Brief Facts
- This case arose out of a reference against previous decisions of the Hon’ble Supreme Court wherein the Hon’ble Court rejected the doctrine of “guilt by association” and observed that mere membership of a banned organization will not incriminate a person unless he resorts to violence or incites people to violence and does an act intended to create disorder or disturbance of public peace by resort to violence.
Issues
- Whether “active membership” is required to be proven over and above the membership of a banned organization under the UAPA, 1967?
- Whether this Court was justified in reading down of a provision (Section 10(a)(i) of the UAPA Act, 1967) without impleading the Union of India as a party and more particularly when the constitutional validity of the aforesaid provision was not called in question?
Held
- he 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 380 taking the view that under Section 3(5) of Terrorists and Disruptive Activities (Prevention) Act, 1987 and Section 10(a)(i) of the Unlawful Activities (Prevention) Act, 1967 mere membership of a banned organization will not incriminate a person unless he resorts to violence or incites people to violence and does an act intended to create disorder or disturbance of public peace by resort to violence and reading down the said provisions to mean that over and above the membership of a banned organization there must be an overt act and/or further criminal activities and adding the element of mens rea are held to be not a good law.
- It is observed and held that when an association is declared unlawful by notification issued under Section 3 which has become effective of sub-section 3 of that Section, a person who is and continues to be a member of such association is liable to be punished with imprisonment for a term which may extend to two years, and shall also be liable to fine under Section 10(a)(i) of the UAPA, 1967.
- Once an association is declared unlawful of whom the concerned person was the member wishes to continue as a member despite the fact that he is well aware of the fact that such an association is declared unlawful and if he still wishes to continue being a part of such unlawful association it shows a conscious decision on his part and therefore liable to be penalized for such an act of continuation of his membership with such unlawful association. Therefore, thereafter he may not make grievance of chilling effect.
- It was held that in absence of any challenge to the constitutional validity of Section 10(a)(i) of the UAPA there was no question of reading down 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 the said provision. This Court ought not to have read down Section 10(a)(i) of the UAPA, 1967 more particularly when neither the constitutional validity of Section 10(a)(i) of the UAPA, 1967 was under challenge nor the Union of India was heard.
Relevant Para No.
11.3, 11.5, 17.1, 18