TMI Blog2011 (2) TMI 1507X X X X Extracts X X X X X X X X Extracts X X X X ..... named in the FIR. No prosecution witness has attributed any role to the appellant. The charge sheet in the case was filed after a gap of nine years from the date of the commission of the offence, and charges were framed more than four years after filing of the charge sheet. There is no evidence against the appellant except the confessional statement. 5. The alleged confession was subsequently retracted by the appellant. The alleged confession was not corroborated by any other material. We have held in Arup Bhuyan's case (supra) that confession is a very weak type of evidence, particularly when alleged to have been made to the police, and it is not safe to convict on its basis unless there is adequate corroborative material. In the present case there is no corroborative material. 6. However, the appellant has been convicted under Section 3(5) of TADA which makes mere membership of a banned organization a criminal act, and sentenced to five years rigorous imprisonment and ₹ 2000/- fine. 7. In Arup Bhuyan's case (supra) we have stated that mere membership of a banned organization cannot incriminate a person unless he is proved to have resorted to acts of viole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary of State 378 US 500, Baggett vs. Billit 377 US 360, Cramp vs. Board of Public Instructions 368 US 278, Gibson vs. Florida 372 US 539, etc. 13. In Noto vs. U.S. 367 US 290(297-298) Mr. Justice Harlan of the U.S. Supreme Court observed : .........The mere teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend colour to the otherwise ambiguous theoretical material regarding Communist Party teaching. 14. In Noto's case (supra) Mr. Justice Hugo Black in a concurring judgment wrote : In 1799, the English Parliament passed a law outlawing certain named societies on the ground that they were engaged in `a traitorous Conspiracy ........... in conjunction with the Persons from Time to Time exercising the Powers of Government in France .......' One of the many strong arguments made by those who opposed the enactment of this la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gents to prepare a list of subversive organizations and to deny jobs to teachers belonging to those organizations. The law made membership in the Communist Party prima facie evidence for disqualification from employment. Mr. Justice Brennan, speaking for the Court held that the law was too sweeping, penalizing mere knowing membership without a specific intent to further the unlawful aims. 18. In Yates vs. U.S., 354 US 298 (1957), Mr. Justice Harlan of the U.S. Supreme Court observed : In failing to distinguish between advocacy of forcible overthrow as an abstract doctrine and advocacy of action to that end, the District Court appears to have been led astray by the holding in Dennis that advocacy of violent action to be taken at some future time was enough. The District Court apparently thought that Dennis obliterated the traditional dividing line between advocacy of abstract doctrine and advocacy of action. 19. In Brandenburg vs. Ohio, 395 US 444(1969), which we have referred to in our judgment, the U.S. Supreme Court by a unanimous decision reversed its earlier decision in Whitney vs. California, 274 US 357 (1927) and observed : The Constitutional guarantees of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outweighs it, or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence my set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way. If the publication of this document had been laid as an attempt to induce an uprising against government at once, and not at some indefinite time in the future, it would have presented a different question. The object would have been one with which the law might deal, subject to the doubt whether there was any danger that the publication could produce any result; or, in other words, whether it was not futile and too remote from possible consequences. But the indictment alleges the publication and nothing more. 23. In Terminiello vs. Chicago, 337 US 1 (1949) Mr. Justice Douglas o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the government that the 1st Amendment left the common law as to seditious libel in force. History seems to me against the notion. (emphasis supplied) 26. It has been submitted by the learned counsel for the Government before the TADA Court that under many laws mere membership of an organization is illegal e.g. Section 3(5) of Terrorists and Disruptive Activities, 1989, Section 10 of the Unlawful Activities (Prevention ) Act 1967, etc. In our opinion these statutory provisions cannot be read in isolation, but have to be read in consonance with the Fundamental Rights guaranteed by our Constitution. 27. The Constitution is the highest law of the land and no statute can violate it. If there is a statute which appears to v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revention) which on their plain language make mere membership of a banned organization criminal have to be read down and we have to depart from the literal rule of interpretation in such cases, otherwise these provisions will become unconstitutional as violative of Articles 19 and 21 of the Constitution. It is true that ordinarily we should follow the literal rule of interpretation while construing a statutory provision, but if the literal interpretation makes the provision unconstitutional we can depart from it so that the provision becomes constitutional. 32. As observed by this Court in Government of Andhra Pradesh vs. P. Laxmi Devi (supra) every effort should be made by the Court to try to uphold the validity of the statute, as invalidating a statute is a grave step. Hence we may sometimes have to read down a statute in order to make it constitutional. 33. This principle was examined in some detail by the Federal Court in In re Hindu Women's Right to Property Act, AIR 1941 F.C 12 in considering the validity of the Hindu Women's Right to Property Act, 1937. The Act, which was passed by the Council of State after commencement of Part III of the Government of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional validity of the Section, the Court differing from the Privy Council adopted the construction placed by the Federal Court and held that on a correct construction, the provisions of the Section are limited in their application to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence; and one of the reasons for adopting this construction was to avoid the result of unconstitutionality in view of Articles 19(1)(a) and 19(2) of the Constitution. 35. In Sunil Batra vs. Delhi Administration AIR 1978 SC 1675 the Supreme Court upheld the validity of Section 30(2) of the Prisons Act, 1894, which provides for solitary confinement of a prisoner under sentence of death in a cell and Section 56 of the same Act, which provides for the confinement of a prisoner in irons for his safe custody, by construing them narrowly so as to avoid their being declared invalid on the ground that they were violative of the rights guaranteed under Articles 14, 19 and 21 of the Constitution. 36. In New India Sugar Mills vs. Commissioner of Sales Tax AIR 1963 SC 1207, a wide definition of the word `sale' in the Bihar Sales Tax Act, 1947, wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords were read down to keep the legislation within permissible constitutional limits, is furnished in the construction of Section 5 of the Lotteries (Regulation) Act, 1998 which reads: `A State Government may, within the State prohibit the sale of tickets of a lottery organized conducted or promoted by every other State'. To avoid the vice of discrimination and excessive delegation, the Section was construed to mean that a State can only ban lotteries of other States, when it decides as a policy to ban its own lotteries, or in other words, when it decides to make the State a lottery free zone vide BR Enterprises vs. State of U.P. AIR 1999 SC 1867. 42. It may be mentioned that there were Constitutions in our country even under British Rule e.g. the Government of India Act, 1935, and the earlier Government of India Acts. These Constitutions, however, did not have fundamental right guaranteed to the people. In sharp contrast to these is the Constitution of 1950 which has fundamental rights in Part III. These fundamental rights are largely on the pattern of the Bill of Rights to the U.S. Constitution. 43. Had there been no Constitution having Fundamental Rights in it then of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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