# ARUP BHUYAN v. STATE OF ASSAM & ANR

- **Citation:** [2023] 8 S.C.R. 496
- **Court:** Supreme Court of India
- **Decided:** 2023-03-24
- **Case number:** Criminal Appeal No. 889 of 2007
- **Bench:** M. R. Shah, C. T. Ravikumar, Sanjay Karol
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/arup-bhuyan-v-state-of-assam-anr-37817
- **Pages:** 85

## Headnote

Unlawful Activities (Prevention) Act, 1967 - ss.10(a)(i), 3 and
4 - s.10(a)(i) provides that where an association is declared unlawful
by a notification issued u/s.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 2 years and shall also be liable to
fine - Whether "active membership" is required to be proven over
and above the membership of a banned organization under the
UAPA, 1967 - Held: The object and purpose of the enactment of
UAPA is to provide for more effective prevention of certain unlawful
activities - s.10(a)(i) can be said to be absolutely in consonance
with Arts. 19(1), (2) & (4) of the Constitution and can be said to be
in furtherance of the object and purpose for which the UAPA has
been enacted - Before any organization is declared unlawful, a
detailed procedure is required to be followed including wide publicity
and even the right to representation before tribunal - s.10(a)(i)
does not suffer from any vagueness and/or on the ground of being
unreasonable and/or disproportionate - As per s.10(a)(i), a person
cannot be punished merely because he was the member of such
unlawful association - If a person has been a member but does not
continue to be a member after declaration, that does not attract
mischief of s.10 - However, once an association is declared unlawful
of whom the concerned person was the member and he wishes to
continue as a member despite the fact that he is well aware of the
fact that such an association is declared unlawful it shows a
conscious decision on his part and therefore he is liable to be
penalized for such an act of continuation of his membership with
such unlawful association - Therefore, thereafter he cannot be
permitted to make grievance of chilling effect - Doctrines /
Principles - Chilling effect doctrine.
[2023] 8 S.C.R. 496
496
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Constitution of India - Arts.19(1)(c) and 19(4) - Right to
freedom of speech - Value of Foreign decisions - Whether American
decisions concerning freedom of speech could be relied upon while
considering the right to freedom of speech available under the
Constitution of India more particularly Art.19(1)(c) and 19(4) -
Held: Under the Constitution of India, the right to freedom of speech
is subject to reasonable restrictions and is not an absolute right -
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, the Supreme Court in the cases of Arup Bhuyan (two Judge
Bench decision) and Raneef erred in straightway and directly
following the US Supreme Court decisions - Before following the
American decisions, the Indian Courts are required to consider the
difference in the nature of the laws applicable in the respective
countries - Judgment / Order.
Unlawful Activities (Prevention) Act, 1967 - s.10(a)(i) -
Decisions of Supreme Court in the case of Raneef and Arup Bhuyan
(two Judge Bench decision) taking the view on reading down
s.10(a)(i) that mere membership of a banned organization will not
make a person a criminal/guilty unless he resorts to violence or
incites people to violence or creates public disorder by violence or
incitement to violence - Reading down of s.10(a)(i) 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 - If proper - Held: 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
- In absence of any challenge to the constitutional validity of
s.10(a)(i) of the UAPA there was no question of reading down of
the said provision by this Court - Reading down the provision of a
statute cannot be resorted to when the meaning of

## Text

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SUPREME COURT REPORTS
[2023] 8 S.C.R.
ARUP BHUYAN
v.
STATE OF ASSAM & ANR.
(Criminal Appeal No. 889 of 2007)
MARCH 24, 2023
[M. R. SHAH, C. T. RAVIKUMAR AND
SANJAY KAROL, JJ.]
Unlawful Activities (Prevention) Act, 1967 - ss.10(a)(i), 3 and
4 - s.10(a)(i) provides that where an association is declared unlawful
by a notification issued u/s.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 2 years and shall also be liable to
fine - Whether "active membership" is required to be proven over
and above the membership of a banned organization under the
UAPA, 1967 - Held: The object and purpose of the enactment of
UAPA is to provide for more effective prevention of certain unlawful
activities - s.10(a)(i) can be said to be absolutely in consonance
with Arts. 19(1), (2) & (4) of the Constitution and can be said to be
in furtherance of the object and purpose for which the UAPA has
been enacted - Before any organization is declared unlawful, a
detailed procedure is required to be followed including wide publicity
and even the right to representation before tribunal - s.10(a)(i)
does not suffer from any vagueness and/or on the ground of being
unreasonable and/or disproportionate - As per s.10(a)(i), a person
cannot be punished merely because he was the member of such
unlawful association - If a person has been a member but does not
continue to be a member after declaration, that does not attract
mischief of s.10 - However, once an association is declared unlawful
of whom the concerned person was the member and he wishes to
continue as a member despite the fact that he is well aware of the
fact that such an association is declared unlawful it shows a
conscious decision on his part and therefore he is liable to be
penalized for such an act of continuation of his membership with
such unlawful association - Therefore, thereafter he cannot be
permitted to make grievance of chilling effect - Doctrines /
Principles - Chilling effect doctrine.
[2023] 8 S.C.R. 496
496
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497
Constitution of India - Arts.19(1)(c) and 19(4) - Right to
freedom of speech - Value of Foreign decisions - Whether American
decisions concerning freedom of speech could be relied upon while
considering the right to freedom of speech available under the
Constitution of India more particularly Art.19(1)(c) and 19(4) -
Held: Under the Constitution of India, the right to freedom of speech
is subject to reasonable restrictions and is not an absolute right -
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, the Supreme Court in the cases of Arup Bhuyan (two Judge
Bench decision) and Raneef erred in straightway and directly
following the US Supreme Court decisions - Before following the
American decisions, the Indian Courts are required to consider the
difference in the nature of the laws applicable in the respective
countries - Judgment / Order.
Unlawful Activities (Prevention) Act, 1967 - s.10(a)(i) -
Decisions of Supreme Court in the case of Raneef and Arup Bhuyan
(two Judge Bench decision) taking the view on reading down
s.10(a)(i) that mere membership of a banned organization will not
make a person a criminal/guilty unless he resorts to violence or
incites people to violence or creates public disorder by violence or
incitement to violence - Reading down of s.10(a)(i) 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 - If proper - Held: 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
- In absence of any challenge to the constitutional validity of
s.10(a)(i) of the UAPA there was no question of reading down of
the said provision by this Court - 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 - The
Court ought not to have read down s.10(a)(i) of the UAPA, 1967
when neither its' constitutional validity was under challenge nor
the Union of India was heard.
Interpretation of Statutes - Doctrines/Principles - "Reading
down Doctrine" - Discussed.
ARUP BHUYAN v. STATE OF ASSAM & ANR.
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SUPREME COURT REPORTS
[2023] 8 S.C.R.
Answering the Reference, the Court
HELD:
per M.R. SHAH, J. (for himself, C.T. Ravikumar, J. and
Sanjay Karol, J.)
1. 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)(i) of the UAPA,
1967, the Union of India would have made submissions in favour
of Section 10(a)(i) of the UAPA including the object and purpose
for enactment of such a provision and even the object and purpose
of UAPA. Even otherwise in absence of any challenge to the
constitutional validity of Section 10(a)(i) of the UAPA there was
no question of reading down of 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. Also, 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 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. [Paras 11.1, 11.2, 11.3, 11.4 and
11.5][535-F-H; 536-A-E, H]
2. 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
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Laws and the Indian laws, this Court in the case of Arup Bhuyan
(two Judge Bench decision) and Raneef 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. In the aforesaid two decisions without noticing the
differences of the US Supreme Court this Court has just followed
the American decisions, which cannot be accepted. This Court
ought to have considered the differences in the American laws
and the Indian laws more particularly the provisions in the Indian
Constitution. By the aforesaid this Court does not say for a
moment that in a given case the US Supreme Court decisions
may not be taken into consideration and/or may not be guidance.
Before following the American decisions, the Indian Courts are
required to consider the difference in the nature of the laws
applicable in the respective countries. [Paras 13 and 13.1][542G-H; 453-A-C]
3.1 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. The notification issued by the Central
Government declaring a particular association unlawful, 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
association then he has to face the consequences and is subjected
to the penal provisions as provided under Section 10 more
particularly Section 10(a)(i) of the UAPA, 1967. [Para 14.5][554E-F]
3.2. A person who is a member of such an unlawful
association is as such aware of the declaration of such association
as unlawful and despite the same if he still continues to be the
member of such unlawful association which is indulging into the
unlawful activities and acting against the sovereignty and integrity
of India, his intention is very clear that he still wants to associate
with such an association which is indulging into 'unlawful activities'
and acting against the interests of sovereignty and integrity of
India. The language used in the Section 10(1)(i) and the procedure
to be followed under Sections 3 & 4 of the Act, before any
association is declared as unlawful are very clear. Therefore,
ARUP BHUYAN v. STATE OF ASSAM & ANR.
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SUPREME COURT REPORTS
[2023] 8 S.C.R.
Section 10(a)(i) does not suffer from any vagueness and/or on
the ground unreasonable and/or disproportionate. [Para 16.1][556E-G]
3.3 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 subsection 3, that the latter part of
that Section applies. The language of Section 10(a)(i) is also very
cautiously worded "who is and continues to be a member of such
association". Therefore, on true interpretation, if a person has
been a member but does not continue to be a member after
declaration, that does not attract mischief of Section 10. The
intention seems to be that not only was he a member on the day
when the association is declared unlawful but he continues to be
a member. The intention is very clear that not only on the given
date but even after that you continue to be a member of that
association which is declared as unlawful association due to
unlawful activities which is found to be against the interests of
sovereignty and integrity of India. Therefore, 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. [Para
17.1][557-B-F]
4. The view taken by this Court in the cases of Raneef,
Arup Bhuyan (two Judge Bench decision), and Sri Indra Das
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
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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. 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. [Para 18][557G-H; 558-A-C]
State of Kerala vs. Raneef (2011) 1 SCC 784 : [2011] 1
SCR 590; Arup Bhuyan vs. Union of India (2011) 3
SCC 377 : [2011] 2 SCR 506 and Indra Das v. State of
Assam (2011) 3 SCC 380 : [2011] 4 SCR 289 - held
not good law.
Babulal Parate vs. State of Maharashtra [1961] 3 SCR
423; Madhu Limaye vs. Sub-Divisional Magistrate
(1970) 3 SCC 746 : [1971] 2 SCR 711; Supdt., Central
Prison vs. Dr. Ram Manohar Lohia [1960] 2 SCR 821;
Joseph Kuruvilla Vellukunnel vs. Reserve Bank of India
[1962] Supp 3 SCR 632; Ashoka Kumar Thakur vs.
Union of India (2008) 6 SCC 1 : [2008] 4 SCR 1;
Kesavananda Bharti vs. State of Kerala (1973) 4 SCC
225 : [1973] Suppl. SCR 1; State of Bihar vs. Union of
India (1970) 1 SCC 67 : [1970] 2 SCR 522 and
Subramanian Swamy and others vs. Raju through
Member, Juvenile Justice Board and Anr. (2014) 8 SCC
390 : [2014] 9 SCR 283 - relied on.
Sanjeev Coke Manufacturing Company v. M/s Bharat
Cooking Coal Limited (1983) 1 SCC 147 : [1983] 1
SCR 1000; Kaushal Kishor v. State of Uttar Pradesh
and Others 2023 SCC OnLine SC 6; Ramlila Maidan
Incident, In re, (2012) 5 SCC 1 : [2012] 4 SCR 971;
M.C. Mehta v. Union of India (1987) 1 SCC 395 : [1987]
1 SCR 819; Pathumma v. State of Kerala (1978) 2 SCC
ARUP BHUYAN v. STATE OF ASSAM & ANR.
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SUPREME COURT REPORTS
[2023] 8 S.C.R.
1 : [1978] 2 SCR 537; People's Union for Civil Liberties
v. Union of India (2004) 9 SCC 580 : [2003] 6 Suppl.
SCR 860; State of Gujarat v. Shyamlal Mohanlal Choksi
[1965] 2 SCR 457; Shreya Singhal v. Union of India
(2015) 5 SCC 1 : [2015] 5 SCR 963; Kedar Nath v.
State of Bihar, AIR 1962 SC 955 : [1962] Suppl. SCR
769; State of Bihar v. Shailabala Devi AIR 1952 SC
329 : [1952] SCR 654; S. Rangarajan v. P. Jagjivan
Ram and others (1989) 2 SCC 574 : [1989] 2 SCR
204; O.K. Ghosh v. E.X. Joseph, AIR 1963 812 : [1963]
Suppl. SCR 789; Balwant Singh v. State of Punjab (1995)
3 SCC 214 : [1995] 2 SCR 411; Kartar Singh v. State
of Punjab (1994) 3 SCC 569 : [1994] 2 SCR 375; T.N.
Education Deptt. Ministerial and General Subordinate
Services Assn. vs. State of Tamil Nadu (1980) 3 SCC
97 : [1980] 1 SCR 1026; Mafatlal Industrial Ltd. vs.
Union of India (1997) 5 SCC 536 : [1996] 10 Suppl.
SCR 585 and Thawaha Fasal vs. Union of India (2021)
SCC Online SC 1000 - referred to.
Niharendu Dutt Majumdar v. The King Emperor 1942
F.C.R. 38 - referred to.
Schenck vs. United States 249 U.S. 47 (1919);
Brandenburg vs. Ohio 395 U.S. 444 (1969); Scales vs.
United States [6 L Ed 2d 782]; Elfbrandt vs. Russell [16
L Ed 2d 321]; Joint Anti-Fascist Refugee Committee
vs. McGrath [95 L Ed 817] - referred to.
per SANJAY KAROL, J. (Separately concurring as well)
1. The contradistinction between the rights created by the
First Amendment of the American Constitution and Article 19 of
the Indian Constitution is the power given to the State to make
laws reasonably restricting such freedoms in India. Conversely,
in the United States of America, restrictions have been imposed
by the Judiciary in instances, as relied upon in Arup Bhuyan and
Indra Das, however no such explicit power is available with the
Legislature. [Para 15][567-C]
2. In Arup Bhayan, the Court placed reliance on American
decisions in Elfbrandt v. Russel, Clarence Brandenberg v. State of
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Ohio and United States v. Eugene Frank Robel 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. Constitution. 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. However, under Indian
law, it is not membership of political organizations etc. or free
speech or criticism of the government that is sought to be banned,
it is only those organizations which aim to compromise the
sovereignty and integrity of India and have been notified to be
such and unlawful, whose membership is prohibited. This is in
furtherance of the objective of the UAPA, which 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. The distinction,
therefore, is clear. [Paras 30 and 48][572-F; 579-A-C]
3. There is "a world of difference" between the American
and Indian scenario, so far as, sub serving public interest is
concerned. It is this difference which seemed to have escaped
the division bench's attention in Arup Bhyan and Indra Das.
Therefore, placing reliance on decisions rendered in a distinct
scenario as well as a demonstrably different constitutional position,
that too almost singularly, especially in cases which involve
considerations of national security and sovereignty, was not
justified. [Paras 50 and 52][580-C, F]
Arup Bhuyan v. State of Assam (2011) 3 SCC 377 :
[2011] 2 SCR 506 and Sri Indra Das v. State of Assam
(2011) 3 SCC 380 : [2011] 4 SCR 289 - held not good
law.
Babulal Parate v. State of Maharashtra [1961] 3 SCR
423 and Madhu Limaye v. Sub-Divisional Magistrate
(1970) 3 SCC 746 : [1971] 2 SCR 711 - followed.
ARUP BHUYAN v. STATE OF ASSAM & ANR.
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SUPREME COURT REPORTS
[2023] 8 S.C.R.
Union of India v. Naveen Jindal and Another (2004) 2
SCC 510 : [2004] 1 SCR 1038; Hyderabad Asbestos
Cement Products and Anr. v. Union of India and Ors.
(2000) 1 SCC 426 : [1999] 5 Suppl. SCR 155; Shreya
Singhal v. Union of India (2015) 5 SCC 1 : [2015] 5
SCR 963; Indian Express Newspapers (Bombay) Pvt.
Ltd. and Others v. Union of India and Others (1985) 1
SCC 641 : [1985] 2 SCR 287; Superintendent, Central
Prison v. Dr. Ram Manohar Lohia [1960] 2 SCR 821;
Pathumma v. State of Kerala (1978) 2 SCC 1 : [1978] 2
SCR 537; M.C. Mehta v. Union of India (1987) 1 SCC
395 : [1987] 1 SCR 819; Ashok Kumar Thakur v. Union
of India (2008) 6 SCC 1 : [2008] 4 SCR 1; Jayendra
Vishnu Thakur v. State of Maharashtra (2009) 7 SCC
104 : [2009] 8 SCR 591 and Ramlila Maidan Incident,
In re, (2012) 5 SCC 1 : [2012] 4 SCR 971 - relied on.
Kaushal Kishor v. State of U.P. & Ors. 2023 SCC Online
6; Arup Bhuyan v. State of Assam (2015) 12 SCC 702;
Dharam Dutt v. Union of India (2004) 1 SCC 712 :
[2003] 6 Suppl. SCR 151; State of Madras v. VG Row
[1952] SCR 597; State of Bihar v. Shailabala Devi AIR
1952 SC 329 : [1952] SCR 654; O.K. Ghosh and Anr.
v. E.X. Joseph AIR 1963 SC 812 : [1963] Suppl. SCR
789; A.P. Dairy Development Corpn. Federation v. B.
Narasimha Reddy (2011) 9 SCC 286 : [2011] 14 SCR 1;
Raghubar Dayal Jai Prakash v. Union of India AIR
1962 SC 263 : [1962] 3 SCR 547; Jamaat-E-Islami
Hind v. Union of India (1995) 1 SCC 428 : [1994] 6
Suppl. SCR 316; Express Newspapers (Pvt.) Limited and
Another v. Union of India and Others [1959] SCR 12;
State of Travancore - Cochin and Others v. Bombay
Co. Ltd. [1952] SCR 1112; State of Bombay v. R.M.D.
Chamarbaugwala
[1957]
SCR 874;
Reliance
Petrochemicals Ltd. v. Proprietors of Indian Express
Newspapers, Bombay Pvt. Ltd. and Ors. (1988) 4 SCC
592 : [1988] 3 Suppl. SCR 212; R.K. Garg v. Union of
India (1981) 4 SCC 675 : [1982] 1 SCR 947; Maneka
Gandhi v. Union of India (1978) 1 SCC 248 : [1978] 2
SCR 621 and State of Kerela v. Raneef (2011) 1 SCC
784 : [2011] 1 SCR 590 - referred to.
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505
Morey v. Doud 354 US 457 (1957); Secy. of Agriculture
v. Central Roig Refining Co. 338 US 604 (1949); Ghani
v. Jones (1970) 1 QB 693; Elfbrandt v. Russel 384 U.S.
17 (1966); Clarence Brandenberg v. State of Ohio 395
U.S. 444 (1969);United States v. Eugene Frank Robel
389 U.S. 258 (1967); Clarence Brandenberg v. State of
Ohio 395 U.S. 444 (1969); United States v. Eugene
Frank Robel 389 U.S. 258 (1967); Scales v. United
States 367 US 203 (1960); Noto v. United States 367
US 290 (1960);Communist Party v. Subversive Activities
Control Board 367 US 1 (1961); Joint Anti-Fascist
Refugee Committee v. McGrath 341 US 123, 174 (1951);
Keyishian v. Board of Regents of New York 385 US 589
1966; In Yates v. U.S. 354 US 298 (1957); Whitney v.
California 274 US 357 (1926); Gitlow v. New York 268
US 652 (1925); Terminiello v. Chicago 337 US 1
(1948) and De Jonge v. Oregon 299 US 353 (1936)-
referred to.
Case Law Reference
In the judgment of M.R. SHAH, J.
[2011] 1 SCR 590
held not good law
Para 1
[2011] 2 SCR 506
held not good law
Para 1
[1961] 3 SCR 423
relied on
Para 4
[1971] 2 SCR 711
relied on
Para 4
[1960] 2 SCR 821
relied on
Para 4.1
[2012] 4 SCR 971
referred to
Para 4.1
[1962] Supp 3 SCR 632
relied on
Para 4.2
[1987]1 SCR 819
referred to
Para 4.2
[2008] 4 SCR 1
relied on
Para 4.2
[1978] 2 SCR 537
referred to
Para 4.2
[2011] 4 SCR 289
held not good law
Para 5
[2003] 6 Suppl. SCR 860
referred to
Para 7.2
[1965] 2 SCR 457
referred to
Para 7.3
ARUP BHUYAN v. STATE OF ASSAM & ANR.
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SUPREME COURT REPORTS
[2023] 8 S.C.R.
[1983] 1 SCR 1000
referred to
Para 7.4
[2015] 5 SCR 963
referred to
Para 7.5
[1962] Suppl. SCR 769
referred to
Para 7.8
[1952] SCR 654
referred to
Para 7.9
[1989] 2 SCR 204
referred to
Para 7.10
[1963] 1 Suppl. SCR 789
referred to
Para 7.11
[1995] 2 SCR 411
referred to
Para 7.12
[1994] 2 SCR 375
referred to
Para 7.13
[1973] Suppl. SCR 1
referred to
Para 9.3
[1980] 1 SCR 1026
referred to
Para 9.3
[1996] 10 Suppl. SCR 585
referred to
Para 9.3
[2014] 9 SCR 283
relied on
Para 11.4
[1970] 2 SCR 522
relied on
Para 12.7
[1973] Suppl. SCR 1
relied on
Para 12.9
In the judgment of SANJAY KAROL, J.
(2015) 12 SCC 702
referred to
Para 1
[2011] 2 SCR 506
held not good law
Para 2
[2011] 4 SCR 289
held not good law
Para 2
[2003] 6 Suppl. SCR 151
referred to
Para 6
[1952] SCR 597
referred to
Para 7
[1952] SCR 654
referred to
Para 8
[1963] Suppl. SCR 789
referred to
Para 8
[2015] 5 SCR 963
relied on
Para 8
 [2011] 14 SCR 1
referred to
Para 10
[1962] 3 SCR 547
referred to
Para 11
[1994] 6 Suppl. SCR 316
referred to
Para 13
[1961] 3 SCR 423
followed
Para 16
[1971] 2 SCR 711
followed
Para 17
[1985] 2 SCR 287
relied on
Para 18
[2004] 1 SCR 1038
relied on
Para 19
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B
C
D
E
F
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H
507
[1960] 2 SCR 821
relied on
Para 19
[1978] 2 SCR 537
relied on
Para 19
[1987] 1 SCR 819
relied on
Para 19
[2008] 4 SCR 1
relied on
Para 19
(2009) 8 SCR 591
relied on
Para 19
[2012] 4 SCR 971
relied on
Para 20
[1959] SCR 12
referred to
Para 24
[1952] SCR 1112
 referred to
Para 24
[1957] SCR 874
referred to
Para 24
[1988] 3 Suppl. SCR 212
referred to
Para 25
[1982] 1 SCR 947
referred to
Para 26
[1978] 2 SCR 621
referred to
Para 27
[2011] 1 SCR 590
referred to
Para 31
[1999] 5 Suppl. SCR 155
relied on
Para 49
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
889 of 2007.
From the Judgment and Order dated 28.03.2007 of the Designated
Court, Assam at Guwahati in TADA Sessions Case No. 13 of 1991.
With
Review Petition (Criminal) No. 417 of 2011 in Criminal Appeal
No. 1383 of 2007, Review Petition (Criminal) No. 426 of 2011 in Criminal
Appeal No. 889 of 2007, Special Leave Petition (Crl.) Nos. 5971, 5964
of 2019, Criminal Appeal No. 1383 of 2007, SLP (Crl.)... CRLMP
No.16637 of 2014, and Special Leave Petition Nos. 5643, 6270 of 2019.
Tushar Mehta, Solicitor General, K M Nataraj, A.S.G., Vinay
Navare, Sanjay Parikh, R. Basant, Sr. Advs., Ms. Ranjana Narayan,
Kanu Agrawal, Rajan Kumar Chourasia, Sandeep Kumar Mahapatra,
Navanjay Mahapatra, Ashok Panigarhi, Arvind Kumar Sharma, Gurmeet
Singh Makker, Shuvodeep Roy, Deepayan Dutta, Sai Shashank, Jawahar
Raja, Pukhrambam Ramesh Kumar, Karun Sharma, Archit Krishana,
Ms. Varsha Sharma, Ms. Moksha Sharma, Haris Beeran, Mushtaq Salim,
Azhr Assees, Radha Shyam Jena, Azim H. Laskar, Bikas Kar Gupta,
Ms. Debarati Sadhu, Ms. Debanjana Ray Choudhury, Debojyoti
ARUP BHUYAN v. STATE OF ASSAM & ANR.
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Mukhopadhyay, Abhijit Sengupta, Mohamad Shareef K.P., P. A. Noor
Mohamed, Advs. for the appearing parties.
The Judgments of the Court were delivered by
M. R. SHAH, J.
1. Present reference to the larger Bench is made against the
judgment and order in the case of Arup Bhuyan vs. Union of India,
(2011) 3 SCC 377 as well as State of Kerala vs. Raneef, (2011) 1
SCC 784, pursuant to the order passed by this Court dated 26.08.2014,
reported as (2015) 12 SCC 702.
Background of the Reference
2. That the Division Bench of this Court in the case of Raneef
(supra) whilst relying upon numerous American decisions concerning
freedom of speech and position on membership of banned organizations
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. In
paragraphs 10 to 14 this Court in the case of Raneef (supra) observed
and held as under:
"10.) As regards the allegation that the respondent belongs to the
PFI, it is true that it has been held in Redaul Husain Khan vs.
National Investigation Agency 2010 (1) SCC 521 that merely
because an organization has not been declared as an `unlawful
association' it cannot be said that the said organization could not
have indulged in terrorist activities. However, in our opinion the
said decision is distinguishable as in that case the accused was
sending money to an extremist organization for purchasing arms
and ammunition. That is not the allegation in the present case.
The decision in State of Maharashtra vs. 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.
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11. In Scales vs. 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 the defendant specifically intends to accomplish the aims of
the organization by resort to violence."
12. In Elfbrandt vs. Russell 384 US 17-19 (1966) Justice Douglas
of the U.S. Supreme Court speaking for the majority observed :
"Those who join an organization but do not share its unlawful
purpose and who do not participate in its unlawful activities surely
pose no threat, either as citizens or as public employees. A law
which applies to membership without the `specific intent' to further
the illegal aims of the organization infringes unnecessarily on
protected freedoms. It rests on the doctrine of `guilt by association'
which has no place here."
13. In Joint Anti-Fascist Refugee Committee vs. McGrath 341
US 123 at 174 (1951) Mr. Justice Douglas of the U.S. Supreme
Court observed :
"In days of great tension when feelings run high, it is a temptation
to take shortcuts by borrowing from the totalitarian techniques of
our opponents. But when we do, we set in motion a subversive
influence of our own design that destroys us from within."
14. We respectfully agree with the above decisions of the U.S.
Supreme Court, and are of the opinion that they apply in our country
too. We are living in a democracy, and the above observations
apply to all democracies."
2.1 That thereafter the Division Bench of this Court in another
decision in the case of Arup Bhuyan (supra) whist relying upon Raneef
(supra) and relying upon the same American doctrines which were earlier
considered in the case of Raneef (supra) has observed in paragraph 12
as under:
ARUP BHUYAN v. STATE OF ASSAM & ANR.
[M. R. SHAH, J.]
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"We respectfully agree with the above decisions, and are of
the opinion that they apply to India too, as our fundamental rights
are similar to the Bill of Rights in the U.S. Constitution. In our
opinion, Section 3(5) cannot be read literally otherwise it will violate
Articles 19 and 21 of the Constitution. It has to be read in the light
of our observations made above. Hence, 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. Hence, the conviction
of the appellant under Section 3(5) of the TADA is also not
sustainable."
2.2 At this stage it is required to be noted that at the time when
Raneef (supra) and Arup Bhuyan (Supra) were decided neither Section
10(i) 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 Kumar, learned Solicitor General appearing
for the Union of India, has submitted that in the case of Arup
Bhuyan vs. State of Assam, 2011 (3) SCC 377, this Court has
read down the provision to the detriment of the interest of the
Union of India when it was not a party before it. He has also
invited our attention to the decision in Sri Indra Das vs. State of
Assam 2011 (3) SCC 380. In Arup Bhuyan's case as well as in
the case Sri Indra Das, the two-Judge Bench has referred to many
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authorities of Supreme Court of United States of America and
thereafter quoted a passage from Kedar Nath vs. State of Bihar
AIR 1962 SC 955 and relied on State of Kerala vs. Raneef (2011)
1 SCC 784 and eventually opined thus:
"27. We may also consider the legal position, as it should
emerge, assuming that the main s. 124A is capable of being
construed in the literal sense in which the Judicial Committee of
the Privy Council has construed it in the cases referred to above.
On that assumption, it is not open to this Court to construe the
section is such a way as to avoid the alleged unconstitutionality by
limiting the application of the section in the way in which the Federal
Court intended to apply it ? In our opinion, there are decisions of
this Court which amply justify our taking that view of the legal
position. This Court, in the case of R.M.D. Chamarbaugwalla v.
The Union of India (1) has examined in detail the several decisions
of this Court, as also of the Courts in America and Australia. After
examining those decisions, this Court came to the conclusion that
if the impugned provisions of a law come within the constitutional
powers of the legislature by adopting one view of the words of the
impugned section or Act, the Court will take that view of the matter
and limit its application accordingly, in preference to the view which
would make it unconstitutional on another view of the interpretation
of the words in question.
In that case, the Court had to choose between a definition
of the expression 'Prize Competitions" as limited to those
competitions which were of a gambling character and those which
were not. The Court chose the former interpretation which made
the rest of the provisions of the Act, Prize Competitions Act (XLII
of 1955), with particular reference to ss. 4 and 5 of the Act and
Rules 11 and 12 framed thereunder, valid. The Court held that the
penalty 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
ARUP BHUYAN v. STATE OF ASSAM & ANR.
[M. R. SHAH, J.]
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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 subsection (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 destruction
and commits any act resulting in loss of human life or grievous
injury to any person or causes significant damage to any property,
(i) and if such act has resulted in the death of any person, shall be
punishable with death or imprisonment for life, and shall also be
liable to fine;
(ii) in any other case, shall be punishable with 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.]"
6. The aforesaid provision was inserted by way of
amendment with effect from 21/09/2004. Relying upon the said
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provision, it is contended by him that if the view expressed in Arup
Bhuyan (supra) and Sri Indra Das (supra) is allowed to remain in
the field various laws in other enactments would be affected. It is
further urged by him that the Court has erroneously referred to its
earlier judgment in Raneef's case wherein the basic fact was
different, namely, the Social Democratic Party of India (SDPI)
was not a banned organization. The learned Solicitor General would
impress upon us that once an organization is banned, Section 10 of
the 1967 Act would come into play. Learned Solicitor General has
also drawn our attention to certain paragraphs in Raneef's case
wherein it has been opined even assuming the PFI is an illegal
organization, yet it remains to be considered whether all the
members of the Organization can be categorically held to be guilty.
It is put forth by him that the said judgment did not affect the
provisions in other enactments inasmuch as the PFI was not a
banned Organization, but after the decisions in Arup Bhuyan
(supra) and Sri Indra Das (supra), the Trial Courts and the High
Courts are 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.
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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 the
authorities which have been placed reliance upon in both the
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[M. R. SHAH, J.]
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judgments by the two-Judge Bench are founded on Bill of Rights
which is different from Article 19 of the Constitution of India.
He has referred to Article 19(1)(c) and 19(4) of the
Constitution.
Article 19(1)(c) reads as follows.
"19(1)(c) to form associations or unions;"
The said article is further restricted by Article 19(4) which
is as follows:
(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 4 [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."
Relying upon the same it is highlighted by the learned
Solicitor General that the Court has not kept this aspect in view
while placing heavy reliance on the foreign authorities which are
fundamentally not applicable to the interpretative process of the
provisions which have been enacted in consonance with the
provisions of the Constitution of India.
Regard being had to the important issue raised by the learned
Solicitor General and Mr. Jaideep Gupta, learned senior counsel
for the State of Assam, we think it appropriate that the matter
should be considered by a larger Bench.