The Supreme Court on Friday overruled its 2011 judgements that had stated that merely being a member of a banned association is not sufficient to constitute an offence under the Unlawful Activities (Prevention) Act, 1967, or the now-repealed Terrorism and Disruptive Activities (Prevention) Act, reported Live Law.
By overruling the older judgements, a bench of Justices MR Shah, CT Ravikumar and Sanjay Karol upheld Section 10(a)(i) of the UAPA that makes membership of an unlawful organisation an offence.
In one of the judgements set aside, the Supreme Court had acquitted suspected United Liberation Front of Asom member Arup Bhuyan, who was held guilty under UAPA by a trial court, reported PTI. The Supreme Court had said that just because he is a member of a banned organisation does not make him a criminal unless he resorts to violence or incites others.
The Supreme Court had held a similar view in State of Kerala versus Raneef case related to a bail application. In this judgement, the court had relied upon three United States’ Supreme Court decisions that had rejected the doctrine of “guilt by association”.
In February, the Supreme Court heard a plea filed by the Union government seeking review of these two 2011 verdicts, arguing that the interpretation of central laws was made without hearing its side, reported the Hindustan Times. In 2014, a division bench had referred the matter to a larger bench.
In its judgement on Friday, the court held that the 2011 rulings were passed in bail applications in which the constitutionality of the UAPA and TADA provisions were not questioned. It said that the constitutional validity of the two laws has been upheld in earlier judgements.
“When a Parliamentary legislation is read down in the absence of the Union, enormous harm would be caused to State if they are not heard,” the three-judge bench said.
The court stated that the judges who passed the 2011 judgements should not have relied on US’ Supreme Court order.
“We do not say for a moment that US Supreme Court decisions may not guide us,” the bench said. “But Indian courts are required to consider the difference in nature of laws between two countries.”
During the hearings in February, Solicitor General Tushar Mehta had argued that the 2011 verdicts failed to see several facts, including the intent of the law and that Parliament had made the provisions in view of national security.
“If Lashkar-e-Taiba is a banned organisation, a person cannot say I am just a member and have a right to remain a member,” Mehta had submitted. “The right to form an association cannot be an unbridled right, and when it affects sovereignty and integrity of the country, restrictions will be reasonable. The law is preventive in nature and not just punitive.”
Senior Advocate Sanjay Parikh, appearing for an intervenor non-government organisation, had argued that a series of judgements by the Supreme Court since the 1960s have held that there must be an overt act of incitement or violence before a person can be prosecuted.