Last week, a three-judge bench of the Supreme Court overruled three judicial precedents to declare that even passive membership of an unlawful association so declared by the government will attract punishment under Section 10(a)(i) of the Unlawful Activities Prevention Act, 1967 (UAPA).
This judgment removes one of the few potential safeguards against the overbroad provisions of the UAPA – an Act notorious for its capacity to be employed by governments in a bid to stifle dissent.
The decision by the three-judge bench is premised on flawed reasoning that results in an undermining of the fundamental rights guaranteed under the Constitution.
The 3 Precedents That The New Judgment Overules
The first overuled case was that of Arup Bhuyan Vs State of Assam (2011), where the Supreme Court held that mere membership of an organisation ought not to attract criminal penalty as the same would amount to establishing guilt by association.
Notably, the Court found 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 resorting to violence.”
The second case was State of Kerala v. Raneef (2011), where the Supreme Court relied on the American case of Elfbrandt v. Russell for the proposition that “a law which applies to membership without the specific intent to further the illegal aims of the organisation infringes unnecessarily on protected freedoms.”
The third was Indra Das Vs State of Assam (2011), which held, among other things, that a literal interpretation of Section 3(5) of the Terrorist and Disruptive Activities Act, 1987 (a provision similar, though not identical, to Section 10(a)(i), UAPA) must be rejected as it would render passive members of a terrorist organisation criminally liable, which would violate the fundamental rights guaranteed under Articles 19 ( Right to freedom of speech and expression, and freedom of association) and 21 (Right to personal liberty) .
Why These Precedents Were Important
The protections offered through these judgments are important in the context of large-scale associations having varied objectives, where it is difficult for members to keep tabs on how all others in that organisation may be conducting themselves.
Further, as Advocate Abhinav Sekhri has pointed out in his blog, membership is not clearly defined under the UAPA. This allows the prosecution almost a free hand in identifying persons as members of unlawful associations, typically through a reliance on confessions or recoveries of a wide range of literature.
These points assume greater significance in the context of the vague definitions of unlawful associations in the UAPA, and the severely limited safeguards the Act provides for associations that have been declared unlawful
The three-judge bench decision rendered last week (Arup Bhuyan Review Petition) states that the previous decisions “erred in straightaway and directly following the US Supreme Court decisions and that too without adverting to the differences and the position of laws in India.”
On the face of it, this characterisation is flawed because it fails to acknowledge how the previous decisions did not simply parrot American case law, but in fact explained the relevance of the legal principles in the Indian context.
Read together, these judgments string together a compelling argument in favour of distinguishing between different kinds of members of an association designated unlawful, and confining criminal liability to a smaller subset.
The Court’s Reasoning Is Incomplete
In any case, given that this was the primary plank on which the court based its decision to overturn the legal position concerning liability for membership, one would expect the court to explain in some detail why “the position of laws in India” justifies the literal interpretation of Section 10(a)(i), UAPA, which catches a wider range of persons in its net.
However, the Court’s reasoning on this point appears incomplete at best and disingenuous at worst.
The Court simply quotes certain judgments that broadly refer to differences between the structure of freedom of speech clauses in India and the United States, but it avoids addressing the specific question concerning the applicability of the principle of guilt by association in India.
Rights In The US Vs Rights In India: The Real Picture
The court then implies that rights in the United States are absolute, and seeks to contrast this with the Indian Constitution, where the rights to freedom of speech and association are qualified under Articles 19(2) and (4) respectively. This assertion is misleading.
The correct position was put forth by Dr Ambedkar in the Constituent Assembly, explaining that rights were not absolute in the United States, but that restrictions were evolved by the US Supreme Court.
Dr Ambedkar explained that the idea behind inserting Articles 19(2) and (4) of the Indian Constitution was simply to expressly recognise the grounds on which valid restrictions could be imposed, and in the process even limit the possible grounds on which state action could restrict rights.
Interestingly the court extracts this para in the submissions of the counsel for the Petitioner but does not refer to it in its own analysis.
Picking & Choosing of Precedents?
The express recognition of grounds on which rights could be restricted was never meant to suggest that the rights guaranteed under Article 19(1) were weaker in India than the United States - the distinction was one “of form and not substance.”
Unfortunately, the Indian Supreme Court has misunderstood this textual insertion as indicating that strong judicial tests like the "clear and present danger test”, which ensure that freedom of speech or association is only restricted when there is an imminent threat of violence, would not apply in India.
In doing so, the Court overlooked cases like:
S. Rangarajan Etc vs P. Jagjivan Ram (1989), which apply a version of the clear and present danger test without expressly stating it, and
Shreya Singhal Vs Union Of India (2015), which noted that both the US Supreme Court and the Indian Supreme Court “have held that a restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary"
Previously too while attempting to balance rights against restrictions under Article 19, we have seen the court relying on precedent that supports a particular conclusion but largely side-stepping the relevant paragraphs of opposing precedent. This appears to be a repetition of that approach.
Chilling Effect On Rights: Why SC Should Have Read Down Section 10 Of UAPA
One of the strongest arguments advanced in favour of reading down Section 10(a)(i) was that a failure to do so would have a significant chilling effect on civil and political rights in India (particularly, under Articles 19 and 21).
In this case, the court appears to misunderstand this argument, rejecting it by declaring that if a person continues to be a member of an association held to be unlawful, “such person cannot be permitted to submit on chilling effect.”
The bench fails to take note of the generally low threshold applied to identify associations as unlawful under the UAPA, and how this low threshold would combine with the ambiguous notion of “membership” under Section 10(a)(i) to severely hinder the effective exercise of the right to form associations in the future.
Beyond associations already declared unlawful, people in India would now increasingly fear joining any association engaged in activities which might even partially involve forms of political dissent because of the fear of criminal prosecution ultimately resulting from the rampant invocation of the UAPA.
Elsewhere, the court supported the State’s contention that the process of declaring an organisation unlawful was ‘robust’ and ‘adversarial’, by simply summarising the relevant provisions of the Act.
The Court then noted that once this procedure provided is followed and a person chooses to remain a member, they would be liable for punishment under Section 10.
Top Court Doing What It Cautioned Against
The Court’s analysis falls far short of answering why criminal liability for passive membership meets the reasonable restriction threshold under Article 19, which requires measures restricting rights to be proportionate.
Instead of carrying out a structured inquiry into the legitimacy, suitability, necessity and the proportionality of the operation of Section 10(a)(i), the Court simply focused on the fact that the provision may be understood to pursue the legitimate aim inserted into the constitutional text by the 16th Constitution Amendment in 1963.
This judgment may be seen as part of a larger stream of cases where the Indian Supreme Court is gradually expanding the notion of restrictions to eclipse the very idea of rights, a shift that the Supreme Court had not long ago cautioned against.
(Jahnavi Sindhu and Vikram Aditya Narayan are Delhi-based advocates. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses them nor is responsible for them.)
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