In a significant order, the Supreme Court said mere membership of an organisation declared unlawful by the Centre is a crime under Unlawful Activities (Prevention) Act, 1967 establishing the provision which persecutes one for guilt by association.

The verdict by Justice MR Shah-led bench is a reversal of the top court's 12-year-old judgment which held that mere membership was insufficient grounds for an offence. The aim of UAPA is to prevent certain unlawful activities and prevent the same... UAPA is to punish the person who is a member of an unlawful organization…Thus, Section 10(a)(i) is absolutely in consonance with Articles 19(1)(a) and 19(2) of the Constitution and thus in consonance with the objectives of the UAPA,” the Bench held.

When an association is declared unlawful, a person who is and continues to be a member of that association is liable to punishment, the Supreme Court said. 

All high court decisions taking a contrary view are overruled, the bench led by Justice MR Shah said while upholding the constitutional validity of Section 10(a)(i) of the UAPA.

The top court in 2011 had held, “Mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence”. Arup Bhuyan and Indra Das had been acquitted on these grounds.

Solicitor General Tushar Mehta called today's judgement "historic", however, critics argue that the verdict in 2011 Arup Bhuyan case was one of the only “checks against executive abuse of the UAPA”. Today, the SC has removed that check,” advocate Gautam Bhatia tweeted.

The UAPA was introduced to provide an effective way to safeguard India from unlawful activities or terror acts. Now, UAPA is increasingly being used as a tool to suppress free speech and off-late critics have called the anti-terror legislation "oppressive", "overbroad and vague", "draconian and not based on logic".

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2011 Arup Bhuyan verdict “bad in law”

The Justice Shah-led bench said the 2011 judgments delivered by Justices Markandey Katju and Gyan Sudha Mishra were “bad in law”. The 2011 verdicts reading down the law were passed in bail applications where the constitutionality of the section was not challenged. The court said the Centre should have been heard and given the chance to present its views.

“Enormous harm would be caused to State if they are not heard...and Centre should have made submissions to justify 10(1)(i)…its objects and purposes...in view of the above, Section 10(a)(i) should not have read down by this Court, especially when the constitutional validity of the Section was not in question,” the court said.

The court said reading down a provision was not permissible if the language was plain and clear. “In view of the above, Section 10(a)(i) should not have read down by this court especially when the constitutional validity of the section was not in question,” Justice Shah said. “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 bench added.

The top court today further pointed out that several judgments have upheld the constitutional validity of UAPA and Terrorist and Disruptive Activities (Prevention) Act (TADA).

Cannot rely on US court decisions for Indian context

Justice Shah’s bench said 12 years ago the top court made a mistake by relying on judgments passed by the Supreme Court of the United States of America (SCOTUS) and the American Bill of Rights because unlike in the US, in India the right to free speech and association comes is subject to reasonable restrictions.

“We do not say for a moment that US Supreme Court Decisions may not guide us. But Indian courts are required to consider the difference in nature of laws between two countries, the bench said.

“Section 10(a)(i) [UAPA] is absolutely in consonance with 19(1)(a) and 19(2) of the Constitution (fundamental right to free speech) and thus in consonance with the objectives of the UAPA,” Justice Shah said while reading out the operative part of the judgment.

“This Court in Arup Bhuyan and Raneef referred to US cases without relying on Indian case and differences...Thus, this Court followed US decisions which we are not agreeable with, the bench added. “We do not say for a moment that the United States Supreme Court decisions may not guide us...But Indian courts are required to consider differences in the nature of laws between two countries,” it said.