TMI Blog2023 (3) TMI 1459X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India was not a party and/or the Union of India was not even heard while deciding the case of Raneef. Despite the above, this Court while deciding the bail application has made certain observations that mere membership of a banned organization will not make a person a criminal and/or mere membership of a banned organization cannot be an offence. In the case of Raneef this Court has heavily relied upon and followed the American Supreme Court decisions which were dealing with the relevant provisions of the American Laws and/or the laws prevailing in the America. Now so far as the reading down of Section 10(a)(i) of the UAPA, 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 of the provision of a statute could not have been made without hearing the Union of India and/or without giving any opportunity to the Union of India. When any provision of Parliamentary legislation is read down in the absence of Union of India it is likely to cause enormous harm to the interest of the State. If the opportunity would have been given to the Union of India to put forward its case on the provisions of Section 10(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions on the exercises of the right conferred by the said sub-clauses in the interests of sovereignty and integrity of India, the security of State - As per Article 19(4) nothing in Sub-clause (c) (Right to form Associations or Unions) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause. At this stage the statement of objects and reasons for amending Article 19(2)(3) (4) are required to be referred to and considered. Before any organization is declared unlawful a detailed procedure is required to be followed including the wide publicity and even the right to a member of such association to represent before the Tribunal. As observed hereinabove the notification issued by the Central Government declaring a particular association unlawful, the same is subject to inquiry and approval by the Tribunal as per Section 4. Once that is done and despite that a person who is a member of such unlawful association continues to be a member of such unlawful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Official Gazette and Daily Newspaper in the State in which the principal office of the association affected is situated. Furthermore, the Association must be notified by affixing a copy on its office or by serving its office bearers or by means of loudspeakers. Under Section 4 of the Act, any notification Under Section 3 of the Act, shall be adjudicated upon by the Tribunal for the purpose of whether or not there is sufficient cause for declaring the association unlawful. In this adjudication, the association is given an opportunity to be heard. Section 5 provides for setting up this UAPA Tribunal, to which no person shall be appointed unless he is a Judge of a High Court. Under Section 10 of the Act, which may be termed as the genesis if the present controversy to be adjudicated upon, in my understanding is forthcoming in its meaning. Is and continues to be implies that a person, even after the organization being so notified as unlawful, is and continues to be a member, would attract penalty under the said section. The use of the conjunction and means that both of the abovementioned conditions have to be satisfied. It is thus concluded that placing reliance there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unition. That is not the allegation in the present case. The decision in State of Maharashtra v. Dhanendra Shriram Bhurle 2009(11) SCC 541 is also distinguishable because good reasons have been given in the present case by the High Court for granting bail to the Respondent. In the present case there is no evidence as yet to prove that the P.F.I. is a terrorist organization, and hence the Respondent cannot be penalized merely for belonging to the P.F.I. Moreover, even assuming that the P.F.I. is an illegal organization, we have yet to consider whether all members of the organization can be automatically held to be guilty. 11. In Scales v. United States 367 U.S. 203 Mr. Justice Harlan of the U.S. Supreme Court while dealing with the membership Clause in the McCarran Act, 1950 distinguished between active 'knowing' membership and passive, merely nominal membership in a subversive organization, and observed: The Clause does not make criminal all association with an organization which has been shown to engage in illegal activity. A person may be foolish, deluded, or perhaps mere optimistic, but he is not by this statute made a criminal. There must be clear proof that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the 'UAPA Act, 1967') was under challenge and/or the constitutionality of the said provision was under challenge nor even the Union of India was a party to the said proceedings and the Division Benches of the Court in the aforesaid two decisions made observations on Section 10(a)(i) of the UAPA Act, 1967 without giving any opportunity to the Union of India. Therefore, the Union of India filed the applications seeking permission to file a review petition on the ground that the interpretation made by this Court in the aforesaid two decisions would be prejudicial to their interests and therefore, the Union of India had a right to be heard. The State of Assam also preferred the review petitions. 2.3. Having regard to the important issue raised by the learned Solicitor General and the Senior Counsel for the State of Assam, by order dated 26.08.2014 reported in (2015) 12 SCC 702 the matter is referred to the larger Bench. While referring the matter to the larger Bench this Court noted the submissions made by the learned Solicitor General in paragraphs 4 to 7 and 10 to 11 as under: 4. Mr. Ranjit K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty attached only to those competitions which involved the element of gambling and those competitions in which success depended to a substantial degree on skill were held to be out of the purview of the Act. The ratio decidendi in that case, in our opinion, applied to the case in hand in so far as we propose to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace. 5. It is submitted by Mr. Ranjit Kumar that such reading down of a provision should not have been done without impleading the Union of India as a party and moreover, when the constitutional validity was not called in question. He has drawn our attention to Section 10 of the Unlawful Activities (Prevention) Act, 1967. It reads as follows: [10. Penalty for being member of an unlawful association, etc.- Where an association is declared unlawful by a notification issued Under Section 3 which has become effective Under Sub-section (3) of that section,- (a) a person, who (i) is and continues to be a member of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relying on the said decisions by giving emphasis on the facet of mens rea. The submission in essence, is that had the Union of India been impleaded as a party it could have put forth its stand before the Court and then possibly such reading down of the provision would not have been required. 7. Mr. Jaideep Gupta, learned Senior Counsel appearing for the State of Assam, supporting the stand put forth by the Union of India has urged that if such an interpretation is allowed to stand the terrorism would spread and it will be difficult on the part of the State to control the said menace. It is further canvassed by him that the abuse of process of law would not affect the constitutional validity and that to when it is not under assail. xxx xxx xxx 10. The crux of the matter as submitted by Mr. Ranjit Kumar, learned Solicitor General for Union of India, is that when any provision in Parliamentary legislation is read down, in the absence of Union of India it is likely to cause enormous harm to the interest of the State as in many cases certain provisions have been engrafted to protect the sovereignty and integrity of India. 11. The learned Solicitor General would contend that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a party and more particularly when the constitutional validity of the aforesaid provision was not called in question? 2.5. While appreciating the submissions on behalf of the respective parties 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, and the expressions terrorism and terrorist shall be construed accordingly; (l) terrorist gang means any association, other than terrorist organisation, whether systematic or otherwise, which is concerned with, or involved in, terrorist act; (m) terrorist organisation means an organisation listed in the 9[First Schedule] or an organisation operating under the same name as an organisation so listed; (o) unlawful activity, in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the association affected is situated, and shall also be served on such association in such manner as the Central Government may think fit and all or any of the following modes may be followed in effecting such service, namely: (a) by affixing a copy of the notification to some conspicuous part of the office, if any, of the association; or (b) by serving a copy of the notification, where possible, on the principal 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 activities of 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 a notification issued Under Sub-section (1) of Section 3, the Central Government shall, within thirty days from the date of the publication of the notification under the said Sub-section, refer the notification to the Tribunal for the purpose of adjudicating whether or not there is sufficient cause for declaring the association unlawful. (2) On receipt of a reference Under Sub-section (1), t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely: (a) the summoning and enforcing the attendance of any witness and examining him on oath; (b) the discovery and production of any document or other material object producible as evidence; (c) the reception of evidence on affidavits; (d) the requisitioning of any public record from any court or office; (e) the issuing of any commission for the examination of witnesses. (7) Any proceeding before the Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860) and the Tribunal shall be deemed to be a civil court for the purposes of Section 195 and 1[Chapter XXVI] of the 2[Code]. Section 6 - Period of operation and cancellation of notification - (1) Subject to the provisions of Sub-section (2), a notification issued Under Section 3 shall, if the declaration made therein is confirmed by the Tribunal by an order made Under Section 4, remain in force for a period of 1 [five years] from the date on which the notification becomes effective. (2) Notwithstanding anything contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and reasons for enactment of the UAPA. It is submitted that to achieve the object and purpose for which the UAPA has been enacted, Section 10(a)(i) provides that where an association is declared unlawful by a notification issued Under Section 3 which has become effective Under Sub-section (3) of that Section, a person, who is and continues to be a member of such association shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine. It is submitted that therefore so long as Section 10(a)(i) stands a person who is or continues to be a member of such association shall be liable to be punished. It is submitted that Section 10(a)(i) does not require any further overt act and/or mens rea. It is submitted that mere membership of a declared unlawful association, declared unlawful Under Section 3 is sufficient to warrant the prosecution and the conviction. 3.2. It is submitted that under the provisions of the UAPA, 1967 before an organization/association is declared as unlawful Under Section 3 of the UAPA the procedure as required under the UAPA namely Section 3 of the UAPA is required to be followed. It is submitted that even th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Raneef (supra) and Arup Bhuyan (supra) that while considering the offences Under Sections 10(a)(i) the prosecution has to prove the active membership of any person Accused of being a member of a banned organization, it is submitted that in the case of Arup Bhuyan (supra) this Court has just followed the observations made in the earlier decision in the case of Raneef (supra) in which this Court just accepted and followed the American decisions referred to on the freedom of speech applicable in America and considering the American doctrine on freedom of speech. It is submitted that as such this Court ought not to have straight way followed and/or accepted the American doctrine on freedom of speech without taking into consideration the Constitutional provisions so far as the India is concerned, more particularly Article 19(1)(c) and 19(4) of the Constitution. It is submitted that this Court in the case of Babulal Parate v. State of Maharashtra, (1961) 3 SCR 423 has specifically rejected the importing of the American doctrine on freedom of speech and specifically rejected the said importing in the context of 'determining criminality' by way of two Constitution Bench ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes, 249 U.S. 47 (1919)] and imminent lawless action [Brandenburg v. Ohio, 95 U.S. 444 (1969)] are alien to Indian constitutional law. 4.5. Making above submissions, it is submitted that the observations made by this Court in Raneef (supra) and Arup Bhuyan (supra) following and/or relying upon the American doctrines on freedom of speech may be overruled and the statutory position be reaffirmed. 5. Now so far as reading down Section 3(5) of Terrorist and Disruptive Activities (Prevention) Act, 1987, which is pari materia to Section 10(a)(i) of UAPA Act, 1967 and reading down the said provision to the extent by observing that mere membership of a banned organization will not make a person guilty unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence and that mere membership of a banned organization will not incriminate a person is concerned, it is vehemently submitted by Shri Tushar Mehta, learned Solicitor General that as such in absence of challenge to the relevant provisions, more particularly Section 10(a)(i) of the UAPA, 1967, such a reading down was not permissible. It is submitted that as such in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e continues to be a member. It is submitted that therefore a person who is a member or wishes to be a member 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 an unlawful association it shows a clear and conscious intention on his part and Section 10 of the UAPA Act penalises this act of mere membership with such unlawful association. 6.2. It is further submitted that Section 38 of the UAPA Act, 1967 provides that a person who associates himself or professes to be associated with a terrorist organization with intention to further its activities commits an offence relating to the membership of a terrorist organization. It is submitted that therefore it is seen that in case of a terrorist organization mere membership is not sufficient but there has to be an act with intention to further the activities of the terrorist organization which is not the case Under Section 10 with an unlawful association. 6.3. It is submitted that there is a clear distinction between the provisions Under Section 10 which punish mere membership of an unlawful association and Section 38 which do not punish passive membership w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t we can either declare it unconstitutional or we can read it down to make it constitutional. c. Had there been no Constitution having fundamental rights in it then of course a plain and literal meaning could be given to Section 3(5) of TADA or Section 10 of the Unlawful Activities (Prevention) Act. But since there is a Constitution in our country providing for democracy and fundamental rights we cannot give these statutory provisions such a meaning as that would make them unconstitutional. 7.1. It is submitted that in the case of Indra Das (supra), this Court has interpreted the relevant provisions of TADA and UAPA to bring them in conformity with the Constitution. 7.2. It is further submitted that this Court has on several occasions interpreted provisions to bring them in consonance with the Constitution and even by reading down to save the provisions from unconstitutionality. It is submitted that in the case of People's Union for Civil Liberties v. Union of India, (2004) 9 SCC 580 (paragraphs 48 49), this Court has read mens rea into the statute to save it from unconstitutionality. 7.3. It is submitted that in the case of State of Gujarat v. Shyamlal Mohanlal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Shreya Singhal (supra) has been recently relied upon and considered by one of the Hon'ble Judge of the Constitution Bench in the case of Kaushal Kishor v. State of Uttar Pradesh and Ors., while concurring on the question that the restrictions Under Article 19(2) are exhaustive. 7.7. It is further submitted by Shri Sanjay Parikh, learned Senior Counsel appearing on behalf of the Applicant that Shreya Singhal (supra) is the culmination of an unbroken line of Indian precedent stipulating that speech or association can be prevented or punished only if, Speech or association is 'intended' or has the 'tendency' to disturb 'public order', 'sovereignty and integrity of India', 'security of the state', or one of the other permitted ground of restrictions Under Article 19; and The connection between the speech or association and the 'intended' or likely effect on 'public order', 'sovereignty and integrity of India' or 'security of the state' is proximate not far-fetched, hypothetical or problematical or too remote in the chain of its relation. 7.8. Shri Parikh, learned Senior Counsel has relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke the equivalent of a spark in a 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 of the term 'public order' in Clause (4) of Article 19, that allows for reasonable restrictions on the right to Freedom of Association. It is submitted that 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. There can be no doubt that the said words must have the same meaning in both Clauses (2) and (4). It is further observed that ...a restriction can be said to be in the interests of public order only if the connection between the restriction and the public order is proximate and direct. Indirect or far-fetched or unreal connection between the restriction and public order would not fall within the purview of the expression in the interests of public 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 this Court that only where the written or spoken words have the tendency or intention of creating pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions have rightly read down the said provisions to bring them in consonance with Articles 14, 19 and 21 of the Constitution of India. 8.1. It is further submitted by Shri Sanjay Parikh, learned Senior Counsel that in the recent decision of this Court in the case of Thawaha Fasal v. Union of India, this Court has observed and held that mere association with a terrorist organization is not sufficient to attract Section 38 and mere support given to a terrorist organization is not sufficient to attract Section 39. It is submitted that it is further observed that association and the support have to be with intention of furthering the activities of a terrorist organization. 8.2. It is further submitted that even if there can be restrictions Under Article 19(2), in that case also, the restrictions should be reasonable and 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 the view 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 Pari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submitted that in the present case the Parliament in its wisdom and taking into consideration the sovereignty of India has thought it fit to enact the UAPA and provide Under Section 10(a)(i) that mere member of the banned organization itself is an offence. 9.3. Now so far as the submission of Shri Praikh, learned Senior Counsel on vagueness and possibility of misuse of Section 10(a)(i), it is submitted that as observed and held by this Court in catena of decisions vagueness and possibility of misuse cannot be a ground for reading down a declaration of unconstitutionality. It is submitted that possibility of abuse/misuse of a law would not be a relevant consideration while considering the constitutionality of a provision. Reliance is placed on the decisions of this Court in the case of Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955; Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225; T.N. Education Deptt. Ministerial and General Subordinate Services Assn. v. State of Tamil Nadu, (1980) 3 SCC 97 and Mafatlal Industrial Ltd. v. Union of India, (1997) 5 SCC 536. It is submitted that in the aforesaid decisions it is held that merely because power may sometimes be abuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the decisions of this Court in Raneef (supra), Arup Bhuyan (supra) and Indra Das Singh (supra) to the extent as above. 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 a notification issued Under Section 3 which has become effective Under Sub-section (3) of that section,-- (a) a person, who-- (i) is and continues to be a member of such association; or (ii) takes part in meetings of such association; or (iii) contributes to, or receives or solicits any contribution for the purpose of, such association; or (iv) in any way assists the operations of such association, shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine; and (b) a person, who is or continues to be a member of such association, or voluntarily does an act aiding or promoting in any manner the objects of such association and in either case is in possession of any unlicensed firearms, ammunition, explosive or other instrument or substance capable of causing mass des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the Respondent is guilty or not . 10.5. Now so far as the decision of this Court in the case of Arup Bhuyan v. State of Assam, (2011) 3 SCC 377, taking the view 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......., is concerned it is required to be noted that in the said decision this Court has just followed the decision in the case of Raneef (supra). In the said decision this Court has also considered some other American Judgments of the US Supreme Court (para 10 11). 10.6. From the judgment and order passed by this Court in the case of Arup Bhuyan (Supra), it appears that after referring to the decisions of the US Supreme Court in paras 10 11 thereafter this Court had read down Section 3(5) of TADA and has 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. 10.7. It is required to be noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and held by this Court in the case of Subramanian Swamy and Ors. v. Raju through Member, Juvenile Justice Board and Anr., (2014) 8 SCC 390 reading down the provision of a statute cannot be resorted to when the meaning of a provision is plain and unambiguous and the legislative intent is clear. This Court has thereafter laid down the fundamental principle of reading down doctrine as under: Courts must read the legislation literally in the first instance. If on such reading and understanding the vice of unconstitutionality is attracted, the courts must explore whether there has been an unintended legislative omission. If such an intendment can be reasonably implied without undertaking what, unmistakably, would be a legislative exercise, the Act may be read down to save it from unconstitutionality. At the cost of repetition, it is observed that reading down a particular statute even to save it from unconstitutionality is not permissible unless and until the constitutional validity of such provision is under challenge and the opportunity is given to the Union of India to defend a particular parliamentary statute . 11.5. In view of the above in all the aforesaid three decisions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law; .... . 24. The framework of our Constitution is different from that of the Constitution of the United States. Then again, the Supreme Court of the United States has held that the privileges and immunities conferred by the Constitution are subject to social control by resort to the doctrine of police power. It is in the light of this background that the test laid down in Scheneck case [Scheneck v. U.S., 249, US 47] has to be understood. 25. The language of Section 144 is somewhat different. The test laid down in the Section is not merely likelihood or tendency . The Section says that the Magistrate must be satisfied that immediate prevention of particular acts is necessary to counteract danger to public safety etc. The power conferred by the Section is exercisable not only where present danger exists but is exercisable also when there is an apprehension of danger. 26. Apart from this it is worthy of note that in Scheneck case [Scheneck v. U.S., 249, US 47] the Supreme Court was concerned with the right of freedom of speech and it observed: It well may be that the prohibition of law abridging the freedom of speech is not confined to previous restraints, although ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person playing loud music in his own house in the middle of the night may disturb public tranquillity, but he is not causing public disorder. Public order no doubt also requires absence of disturbance of a state of serenity in society but it goes further. It means, what the Frunch designate order publique, defined as an absence of insurrection, riot turbulence, or crimes of violence. The expression public order includes absence of all acts which are a danger to the security of the State and also acts which are comprehended by the expression order publique explained above but not acts which disturb only the serenity of others. 17. The English and American precedents and legislation are not of such help. The Public Order Act, 1936 was passed because in 1936 different political organisations marched in uniforms causing riots. In America the First Amendment freedoms have no such qualifications as in India and the rulings are apt to be misapplied to our Constitution. 12.4. Thereafter in the case of Supdt., Central Prison v. Dr. Ram Manohar Lohia, (1960) 2 SCR 821, this Court had taken note of the difference in the American Law and the Indian Law more particularly the restric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ech and expression is not violated by a law which requires that the name of the printer and publisher and the place of printing and publication should be printed legibly on every book or paper. 11. Thus, there is a marked distinction in the language of law, its possible interpretation and application under the Indian and the US laws. It is significant to note that the freedom of speech is the bulwark of a democratic Government. This freedom is essential for proper functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties, giving succour and protection to all other liberties. It has been truly said that it is the mother of all other liberties. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. It has been described as a basic human right , a natural right and the like. With the development of law in India, the right to freedom of speech and expression has taken within its ambit the right to receive information as well as the right of press. 12.6. In the case of Joseph Kuruvilla Vellu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the similar case of Kesavananda Bharati case, (1973) 4 SCC 225, it is noticed by this Court that there are structural differences in the Constitution of India and the Constitution of the United States of America. 13. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the different position of laws in US and in our country more particularly faced with Articles 19(1)(c) and 19(4) of the Constitution of India under which the right to freedom of speech is subject to reasonable restrictions and is not an absolute right and the constitution permits the Parliament to frame the laws taking into consideration the public order and/or the sovereignty of India, without noticing the differences in American Laws and the Indian laws, this Court in the case of Arup Bhuyan (supra) and Raneep (supra) has erred in straightway and directly following the US Supreme Court decisions and that too without adverting to the differences and the position of laws in India. 13.1. In the aforesaid two decisions without noticing the differences of the US Supreme Court (referred to in the said decisions) this Court has just followed the Ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said Sub-clause in the interests of [the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.] (4) Nothing in Sub-clause (c) of the said Clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of [the sovereignty and integrity of India or] public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. Relevant provisions of UAPA of 1967 are as under: 2. Definitions.--(1) In this Act, unless the context otherwise requires,-- (a) association means any combination or body of individuals; 9[(ec) person includes-- (i) an individual, (ii) a company, (iii) a firm, (iv) an organisation or an association of persons or a body of individuals, whether incorporated or not, (v) every artificial juridical person, not falling within any of the preceding sub-claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification shall, in addition to its publication in the Official Gazette, be published in not less than one daily newspaper having circulation in the State in which the principal office, if any, of the association affected is situated, and shall also be served on such association in such manner as the Central Government may think fit and all or any of the following modes may be followed in effecting such service, namely: (a) by affixing a copy of the notification to some conspicuous part of the office, if any, of the association; or (b) by serving a copy of the notification, where possible, on the principal 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 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 association has been declared unlawful by a notification issued Under Sub-section (1) of Section 3, the Central Government shall, within thirty days from the date of the publication of the notification under the said Sub-section, refer the notification t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose of the unlawful association, he may make an order prohibiting any person from using the articles save in accordance with the written orders of the District Magistrate. (4) The District Magistrate may thereupon make an order that no person who at the date of the notification was not a resident in the notified place shall, without the permission of the District Magistrate, enter, or be on or in, the notified place: Provided that nothing in this Sub-section shall apply to any near relative of any person who was a resident in the notified place at the date of the notification. (5) Where in pursuance of Sub-section (4), any person is granted permission to enter, or to be on or in, the notified place, that person shall, while acting under such permission, comply with such orders for regulating his conduct as may be given by the District Magistrate. (6) Any police officer, not below the rank of a sub-inspector, or any other person authorised in this behalf by the Central Government may search any person entering, or seeking to enter, or being on or in, the notified place and may detain any such person for the purpose of searching him: Provided that no female s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to 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 a term which may extend to seven years, and shall also be liable to fine. (2) Whoever, in any way, assists any unlawful activity of any association, declared unlawful Under Section 3, after the notification by which it has been so declared has become effective Under Sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. (3) Nothing in this Section shall apply to any treaty, agreement or convention entered into between the Government of India and the Government of any other country or to any negotiations therefor carried on by any person authorised in this behalf by the Government of India. 38. Offence relating to membership of a terrorist organisation.--(1) A person, who associates himself, or professes to be associated, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds sovereignty and integrity 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 shall affect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercises of the right conferred by the said sub-clauses in the interests of sovereignty and integrity of India, the security of State...... As per Article 19(4) nothing in Sub-clause (c) (Right to form Associations or Unions) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause. At this stage the statement of objects and reasons for amending Article 19(2)(3) (4) are required to be referred to and considered. 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at National Integration Council appointed a Committee on National Integration and Regionalisation to look into, inter alia, the aspect of putting reasonable restrictions in the interests of sovereignty and integrity of India and thereafter the UAPA has been enacted. Therefore, the UAPA has been enacted to make powers available for dealing with the activities directed against integrity and sovereignty of India. 14.3. Now let us consider the Preamble of the UAPA, 1967. As per Preamble, UAPA has been enacted to provide for the more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected therewith. Therefore the aim and object of enactment of UAPA is also to provide for more effective prevention of certain unlawful activities. That is why and to achieve the said object and purpose of effective prevention of certain unlawful activities the Parliament in its wisdom has provided that where an association is declared unlawful by a notification issued Under Section 3, a person, who is and continues to be a member of such association shall be punishable with imprisonment for a term which may extend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociation unlawful. As per Section 4(2) on receipt of a reference the Tribunal shall call upon the association affected by notice in writing to show cause, why the association should not be declared unlawful. Thereafter the Tribunal is required to hold an inquiry in the manner specified in Section 9 and after calling for such further information as it may consider necessary from the Central Government or from any office-bearer or member of the association, it shall decide whether or not there is sufficient cause for declaring the association to be unlawful and make, as expeditiously as possible and in any case within a period of six months from the date of the issue of the notification Under Sub-section (1) of Section 3, such order as it may deem fit either confirming the declaration made in the notification or cancelling the same. 14.5. Thus from the aforesaid it can be seen that before any organization is declared unlawful a detailed procedure is required to be followed including the wide publicity and even the right to a member of such association to represent before the Tribunal. As observed hereinabove the notification issued by the Central Government declaring a particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of such unlawful association alone cannot be a ground to punish such person including the 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 be applicable while considering the provisions of UAPA. The offences under Indian Penal Code and offences under the UAPA both are different. As observed hereinabove in the present case an association is declared unlawful after following due procedure as required Under Section 3 and subject to the approval by the Tribunal Under Section 4 and after giving an opportunity to such association, the office bearers of the association and even the member of the association. 15.1. Now so far as the reliance placed upon the decision of this Court in Kedar Nath Singh (supra) by Shri Parikh, learned Senior Counsel is concerned, at the outset it is required to be noted that the said decision was pre - Constitution (Sixteenth Amendment) Act, 1963. Post Kedar Nath Singh (supra) on the recommendation of the National Integration Council, Article 19(2) and 19(4) which operate as exception to freedom of speech and freedom of association respectively, have been amended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the member is declared as unlawful association due to its unlawful activities and acting against the interests of sovereignty and integrity of India and still he continues to be a member of such unlawful association thereafter such person cannot be permitted to submit on chilling effect. The consequences are provided under the Act itself. Such a person is made to understand and/or known that to continue with the membership of such unlawful association itself is an offence. Despite such knowledge still he continues then is liable to be punished more particularly so long as Section 10(a)(i) stands and is not declared unconstitutional. 17.1. At this stage it is required to be noted that as per Section 10(a)(i) a person cannot be punished merely because he was the member of such unlawful association. The language including Section 10 is very significant. 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 Section 3 has become effective Under Sub-section 3, that the latter part of that Section applies. The language of Section 10(a)(i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich may extend to two years, and shall also be liable to fine Under Section 10(a)(i) of the UAPA, 1967. Any other decisions of the High Court taking a contrary view are held to be not a good law and are specifically overruled by this Judgment. Reference is answered accordingly. Consequently, the Review applications filed by the Union of India and the State of Assam are hereby allowed. Now the main appeals/SLPs be placed before the concerned Bench for taking of such matters after obtaining the appropriate order from Hon'ble the Chief Justice. Per : Sanjay Karol, J. Reference made to this Court General Development of Article 19 of the Indian Constitution Specifically, Development of Article 19(1)(c) Distinction between Indian and American Constitution Background, import and relevance of decisions of Supreme Court of United States relied on in Arup Bhuyan Background, import and relevance of decisions of Supreme Court of United States relied on in Indra Das Conclusions I have perused the erudite opinion proposed by my esteemed colleague Hon'ble M.R. Shah, J., with which I concur. It is my further endeavour to trace the development of law on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istry place the papers before the Hon'ble Chief Justice of India for appropriate orders. 20. Therefore, the issue which arises for consideration is, whether the Hon'ble Division Bench in Arup Bhuyan v. State of Assam (2011) 3 SCC 377 and similarly in Sri Indra Das v. State of Assam (2011) 3 SCC 380 (two- Judge Bench) (hereafter referred to as 'Arup Bhuyan' and 'Indra Das', respectively) was correct in placing reliance on American decisions stating that the decisions apply to India too, as our fundamental rights are similar to the Bill of Rights in the US Constitution to read down Section 3(5) of Terrorist and Disruptive Activities Prevention Act, 1987/Section 10 of Unlawful Activities (Prevention) Act, 1967 (hereafter referred to as UAPA)? [Arup Bhuyan, Paragraph 12] General Development of Article 19 of the Indian Constitution 21. It is important, at the outset, to reproduce Article 19 of the Indian Constitution which reads as follows: 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; (d) to move freely throughout the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onalism appointed by the National Integration Council for preservation and maintenance of the integrity and sovereignty of the Union of India. 24. The interpretation of Article 19 and application of reasonable restrictions therein has been summarized by this Court in Dharam Dutt v. Union of India (2004) 1 SCC 712 (two-Judge Bench) in the following terms: 35. The scheme of Article 19 shows that a group of rights are listed as Clauses (a) to (g) and are recognized as fundamental rights conferred on citizens. All the rights do not stand on a common pedestal but have varying dimensions and underlying philosophies. This is clear from the drafting of Clauses (2) to (6) of Article 19. The framers of the Constitution could have made a common draft of restrictions which were permissible to be imposed on the operation of the fundamental rights listed in Clause (1), but that has not been done. The common thread that runs throughout Clauses (2) to (6) is that the operation of any existing law or the enactment by the State of any law which imposes reasonable restrictions to achieve certain objects, is saved; however, the quality and content of such law would be different by reference to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t merely a right of speech and expression but a right to freedom of speech and expression. The enumeration of other rights is not by reference to freedom. In the words of the then Chief Justice Patanjali Sastri in State of W.B. v. Subodh Gopal Bose [AIR 1954 SC 92 : 1954 SCR 587] these rights are great and basic rights which are recognized and guaranteed as the natural rights, inherent in the status of a citizen of a free country. Yet, there cannot be any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint. Had there been no restraints, the rights and freedoms may tend to become the synonyms of anarchy and disorder. The founding fathers of the Constitution, therefore, conditioned the enumerated rights and freedoms reasonably and such reasonable restrictions are found to be enumerated in Clauses (2) to (6) of Article 19... (Emphasis supplied) 25. While considering the reasonableness of the restrictions imposed Under Article 19(2) to 19(6), a Constitution Bench of this Court in State of Madras v. VG Row 1952 SCR 597 (five-Judge Bench) observed as under: 22. This Court had occasion in Khare case [N.B. Khare v. St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to form associations which are subject to reasonable restrictions Under Article 19(4). These reasonable restrictions are not limited to formation of the association but extends to effective functioning of the association relating to lawful objectives. [A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy (2011) 9 SCC 286 (two-Judge Bench)] 29. A Constitution Bench of this Court in Raghubar Dayal Jai Prakash v. Union of India AIR 1962 SC 263 (five-Judge Bench), made specific reference to restrictions imposed by statutes, vis- -vis Article 19(1)(c) and observed as under: 11. ... An application for the recognition of the association for the purpose of functioning under the enactment is a voluntary act on the part of the association and if the statute imposes conditions subject to which alone recognition could be accorded or continued, it is a little difficult to see how the freedom to form the association in affected unless, of course, that freedom implies or involves a guaranteed right to recognition also..... 30. Furthermore, this Court, while considering the constitutional validity of the Indian Council of World Affairs Ordinance 2001, in Dharam Dutt (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, as relied upon in Arup Bhuyan and Indra Das, however no such explicit power is available with the Legislature. 34. This distinction has been enunciated by this Court as well. In Babulal Parate v. State of Maharashtra (1961) 3 SCR 423, as submitted by the Union of India, a Constitution Bench of this Court (five-Judge Bench) while upholding the constitutional validity of Section 144, Code of Criminal Procedure has held that whatever may be the position in the United States, the anticipatory action Under Section 144, Code of Criminal Procedure is permissible Under Clauses (2) and (3) of Article 19, which allow the legislature to make laws placing reasonable restrictions on the rights conferred by these clauses of Article 19. Importantly, this Court further observed there is nothing in the American Constitution corresponding to Clauses (2) to (6) of Article 19 of the Indian Constitution. It was further observed that the framework of the Indian Constitution is different from the American Constitution. 35. The above distinction in Babulal Parate (supra), was reaffirmed by another Constitution Bench in Madhu Limaye v. Sub-Divisional Magistrate (1970) 3 SCC 746 (seven-Judge Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Shriram - Oleum Gas) (five-Judge Bench); Ashok Kumar Thakur v. Union of India (2008) 6 SCC 1 (two-Judge Bench) and Jayendra Vishnu Thakur v. State of Maharashtra (2009) 7 SCC 104 (two-Judge Bench). 38. In Ramlila Maidan Incident, In re, (2012) 5 SCC 1 (two-Judge Bench), as submitted by the Union of India, while discussing the Right to Freedom of Speech and Expression Under Article 19, refused to apply the US case of Schneck v. United States 249 US 47 (1919), which propounded the doctrine of clear and present danger, stating that it cannot be imported and applied in India. [Paragraph 8.] Further, holding that, the right to freedom of speech and expression in India is subject to reasonable restrictions and therefore, there is a marked distinction in the language of law, its application and interpretation under the Indian and the US laws. [Paragraph 9 - 11.] 39. Shreya Singhal (supra), this Court speaking through R.F. Nariman, J. highlighted on the differences between the US First Amendment and Freedom of Speech and Expression Under Article 19(1)(a) read with Article 19(2) in the following words: 15. It is significant to notice first the differences between the US First ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Kishor (supra) by Justice B.V. Nagarathna in her erudite concurring opinion while analyzing the freedom of speech and expression Under Article 19. [Paragraph 202(iii) 203.] 41. The distinction as noted by this Court in various decisions between the American Constitution, specifically the First Amendment therein and Article 19 of the Indian Constitution have been noted hereinabove. 42. There have been, however, cases where this Court has, taken into consideration, judgments of the Supreme Court of the United States of America. For instance, the Constitution Bench in Express Newspapers (Pvt.) Limited and Anr. v. Union of India and Ors. (1959) SCR 12 (five-Judge Bench) wherein the constitutionality of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 was in question. Justice N.H. Bhagwati writing for the Court, observed, that since Article 19(1)(a) of our Constitution is based on the First Amendment of the American Constitution, it would be legitimate and proper to refer to the decisions of the Supreme Court of the United States in order to appreciate the true nature, scope and extent of this right . This observation comes in add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference though, needless to say, has to be appreciated in the light of our own constitutional, legislative as well as judicial, historic perspective. They cannot, as was done in the Arup Bhuyan and Indra Das referred to this bench, form the sole basis for the conclusion arrived at. 47. In the aforesaid backdrop, in order to answer the reference, it is essential to appreciate the decisions relied upon in the two decisions, namely, Arup Bhuyan and Indra Das. It is only subsequent to having appreciated these decisions that we may examine effectively, their application to the scenario before us. Background, import and relevance of decisions of Supreme Court of United States relied on in Arup Bhuyan 48. In Arup Bhayan, the learned bench of two judges placed reliance on American decisions in Elfbrandt v. Russel 384 U.S. 17 (1966), Clarence Brandenberg v. State of Ohio 395 U.S. 444 (1969) and United States v. Eugene Frank Robel 389 U.S. 258 (1967) wherein the doctrine of 'guilt by association' has been rejected. The court observed that the abovementioned judgments apply to India too, since the fundamental rights in India are similar to the Bill of Rights in the U.S. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who 'advocate or teach the duty, necessity, or propriety' of violence 'as a means of accomplishing industrial or political reform'; or who publish or circulate or display any book or paper containing such advocacy; or who 'justify' the commission of violent acts 'with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism'; or who 'voluntarily assemble' with a group formed 'to teach or advocate the doctrines of criminal syndicalism.' Neither the indictment nor the trial judge's instructions to the jury in any way refined the statute's bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action. Furthermore, it held that the Constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. 52. In United States v. Eugene Frank Robel 389 U.S. 258 (1967), the constitutionality of Section 5(a)(1)(D) of the Subversive A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... row of the government as speedily as circumstances would permit.' Such a person may be foolish, deluded, or perhaps merely optimistic, but he is not by this statute made a criminal. 56. In Noto v. United States 367 US 290 (1960), the Petitioner was convicted of violating the membership Clause of the Smith Act, which makes a felony the acquisition or holding of membership in any organization which advocates the overthrow of the Government of the United States by force or violence, knowing the purpose thereof. The Supreme Court observed that 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 color to the otherwise ambiguous theoretical material regarding Communist Party teaching. In this backdrop, it was held that the conviction of the Petitioner is being reversed because the Government has failed to produce evidence the Court believes sufficient to prove that the Communist Party presently advocates the overthrow of the Government by force. 57. Reliance was placed on the dissenting opinion of Justice Hugo Black in Communist Party v. Subversive Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violence, and (2) to organize, as the Communist Party of the United States, a society of persons who so advocate and teach, all with the intent of causing the overthrow of the Government by force. While reversing the conviction of the Petitioners, the Supreme Court observed that the district court failed to distinguish between advocacy of forcible overthrow and advocacy of action, by holding that advocacy of violent action at some future time was enough. 61. Reliance was placed on Clarence Brandenberg (supra), as discussed above. 62. In Whitney v. California 274 US 357 (1926), the question which arose was whether the Petitioner, who joined and assisted in the organization of a Communist Labor Party contravening the California Criminal Syndicalism Act, did so with knowledge of its unlawful character and purpose. The Supreme Court of the United States of America, while upholding the constitutionality of the abovementioned act, observed that the freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility. Furthermore, although the rights of free speech and assembly are fundamental, they are not, in their nature, absol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. The Court observed that ..speech is often provocative and challenging. 65. In De Jonge v. Oregon 299 US 353 (1936), the Appellant was charged on the basis that he assisted in the conduct of a meeting which was called under the auspices of the Communist Party, an organization advocating criminal syndicalism. The Supreme Court of the United States of America while considering the Criminal Syndicalism Law of Oregon held that none of our decisions goes to the length of sustaining such a curtailment of the right of free speech and assembly as the Oregon statute demands in its present application. Reliance was placed on the abovementioned decisions in Gitlow (supra) and Whitney (supra). Conclusions 66. The abovementioned decisions are in contradistinction to the scenario in question in India. The American decisions primarily involve indictment on the basis of membership of political organizations or incidents of free speech advocating overthrow of the government. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of the United States of America aptly to say that those judgments are of great persuasive value but it also notes that there is a world of difference between the American and Indian scenario, so far as, subserving public interest is concerned. It is this difference which seemed to have escaped the learned division bench's attention in Arup Bhyan and Indra Das. 69. As recorded by the Constitution (First Amendment) Act, 1951, issues in the functioning and implementation of such rights were being faced right from the start and so the law-making authority, in order to ensure smooth functioning of law. This Court cannot be oblivious to such fact. The vast, varied and scholarly jurisprudence developed by this Court has been in view of these clauses within Article 19. Now, at this juncture, seven decades thence, in my view a stand of whichever court, cannot be allowed to stand if it is in ignorance of constitutional provisions. I may hasten to add that neither I, or this bench, nor any other court would hold otherwise to state that influences or even borrowing from other constitutions has not taken place in the formation of our constitution, but, it is equally and ever so m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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