Supreme Court overrules 2011 verdict on 'criminality by association'

The Supreme Court on Friday overruled its 2011 judgements which had held that mere membership of a banned organisation will not make a person a criminal until he indulged in violence or incited it.

A three-judge bench led by Justice M R Shah declared those judgements were not good law on several points including that the Union government was not even heard before reading down the provisions under the Unlawful Activities Prevention Act.

Solicitor General Tushar Mehta termed the judgement as historic which would protect the sovereignty of the country.

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The top court restored the criminality by association by upholding the validity of Section 10(a)(i) of the UAPA which made membership of an unlawful association an offence.

"Section 10(a)(i) is absolutely in consonance with 19(1)(a) and 19(2) of the Constitution and thus in consonance with the objectives of the UAPA," the bench said.

The court noted the Union government was not given an opportunity to put forth its arguments when those judgements were delivered.

"This court should not have read down the provisions when its validity was not questioned. The US Supreme Court judgements on freedom of speech could not have been used for the purpose. Here freedom of speech is subject to reasonable restrictions. This court ought to have considered the difference between the two jurisdictions," the bench said.

The bench, also comprising Justices C T Ravikumar and Sanjay Karol, held that when an association is declared unlawful, a person who is and continued to be member of that association is liable to punishment.

All the decisions of High Courts taking a contrary view are overruled, the bench added.

Dealing with plea by appellants Arup Bhuyan and Indra Das, a bench of Justices Markandey Katju and Gyan Sudha Mishra, both since retired, had then 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."

The bench had then acquitted Bhuyan and Das of the offences under the Terrorist and Disruptive Activities (Prevention) Act for allegedly being members of banned United Liberation Front of Asaam (ULFA).

The court had then held that provisions of the TADA or Unlawful Activities (Prevention) Act, making mere membership of a banned organisation as punishable offence must be read down otherwise it would become unconstitutional for violating of Articles 19 and 21 of the Constitution.

In its plea, the Union government sought clarification, contending “There cannot possibly be a fundamental right to be part of an organisation that stands accused of violent acts as those cannot fall within the scope of Article 19 or Article 21 of the Constitution."