Narasimha Reddy[12 ](two-Judge Bench)]

11. Constitution Bench of this Court in Raghubar Dayal JaiPrakash v. Union of India[13 ](five-Judge Bench), made specific referenceto restrictions imposed by statutes, vis-a-vis Article 19 (1)(c) and observedas under:

7 AIR 1952 SC 329

8 AIR 1963 SC 812

9 (2015) 5 SCC 1

10 2023 SCC Online 6

11 Paragraphs 29 - 31.

12 (2011) 9 SCC 286

13 AIR 1962 SC 263

A“11. ... An application for the recognition of the association for thepurpose of functioning under the enactment is voluntary act onthe part of the association and if the statute imposes conditionssubject to which alone recognition could be accorded or continued,it is little difficult to see how the freedom to form the associationin affected unless, of course, that freedom implies or involves aBguaranteed right to recognition also....”.

12. Furthermore, this Court, while considering the constitutionalvalidity of the Indian Council of World Affairs Ordinance 2001, in DharamDutt (supra),while tracing the settled legal position, reiterated thatrestrictions can be imposed on the right conferred by Article 19(1)(c). ItCwas observed that this right can be subjected to those restrictions whichsatisfy the test of Article 19(4) of the Constitution.

13. While adjudicating case involving the UAPA, in Jamaat-E-Islami Hind v. Union of India[14 ](three-Judge Bench), with respect torestrictions that may be imposed on such right under Article 19(4) asDalso the requirements of natural justice, it was observed as under:

“20. ... The scheme under this Act requiring adjudication of thecontroversy in this manner makes it implicit that the minimumrequirement of natural justice must be satisfied, to make theadjudication meaningful. No doubt, the requirement of naturalEjustice in case of this kind must be tailored to safeguard publicinterest which must always outweigh every lesser interest.Thisis also evident from the fact that the proviso to sub-section (2) ofSection 3 of the Act itself permits the Central Government towithhold the disclosure of facts which it considers to be againstFthe public interest to disclose. Similarly, Rule 3(2) and the provisoto Rule 5 of the Unlawful Activities (Prevention) Rules, 1968also permit non-disclosure of confidential documents andinformation which the Government considers against the publicinterest to disclose.”

“26. An authorised restriction saved by Article 19(4) onthe freedom conferred by Article 19(1)(c) of the Constitution hasto be reasonable.”

(Emphasis supplied)

Distinction between Indian and American Constitution

14. In view of the above discussion, one now proceeds to considerthe First Amendment of the American Constitution which is extracted asunder:

“Congress shall make no law respecting an establishment of religion,or prohibiting the free exercise thereof; or abridging the freedomof speech, or of the press; or the right of the people peaceably toassemble, and to petition the Government for redress ofgrievances.”

15. The contradistinction between the rights created by the FirstAmendment of the American Constitution and Article 19 of the IndianConstitution is the power given to the State to make laws reasonablyrestricting such freedoms in India. Conversely, in the United States ofAmerica, restrictions have been imposed by the Judiciary in instances,as relied upon in Arup Bhuyan and Indra Das, however no such explicitpower is available with the Legislature.

16. This distinction has been enunciated by this Court as well. InBabulal Parate v. State of Maharashtra[15], as submitted by the Unionof India, Constitution Bench of this Court (five-Judge Bench) whileupholding the constitutional validity of Section 144, Cr.P.C. has held thatwhatever may be the position in the United States, the anticipatory actionunder S.144, Cr.P.C. is permissible under clauses (2) and (3) of Article19, which allow the legislature to make laws placing reasonable restrictionson the rights conferred by these clauses of Article 19. Importantly, thisCourt further observed there is nothing in the American Constitutioncorresponding to clauses (2) to (6) of Article 19 of the Indian Constitution.It was further observed that the framework of the Indian Constitution isdifferent from the American Constitution.

17. The above distinction in Babulal Parate (supra), was reaffirmedby another Constitution Bench in Madhu Limaye v. Sub-DivisionalMagistrate[16 ](seven-Judge Bench), wherein this Court while dealingwith the constitutionality of S.144 of the Cr.P.C. and the scope ofrestrictions that can be imposed, observed that in America, the FirstAmendment freedoms have no qualifications, as in India and the Americanrulings are apt to be misapplied to our Constitution.[17]

15 (1961) 3 SCR 423

16 (1970) 3 SCC 746

17 Paragraph 17 and 28.

[2023] 8 S.C.R.

A18. Furthermore, in Indian Express Newspapers (Bombay)Pvt. Ltd. and Others v. Union of India and Others[18] (three-JudgeBench), through the pen of E.S Venkatramaiah J., (as his Lordship thenwas), observed that:

“44. While examining the constitutionality of law which is alleged toBcontravene Article 19(1)(a) of the Constitution, we cannot, no doubt,be solely guided by the decisions of the Supreme Court of the UnitedStates of America. But in order to understand the basic principles offreedom of speech and expression and the need for that in ademocratic country, we may take them into consideration. The patternof Article 19(1)(a) and of Article 19(1)(g) of our Constitution is differentCfrom the pattern of the First Amendment to the American Constitutionwhich is in absolute terms. The rights guaranteed under Article 19(1)(a)and Article 19(1)(g) of the Constitution are to be read along withclauses (2) and (6) of Article 19, which carve out areas in respect ofwhich valid legislation can be made.”D19. In Union of India v. Naveen Jindal and Another[19 ](three-Judge Bench) this Court, while discussing the issue of citizen’s right tofly the National Flag, on the issue of Right to freedom of Speech andExpression, noted the distinction between the Constitution of India andthat of the United States of America. Such distinction being that in theUSA, the First Amendment gives an absolute right to citizen of freeEexpression, but under Article 19(1)(a), no absolute right is conferred. Itonly provides for qualified right, which is subject to regulatory measurescontained in clause 2 of Article 19.[20] This distinction between the Bill ofRights contained in the American Constitution and the fundamental rightsprovided for in the Indian Constitution was also noted in Superintendent,FCentral Prison v. Dr. Ram Manohar Lohia[21](five-Judge Bench);Pathumma v. State of Kerala[22 ](seven-Judge Bench);M.C. Mehta v.Union of India[23] (Shriram – Oleum Gas) (five-Judge Bench); AshokKumar Thakur v. Union of India[24 ](two-Judge Bench)and JayendraVishnu Thakur v. State of Maharashtra[25 ](two-Judge Bench).

G18 (1985) 1 SCC 64119 (2004) 2 SCC 51020 Paragraph 77.21 (1960) 2 SCR 82122 (1978) 2 SCC 123 (1987) 1 SCC 39524 (2008) 6 SCC 1H25 (2009) 7 SCC 104

20. In Ramlila Maidan Incident, In re, (2012) 5 SCC 1 (two-Judge Bench), as submitted by the Union of India, while discussing theRight to Freedom of Speech and Expression under Article 19, refused toapply the US case of Schneck v. United States[26], which propoundedthe doctrine of clear and present danger, stating that it cannot be importedand applied in India.[27] Further, holding that, the right to freedom of speechand expression in India is subject to reasonable restrictions and therefore,there is marked distinction in the language of law, its application andinterpretation under the Indian and the US laws.[28]

21. Shreya Singhal (supra), this Court speaking through R.F.Nariman, J. highlighted on the differences between the US FirstAmendment and Freedom of Speech and Expression under Article19(1)(a) read with Article 19(2) in the following words:

“15. It is significant to notice first the differences between theUS First Amendment and Article 19(1)(a) read with Article 19(2).The first important difference is the absoluteness of the US FirstAmendment—Congress shall make no law which abridges thefreedom of speech. Second, whereas the US First Amendmentspeaks of freedom of speech and of the press, without anyreference to “expression”, Article 19(1)(a) speaks of freedom ofspeech and expression without any reference to “the press”. Third,under the US Constitution, speech may be abridged, whereas underour Constitution, reasonable restrictions may be imposed. Fourth,under our Constitution such restrictions have to be in the interestof eight designated subject-matters— that is, any law seeking toimpose restriction on the freedom of speech can only pass musterif it is proximately related to any of the eight subject-matters setout in Article 19(2).”

17. So far as the second apparent difference is concerned, theAmerican Supreme Court has included “expression” as part offreedom of speech and this Court has included “the press” asbeing covered under Article 19(1)(a), so that, as matter of judicialinterpretation, both the US and India protect the freedom of speechand expression as well as press freedom. Insofar as abridgementand reasonable restrictions are concerned, both the US Supreme

26 249 US 47 (1919)

27 Paragraph 8.

28 Paragraph 9 - 11.

ACourt and this Court have held that restriction in order to bereasonable must be narrowly tailored or narrowly interpreted soas to abridge or restrict only what is absolutely necessary.It isonly when it comes to the eight subject-matters that there is vastdifference. In the US, if there is compelling necessity to achievean important governmental or societal goal, law abridging freedomBof speech may pass muster. But in India, such law cannot passmuster if it is in the interest of the general public. Such law has tobe covered by one of the eight subject-matters set out under Article19(2). If it does not, and is outside the pale of Article 19(2), Indiancourts will strike down such law.”

18. American judgments have great persuasive value on the contentof freedom of speech and expression and the tests laid down forits infringement. It is only when it comes to subserving the generalpublic interest that there is world of difference.”

(Emphasis Supplied)

22. The abovementioned decision in Shreya Singhal (supra), hasbeen followed recently in Kaushal Kishor (supra) by Justice B.V.Nagarathna in her erudite concurring opinion while analyzing the freedomof speech and expression under Article 19.[29]

E23. The distinction as noted by this Court in various decisionsbetween the American Constitution, specifically the First Amendmenttherein and Article 19 of the Indian Constitution have been notedhereinabove.

24. There have been, however, cases where this Court has, takenFinto consideration, judgments of the Supreme Court of the United Statesof America. For instance, the Constitution Bench in ExpressNewspapers (Pvt.) Limited and Another v. Union of India andOthers[30 ](five-Judge Bench) wherein the constitutionality of the WorkingJournalists (Conditions of Service) and Miscellaneous Provisions Act,1955 was in question.

Justice N.H. Bhagwati writing for the Court, observed, that sinceArticle 19(1)(a) of our Constitution is based on the First Amendment ofthe American Constitution, it would be “legitimate and proper” to refer to

29 Paragraph 202(iii) & 203.

30 (1959) SCR 12

the decisions of the Supreme Court of the United States “in order toappreciate the true nature, scope and extent of this right”. This observationcomes in addition to and despite having taken note of the warnings issuedin State of Travancore – Cochin and Others v. Bombay Co. Ltd[31](five-Judge Bench) and State of Bombay v. R.M.D. Chamarbaugwala[32](five-Judge Bench). This was, however, after having duly recognizedthe “paucity of authority in India on the nature, scope and extent of thisfundamental right of freedom of speech and expression enshrined underarticle 19(1)(a) of the Constitution”, at that point in time.

25. This observation of Justice N.H. Bhagwati has been furtherfollowed in Reliance Petrochemicals Ltd. v. Proprietors of IndianExpress Newspapers, Bombay Pvt. Ltd. and Ors.[33 ](two-JudgeBench) wherein the effect of Article 19 on the freedom of press was inquestion.[34 ]The court while making reference to US and UK decisions inNebraska Press Association v. Hugh Stuart[35], John D. Pennekamov. State of Florida[36] and Attorney General v. British BroadcastingCorporation[37], held that there was no reason for the injunction in question,to continue.[38]

26. In R.K. Garg v. Union of India[39 ](five-Judge Bench), aConstitution Bench, placed reliance on the Supreme Court of UnitedStates decisions in Morey v. Doud[40 ]and Secy. of Agriculture v. CentralRoig Refining Co.[41 ]to hold that the courts cannot be converted intotribunals for relief from inequalities in economic legislations.[42]

27. An observation by Lord Denning in Ghani v. Jones[43] quotedwith approval in Maneka Gandhi v. Union of India[44 ](seven-JudgeBench), is worth reproducing herein. It reads, “a man’s liberty of

31 1952 SCR 111232 1957 SCR 87433 (1988) 4 SCC 59234 Paragraph 10.35 427 US 53936 (1945) 90 L Ed 33137 (1979) 3 All ER 4538 Paragraph 20 - 22, 38.39 (1981) 4 SCC 67540 354 US 457 (1957)41 338 US 604 (1949)42 Paragraph 8.43 (1970) 1 QB 69344 (1978) 1 SCC 248

Amovement is regarded so highly by the law of England that it is notto be hindered or prevented except on surest grounds”. It is then, byextension, without shadow of doubt, sure ground for the restriction ofliberty, in the present case of association, if the legislature, after followingprocedure established by law, found appropriate reasons to restrict suchright, in particular, with banned organizations.B

28. The purpose of delving into both nature of decisions, wherejudgments of the United States Supreme Court have and have not beenrelied on, is to demonstrate that in certain cases reference to thosejudgments is justified. Such reference though, needless to say, has to beappreciated in the light of our own constitutional, legislative as well asCjudicial, historic perspective. They cannot, as was done in the ArupBhuyan and Indra Das referred to this bench, form the sole basis forthe conclusion arrived at.

29. In the aforesaid backdrop, in order to answer the reference, itis essential to appreciate the decisions relied upon in the two decisions,Dnamely, Arup Bhuyan and Indra Das. It is only subsequent to havingappreciated these decisions that we may examine effectively, theirapplication to the scenario before us.

Background, import and relevance of decisions of SupremeCourt of United States relied on in Arup BhuyanE

30. In Arup Bhayan, the learned bench of two judges placedreliance on American decisions in Elfbrandt v. Russel[45], ClarenceBrandenberg v. State of Ohio[46] and United States v. Eugene FrankRobel[47 ]wherein the doctrine of ‘guilt by association’ has been rejected.The court observed that the abovementioned judgments apply to IndiaFtoo, since the fundamental rights in India are similar to the Bill of Rightsin the U.S. Constitution. Furthermore, this court while setting aside theconviction of the appellant under S.3(5) TADA observed:

“12. In our opinion, Section 3(5) cannot be read literally otherwiseit will violate Articles 19 and 21 of the Constitution. It has to beGread in the light of our observations made above. Hence, meremembership of banned organisation will not make person

45 384 U.S. 17 (1966)

46 395 U.S. 444 (1969)

H47 389 U.S. 258 (1967)

criminal unless he resorts to violence or incites people to violenceor creates public disorder by violence or incitement to violence.”

31. Reliance was placed on the decision of this court in State ofKerela v. Raneef[48 ](two-Judge Bench), wherein Justice Katju, whileupholding the order granting bail to the Respondent, placed reliance onUS Supreme Court decisions such as Elfbrandt (supra) which hasrejected the doctrine of “guilt of association”.

32. In Elfbrandt (supra), the constitutionality of the Arizona Actwas in question which required all state employees to take oath. Underthe oath, an employee is subject to prosecution for perjury and dischargefrom office if he “knowingly and willfully becomes or remains amember of the communist party of the United States or itssuccessors or any of its subordinate organizations’’ or “any otherorganization” having for “one of its purposes”, the overthrow of the stategovernment, where the employee had knowledge of such unlawfulpurpose. It was held that those who join an organization but do not shareits unlawful purposes and who do not participate in its unlawful activitiessurely pose no threat. This Act threatens the cherished freedom ofassociation protected by the First Amendment, made applicable to theStates through the Fourteenth Amendment.33. In Clarence Brandenberg v. State of Ohio[49], the Appellantwas convicted under the Ohio Criminal Syndicalism statute for:

(i) ‘advocating … the duty, necessity, or propriety of crime,sabotage, violence, or unlawful methods of terrorism as ameans of accomplishing industrial or political reform’ and

(ii) for ‘voluntarily assembling with any society, group, orassemblage of persons formed to teach or advocate thedoctrines of criminal syndicalism.’

The Supreme Court of the United States of America, whilereversing the conviction, held that Ohio’s Criminal Syndicalism Act cannotbe sustained. The Act punishes persons who ‘advocate or teach theduty, necessity, or propriety’ of violence ‘as means of accomplishingindustrial or political reform’; or who publish or circulate or display anybook or paper containing such advocacy; or who ‘justify’ the commission

48 (2011) 1 SCC 78449 395 U.S. 444 (1969)

Aof violent acts ‘with intent to exemplify, spread or advocate the proprietyof the doctrines of criminal syndicalism’; or who ‘voluntarily assemble’with group formed ‘to teach or advocate the doctrines of criminalsyndicalism.’ Neither the indictment nor the trial judge’s instructions tothe jury in any way refined the statute’s bald definition of the crime inBterms of mere advocacy not distinguished from incitement to imminentlawless action. Furthermore, it held that the Constitutional guarantees offree speech and free press do not permit State to forbid or proscribeadvocacy of the use of force or of law violation except where suchadvocacy is directed to inciting or producing imminent lawless action andis likely to incite or produce such action.C

34. In United States v. Eugene Frank Robel[50], theconstitutionality of S. 5(a)(1)(D) of the Subversive Activities Control Actof 1950, was drawn into question before the Supreme Court of the UnitedStates of America. S.5(a)(1)(D) of the Act provided that, when aDCommunist-action organization is under final order to register, it shallbe unlawful for any member of the organization ‘to engage in anyemployment in any defense facility.’ In this case, the appellee was indictedsince he was member of the Communist Party and was employed atTodd Shipyards Corporation, which was designated as ‘defense facility.’The Court declared S.5(a)(1)(D) as unconstitutional and held that:E“It is precisely because that statute sweeps indiscriminatelyacross all types of association with Communist-action groups,without regard to the quality and degree of membership, that itruns afoul of the First Amendment.”

FBackground, import and relevance of decisions of SupremeCourt of United States relied on in Indra Das

35. In Indra Das, the learned bench of two Judges relied on andfollowed its earlier judgment in Arup Bhuyan and while similarly relyingon the American decisions discussed henceforth, it was held that S.3(5)Gof TADA/S.10 of UAPA have to be read down to bring them inconsonance with the Constitution.

36. Reliance was placed on Elfbrandt (supra),as discussed above.

37. The learned division bench relied on Scales v. United States[51],to make distinction between an active and passive member of anorganization. In this case, the Petitioner’s conviction under the SmithAct came in review before the Supreme Court of the United States ofAmerica. This act, made felony “the acquisition or holding of knowingmembership in any organization which advocates the overthrow of theGovernment of the United States by force of violence.” Further, the Court,while overruling the Petitioner’s constitutional challenge observed that:

“The clause does not make criminal all association with anorganization which has been shown to engage in illegal advocacy.There must be clear proof that defendant “specifically intends toaccomplish the aims of the organization by resort to violence.”

Thus, the member for whom the organization is vehicle for theadvancement of legitimate aims and policies does not fall withinthe ban of the statute: he lacks the requisite specific intent ‘tobring about the overthrow of the government as speedily ascircumstances would permit.’ Such person may be foolish,deluded, or perhaps merely optimistic, but he is not by this statutemade criminal.”

38. In Noto v. United States[52], the Petitioner was convicted ofviolating the membership clause of the Smith Act, which makes felonythe acquisition or holding of membership in any organization whichadvocates the overthrow of the Government of the United States byforce or violence, knowing the purpose thereof. The Supreme Courtobserved that There must be some substantial direct or circumstantialevidence of call to violence now or in the future which is both sufficientlystrong and sufficiently pervasive to lend color to the otherwise ambiguoustheoretical material regarding Communist Party teaching.

In this backdrop, it was held that the conviction of the Petitioner isbeing reversed because the Government has failed to produce evidencethe Court believes sufficient to prove that the Communist Party presentlyadvocates the overthrow of the Government by force.

39. Reliance was placed on the dissenting opinion of JusticeHugo Black in Communist Party v. Subversive Activities Control

51 367 US 203 (1960)

52 367 US 290 (1960)

ABoard[53]. In this case, the registration of the Communist Party of theUnited States since it was “Communist action organization,” under theSubversive Activities Control Act of 1950 was brought into question. JusticeHugo Black observed that: “I do not believe that it can be too often repeatedthat the freedoms of speech, press, petition and assembly guaranteed bythe First Amendment must be accorded to the ideas we hate or sooner orBlater they will be denied to the ideas we cherish. The first banning of anassociation because it advocates hated ideas — whether that associationbe called political party or not — marks fateful moment in the history ofa free country. That moment seems to have arrived for this country.”

40. In Joint Anti-Fascist Refugee Committee v. McGrath[54],Cthe Petitioner organisations were included by the Attorney General asCommunist, without hearing and furnished by him to the Loyalty ReviewBoard of the United States Civil Service Commission. The court, whilerecognising that the Attorney General had no power to do so, remandedthe matter back to the district court. It was observed that:D“In days of great tension, when feelings run high, it is temptationto take shortcuts by borrowing from the totalitarian techniques ofour opponents. But when we do, we set in motion subversiveinfluence of our own design that destroys us from within.”

E41. In Keyishian v. Board of Regents of New York[55], theSupreme Court of the United States of America, struck down lawwhich authorized the board of regents to prepare list of subversiveorganizations and to deny jobs to teachers belonging to those organizations.The law made membership in the Communist Party prima facie evidencefor disqualification from employment. Mr. Justice Brennan, speaking forFthe Court held that, penalizing mere knowing membership, without aspecific intent to further the unlawful aims of an organization, is not aconstitutionally adequate basis for exclusion from such positions as thoseheld by appellants.

42. In Yates v. U.S.[56], the Petitioners were members of theGCommunist Party in California and were indicted under the Smith Act,charging them with conspiring (1) to advocate and teach the duty and

56 354 US 298 (1957)53 367 US 1 (1961)54 341 US 123, 174 (1951)H55 385 US 589 1966

necessity of overthrowing the Government of the United States by forceand violence, and (2) to organize, as the Communist Party of the UnitedStates, society of persons who so advocate and teach, all with theintent of causing the overthrow of the Government by force. Whilereversing the conviction of the Petitioners, the Supreme Court observedthat the district court failed to distinguish between advocacy of forcibleoverthrow and advocacy of action, by holding that advocacy of violentaction at some future time was enough.

43. Reliance was placed on Clarence Brandenberg (supra), asdiscussed above.

44. In Whitney v. California[57], the question which arose waswhether the petitioner, who joined and assisted in the organization of aCommunist Labor Party contravening the California Criminal SyndicalismAct, did so with knowledge of its unlawful character and purpose. TheSupreme Court of the United States of America, while upholding theconstitutionality of the abovementioned act, observed that the freedomof speech which is secured by the Constitution does not confer an absoluteright to speak, without responsibility. Furthermore, although the rights offree speech and assembly are fundamental, they are not, in their nature,absolute.

In Indra Das, reliance was placed on the concurring opinion of Mr.Justice Brandeis wherein he observed that fear of serious injury cannotalone justify suppression of free speech and assembly. It is the function ofspeech to free men from the bondage of irrational fears. To justifysuppression of free speech, there must be reasonable ground to fear thatserious evil will result if free speech is practiced. There must be reasonableground to believe that the danger apprehended is imminent. There must bereasonable ground to believe that the evil to be prevented is serious one.

45. Reliance was placed on the dissenting opinion of Mr. JusticeHolmes in Gitlow v. New York[58]. In this case, the appellant was amember of the Left-Wing Section of the Socialist Party. He was indictedfor advocating the overthrow and upending of the organized government.The majority opinion reiterated that it is fundamental principle, longestablished, that the freedom of speech and of the press which is securedby the Constitution does not confer an absolute right to speak or publish,

57 274 US 357 (1926)

58 268 US 652 (1925)

Awithout responsibility. State may punish utterances endangering thefoundations of organized government and threatening its overthrow byunlawful means. These imperil its own existence as constitutional State.Freedom of speech and press does not protect disturbances to the publicpeace or the attempt to subvert the government. The constitutionality ofthe statute and conviction of the appellant was upheld. Justice HolmesBobserved that:

“It is manifest that there was no present danger of an attemptto overthrow the government by force on the part of the admittedlysmall minority who shared the defendant’s views. It is said thatthis manifesto was more than theory, that it was an incitement.CEvery idea is an incitement.

If the publication of this document had been laid as an attemptto induce an uprising against government at once, and not at someindefinite time in the future, it would have presented differentquestion. …. but the indictment alleges the publication, and nothingDmore.”

46. In Terminiello v. Chicago[59], the Petitioner was charged withviolation of an ordinance forbidding any “breach of the peace”.Whilereversing his conviction, the Supreme Court of the United States ofAmerica held that function of free speech under our system ofEgovernment is to invite dispute. It may indeed best serve its high purposewhen it induces condition of unrest, creates dissatisfaction withconditions as they are, or even stirs people to anger. The Court observedthat “..speech is often provocative and challenging.”

47. In De Jonge v. Oregon[60], the Appellant was charged on theFbasis that he assisted in the conduct of meeting which was called underthe auspices of the Communist Party, an organization advocating criminalsyndicalism. The Supreme Court of the United States of America whileconsidering the Criminal Syndicalism Law of Oregon held that “none ofour decisions goes to the length of sustaining such curtailment of theGright of free speech and assembly as the Oregon statute demands in itspresent application.” Reliance was placed on the abovementioneddecisions in Gitlow (supra) and Whitney (supra).

59 337 US 1 (1948)60 299 US 353 (1936)

Conclusions

48. The abovementioned decisions are in contradistinction to thescenario in question in India. The American decisions primarily involveindictment on the basis of membership of political organizations or incidentsof free speech advocating overthrow of the government. However, underIndian law, it is not membership of political organizations etc. or freespeech or criticism of the government that is sought to be banned, it isonly those organizations which aim to compromise the sovereignty andintegrity of India and have been notified to be such and unlawful, whosemembership is prohibited. This is in furtherance of the objective of theUAPA, which has been enacted to provide for the more effectiveprevention of certain unlawful activities of individuals and associationsand dealing with terrorist activitiesand for matters connected therewith.The distinction, therefore, is clear.

49. Furthermore, the UAPA provides for system of checks &balances and public notification for any association being declaredunlawful:

•S.3 of the Act, states that the Central Government mustpublish notification declaring an unlawful association inthe Official Gazette and Daily Newspaper in the State inwhich the principal office of the association affected issituated. Furthermore, the Association must be notified byaffixing copy on its office or by serving its office bearersor by means of loudspeakers.

•Under S.4 of the Act, any notification under S.3 of the Act,shall be adjudicated upon by the Tribunal for the purpose ofwhether or not there is sufficient cause for declaring theassociation unlawful. In this adjudication, the association isgiven an opportunity to be heard. S.5 provides for setting upthis UAPA Tribunal, to which no person shall be appointed

unless he is Judge of High Court.

•Under S.10 of the Act, which may be termed as the genesisif the present controversy to be adjudicated upon, in myunderstanding is forthcoming in its meaning. “Is and continuesto be” implies that person, even after the organizationbeing so notified as unlawful, is and continues to be amember, would attract penalty under the said section. Theuse of the conjunction “and’’ means that both of the

Aabovementioned conditions have to be satisfied. [HyderabadAsbestos Cement Products and Anr. v. Union of Indiaand Ors.[61], (three-Judge Bench)]

It is important to reiterate, that the above observations have beenmade in light of and for application to the present reference.

B50.Importantly, Shreya Singhal (supra) captures the situation inregards the use of judgments of the Supreme Court of the United Statesof America aptly to say that those judgments are of “great persuasivevalue” but it also notes that there is “a world of difference” between theAmerican and Indian scenario, so far as, subserving public interest isCconcerned. It is this difference which seemed to have escaped the learneddivision bench’s attention in Arup Bhyan and Indra Das.

51.As recorded by the Constitution (First Amendment) Act, 1951,issues in the functioning and implementation of such rights were beingfaced right from the start and so the law-making authority, in order toensure smooth functioning of law. This Court cannot be oblivious to suchDfact. The vast, varied and scholarly jurisprudence developed by this courthas been in view of these clauses within Article 19. Now, at this juncture,seven decades thence, in my view stand of whichever court, cannot beallowed to stand if it is in ignorance of constitutional provisions. I mayhasten to add that neither I, or this bench, nor any other court would holdEotherwise to state that influences or even borrowing from otherconstitutions has not taken place in the formation of our constitution, but,it is equally and ever so more important to note, that the developmentthereof has been done in specific context of the situations and conditionsprevalent in India.

52. In light of the above, I may conclude that placing reliancetherefore, on decisions rendered in distinct scenario as well as ademonstrably different constitutional position, that too almost singularly,especially in cases which involve considerations of national security andsovereignty, was not justified.

53. The reference is answered in the above terms.G

Bibhuti Bhushan Bose(Assisted by : Abhishek Agnihotri and Shubhanshu Das, LCRAs)

Reference answered.