Mere membership of unlawful organisation a UAPA offence: SC clarifies

The Supreme Court on Friday held as bad in law its 2011 verdicts that ruled that mere membership of a banned organisation will not make a person criminal unless he resorts to violence or incites people to violence.

A bench of Justices MR Shah, CT Ravikumar and Sanjay Karol, while deciding a reference made by a two-judge bench, held that mere membership of banned organisation will make a person criminal and liable to be prosecuted under provisions of UAPA.

The bench said the subsequent decisions passed by high courts pursuant to its two-judge verdicts in 2011 on membership of banned outfits are bad in law and overruled.

While allowing petitions of the Centre and the Assam government seeking review of the apex court's 2011 verdicts on membership of banned outfits, the court said the Union government was required to be heard when a provision enacted by Parliament is read down.

The top court said the 2011 verdicts were passed while relying on American court decisions which cannot be done without considering the condition prevailing in India.

"In India right to freedom of speech and expressions is not absolute and is subject to reasonable restriction. However, decisions of the American court can be guiding light", the bench said.

On February 9, the top court while reserving its verdict on batch of review pleas had noted that the Union of India was not heard by its two-judge benches when the 2011 verdict was passed reading down section 3 (5) of Terrorist and Disruptive Activities (Prevention) Act, 1987 (now repealed).

The top court on February 3, 2011, had acquitted suspected ULFA member Arup Bhuyan, who was held guilty by a TADA court on the basis of his alleged confessional statement before the Superintendent of Police, and said 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.

Similar views were taken by the apex court in two other verdicts of 2011 in Indra Das versus State of Assam and state of Kerala versus Raneef, where the bench relied upon the three US Supreme Court decisions which have rejected the doctrine of 'guilt by association'.