NEW DELHI: The Supreme Court on Friday declared 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, were not good law.
A three-judge bench led by Justice M R Shah overruled those judgements, after finding that the Union government was not even heard before reading down the provisions under the Unlawful Activities Prevention Act.
The Union government had sought clarification of the judgements saying 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.
Just after the pronouncement, Solicitor General Tushar Mehta called the judgement as historic which would protect the sovereignty of the country.
The larger bench 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, also comprising Justices C T Ravikumar and Sanjay Karol, said.
The court pointed out the Union government was not given an opportunity of hearing before those judgements.
Justice Shah, who read out excerpts of the judgement, said this court should not have read down the provisions when its very 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 added.
With the judgement, the court ruled 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.
Acting on pleas by Arup Bhuyan and Indra Das, a bench of Justices Markandey Katju and Gyan Sudha Mishra 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.
