Manas Dasgupta
NEW DELHI, Mar 24: A three-judge Bench of the Supreme Court on Friday changed the apex court’s stand on the membership of a banned organisation and clarified that a person who “is or continues to be” even a “mere member” of a banned organisation was liable to be found guilty under the draconian Unlawful Activities Prevention Act (UAPA) for acting against the sovereignty and integrity of India.
The judgment has set aside a series of its apex court’s own judgements earlier which had concluded that “mere membership” – unlike “active membership” – of an unlawful association or organisation did not make a person a criminal or a terrorist. The judgment, on Friday, was based on an intra-court reference made in 2014.
The Bench led by Justice M.R. Shah reasoned that an organisation was declared unlawful and banned only after the Centre was “satisfied that it is indulging in unlawful activities against the sovereignty and integrity of India.” The declaration of an organisation or association as unlawful is publicly notified by the Centre under Section 3 of the UAPA. This naturally leads to the conclusion that every member of the organisation would know about the ban, the court reasoned.
And a person choosing to continue as a member despite knowing about the ban was acting against the sovereignty of the nation, the court noted. “It shows a conscious decision to remain a member despite the association being declared unlawful,” Justice Shah observed. Such a person cannot later claim that the law has a chilling effect on his fundamental right of association by imposing criminal liability on him, Justice Shah explained.
The Friday’s judgement go contrary to the opinions expressed by several former Supreme Court judges about the draconian nature of the UAPA and the mental trauma afflicted on the families of activists, journalists and civil society members accused of sedition under the Unlawful Activities (Prevention) Act and languishing in jail for months. The retired judges, Justices Madan Lokur, Deepak Gupta, Aftab Alam and Gopala Gowda were among the former Supreme Court judges who had disfavoured continuing the UAPA in its present form.
The bench headed by Justice Shah said, “To punish a person who is a member of such an unlawful association is in furtherance of the objective of effective prevention of unlawful incidents.” Section 10(a)(i) of the act dealing with the membership of a banned organisation was “framed in the wisdom of the Parliament, did not hurt citizens’ right to form associations or unions, which is part of the fundamental right to free speech. It was a reasonable restriction to protect the nation. Fundamental rights are not absolute,” the court said.
The court referred to Article 19(4), which mandated that the citizens’ right to form unions or associations was subject to the power of the state to make laws to impose “reasonable restrictions” in the interests of the sovereignty and integrity of India or public order or morality.
The three-judge Bench said the earlier judgments in the cases of Arup Bhuyan, Sri Indra Das and Raneef, which had “read down” Section 10(a)(i) to exclude mere membership of an organisation from criminal liability, followed the American law blindly. These judgments had not heeded the restraints stitched into Article 19(4) on the right of citizens to form associations and unions. “Just following American law without noticing the differences between Indian and U.S. laws is not agreeable,” Justice Shah said.
During a seminar on the UAPA a couple of years ago, several retired Supreme Court judges had suggested the courts, society and the government to reconsider the continuation of the UAPA in the present form. Justice Lokur had asked what kind of society was being built where the families and friends of these incarcerated people have to face barbs about their loved ones being branded traitors for expressing their dissent.
“Look at the emotional, psychological impact on his family, him… His children… They will go to school where classmates will say your father is a ‘terrorist’ for something he has not done… We are not looking at the mental aspect,” Justice Lokur said in a virtual conference on ill-effects of UAPA and the law of sedition.
Justice Deepak Gupta asked “Are we human?” and spoke about the case of an activist in Manipur, who said cow urine was not a cure for COVID and was put in jail for sedition. He asked whether we were living in a “Police State.” Justice Gupta said the courts should intervene under Article 142 of the Constitution and lay down guidelines on the use of UAPA adding that it is a proven fact that UAPA can be misused. “The UAPA should not remain in this form,” he had pointing out that while terrorism was a worrying aspect, the law on terrorism should not be nebulous.
Justice Aftab Alam had said by focussing on dissent, the government run the danger of shifting its attention from the actual 3% of terrorism cases. He said many lives had been ruined after years behind bars. Jails were being stuffed with people booked under UAPA, but only a minuscule get convicted. He had also pointed out that peaceful protests and acts of violence were clubbed together and booked under UAPA. No distinction was made between the right to dissent and free speech and the crime of committing violent acts against the state.
Justice Gopala Gowda had pointed at how the state had made it a battle between terrorism and human rights. He said if human rights are protected, terrorism would die a natural death. He said special security legislations like UAPA arm security agencies with unbridled power. It lay down a situation in which the State can commit excesses.