Member Of a Banned Organisation? That's An Offence Under UAPA, Says New SC Order

This reverses a 2011 verdict according to which mere membership would not be unlawful unless violence happened.

The Supreme Court on Friday, 24 March, held that mere membership of a banned organisation  is to be considered an offence under the Unlawful Activities (Prevention) Act, 1967 (UAPA).

This reverses the top court’s 2011 judgment, according to which mere membership of an unlawful organisation would not incriminate a person unless they:

• resort to violence or

• incite people to violence or 

• perform an act intended to create disorder or disturbance to public peace by resorting to violence

A three-judge bench of Justices MR Shah, CT Ravikumar and Sanjay Karol held:

"Aim of UAPA is to prevent certain unlawful activities and prevent the same...at the cost of repetition, UAPA is to punish the person a member of an unlawful organisation in furtherance of the provisions of the UAPA...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 had reserved its judgment on 9 February after hearing out arguments made by the Union Government, the Assam government and the intervenors in the case.

The 2011 judgment (s): The verdict had its genesis in 2014 when a two-judge bench made a reference to a larger bench after the Union and Assam government challenged the top court's 2011 verdict in three cases: Arup Bhuyan Vs State of Assam, Indra Das Vs State of Assam & State Of Kerala vs Raneef.

Raneef (2011): The Supreme Court held that mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incites people to violence or does an act intended to create disorder or disturbance of public peace by resort to violence.

Bhuyan (2011): The top court repeats its view made in Raneef's case, acquits Bhuyan and reads down Section 3(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) which said:

“Any person who is a member of a terrorists gang or a terrorist organisation, which is involved in terrorist acts, 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.”

 In Indra Das (2011), this view was again reinforced by the 2-judge bench. 

In view of these three judgments, the Union and the Assam government filed review petitions before the top court, contending that the court's views were passed without consulting the government and were detrimental to national security. 

The centre added that the striking down of Section 3(5) of the TADA had been adversely impacting the interpretation of Section 10 of UAPA which criminalises membership of an unlawful association.

According to the government, trial courts and high courts were increasingly relying on the top court’s verdict in the Bhuyan case and in Sri Indra Das versus State of Assam (2011) by emphasising on mens rea. (the mental state of knowledge or intention of wrongdoing that constitutes a crime)

Justices Misra and Sapre, had then said that this "was an important issue" and had referred it for consideration by a larger bench.

(With inputs from Bar and Bench)