-Report by Bhavana Bhandari
In the case of Arup Bhuyan v. State of Assam Home Department and anr. 2023 (SC) 234, the Supreme Court ruled on Friday that membership in an organization deemed unlawful by the Central government is sufficient to establish an offence under the Unlawful Activities Prevention Act (UAPA). In the decision, the court reversed its previous ruling from 2011, in which it had concluded that mere membership in a prohibited organization under the Act could not be grounds for conviction unless it was accompanied by some overt violent behaviour. Whereas the Solicitor General of India represented the respondents, Senior Advocate Sanjay Parikh represented the appellants.
In 2011, a two-judge bench comprising justices Markandey Katju and Gyan Sudha Mishra exonerated Arup Bhuyan and Indra Das for the violations of the Terrorist and Disruptive Activities (Prevention) Act (TADA). The judgment was reached relying on an alleged confession statement and that mere membership in a prohibited organization under the Act could not be considered a valid ground for conviction under the Act.
In State of Kerala v. Raneef, the 2011 Bench made the pertinent observation that, among other things, the American Bill of Rights and a few US Supreme Court decisions maintaining that Section 3(5) of the Act cannot be properly interpreted without violating Articles 19 and 21 of the Constitution. Therefore, a person is not necessarily a criminal just because they belong to a prohibited organization until they use violence, inspire others to use violence, or cause a commotion by using violence or inciting others to use violence. “
When the Union Government filed a request for reference in 2014, a two-judge panel composed of Justices Dipak Misra and AM Sapre referred the case to a larger bench. The matter was finally heard on February 8, 2023, and a conclusion was reached on March 24, 2023.
Senior Attorney Sanjay Parikh argued for an intervenor-NGO that in cases involving substantive rights, such as personal liberty, provisos might be read down even when not directly challenged. He argued that as civil freedoms are protected by the Indian and American constitutions, it would be improper to invalidate the orders that are being challenged because they were based on US court decisions.
Solicitor General Tushar Mehta, appearing as counsel for the Central Government asserted that it was intrinsically difficult to show formal involvement in prohibited organizations since the requirements mentioned were a barrier and a safeguard. The SG further emphasized that under the current structure, terrorist activity might be permitted as long as it wasn’t ostensibly committed under the banner of groups that were outlawed or considered a terrorist.
The Union government and certain state governments contended that the supreme court’s reading of the UAPA cases had effectively read down the aforementioned proviso by referencing the American Bill of Rights, making it more challenging to fight terrorism. The Central Government argued that the Court could not pronounce the contents of an anti-terror law unconstitutionally without first hearing its defences and relying on probable legal abuse.
The Court’s reliance on the Bill of Rights was improper in light of the Supreme Court’s prior decision in Babulal Parate v. State of Maharashtra, which was decided by a five-judge panel. Consequently, American jurisprudence could not be authorized under the constitution as there are not any provisions in the American Constitution that equate to Article 19 Clauses (2) through (6).
The decision came from a three-bench judge comprising of justices MR Shah, CT Ravikumar, and Sanjay Karol holding the validity of section 10(a)(i) of the Unlawful Activities Prevention Act (UAPA). Since the primary intention of the UAPA act is to prevent certain unlawful activities and penalize people who are members of such unlawful groups under the Act. As a result, Section 10(a)(i) is fully compliant with Articles 19(1)(a) and 19(2) of the Constitution and, as a result, with the purposes of the UAPA.
Another issue that the Court had to address was whether or not sections of central legislation may be read down in a situation where those provisions were not challenged and the central government had not been heard. In this regard, the Court found that the State would suffer severe injury if the same was not heard. The Centre was required to submit arguments to support 10(1)(i) and to establish the goals and objectives. Hence, this Court should not have read down Section 10(a)(i), especially when the Section’s constitutionality was not in doubt.
The bench stated in its ruling today that the 2011 decisions were made in bail petitions when the constitutionality of the rules was not contested. In addition, past decisions have upheld the constitutionality of the UAPA and TADA. The 2011 pronouncements were also heavily criticized for interpreting the laws without addressing the Union of India.
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