ARUP BHUYAN versus STATE OF ASSAM & ANR.

Citation: [2023] 8 S.C.R. 496 · Decided: 24-03-2023 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Reference answered

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 8 S.C.R.
ARUP BHUYAN
v.
STATE OF ASSAM & ANR.
(Criminal Appeal No. 889 of 2007)
MARCH 24, 2023
[M. R. SHAH, C. T. RAVIKUMAR AND
SANJAY KAROL, JJ.]
Unlawful Activities (Prevention) Act, 1967 – ss.10(a)(i), 3 and
4 – s.10(a)(i) provides that where an association is declared unlawful
by a notification issued u/s.3 which has become effective under
sub-section 3 of that Section, a person who is and continues to be a
member of such association shall be punishable with imprisonment
for a term which may extend to 2 years and shall also be liable to
fine – Whether “active membership” is required to be proven over
and above the membership of a banned organization under the
UAPA, 1967 – Held: The object and purpose of the enactment of
UAPA is to provide for more effective prevention of certain unlawful
activities – s.10(a)(i) can be said to be absolutely in consonance
with Arts. 19(1), (2) & (4) of the Constitution and can be said to be
in furtherance of the object and purpose for which the UAPA has
been enacted – Before any organization is declared unlawful, a
detailed procedure is required to be followed including wide publicity
and even the right to representation before tribunal – s.10(a)(i)
does not suffer from any vagueness and/or on the ground of being
unreasonable and/or disproportionate – As per s.10(a)(i), a person
cannot be punished merely because he was the member of such
unlawful association – If a person has been a member but does not
continue to be a member after declaration, that does not attract
mischief of s.10 – However, once an association is declared unlawful
of whom the concerned person was the member and he wishes to
continue as a member despite the fact that he is well aware of the
fact that such an association is declared unlawful it shows a
conscious decision on his part and therefore he is liable to be
penalized for such an act of continuation of his membership with
such unlawful association – Therefore, thereafter he cannot be
permitted to make grievance of chilling effect – Doctrines /
Principles – Chilling effect doctrine.
[2023] 8 S.C.R. 496
496
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Constitution of India – Arts.19(1)(c) and 19(4) – Right to
freedom of speech – Value of Foreign decisions – Whether American
decisions concerning freedom of speech could be relied upon while
considering the right to freedom of speech available under the
Constitution of India more particularly Art.19(1)(c) and 19(4) –
Held: Under the Constitution of India, the right to freedom of speech
is subject to reasonable restrictions and is not an absolute right –
The Constitution permits the Parliament to frame the laws taking
into consideration the public order and/or the sovereignty of India
– Without noticing the differences in American Laws and the Indian
laws, the Supreme Court in the cases of Arup Bhuyan (two Judge
Bench decision) and Raneef erred in straightway and directly
following the US Supreme Court decisions – Before following the
American decisions, the Indian Courts are required to consider the
difference in the nature of the laws applicable in the respective
countries – Judgment / Order.
Unlawful Activities (Prevention) Act, 1967 – s.10(a)(i) –
Decisions of Supreme Court in the case of Raneef and Arup Bhuyan
(two Judge Bench decision) taking the view on reading down
s.10(a)(i) that mere membership of a banned organization will not
make a person a criminal/guilty unless he resorts to violence or
incites people to violence or creates public disorder by violence or
incitement to violence – Reading down of s.10(a)(i) without
impleading the Union of India as a party and more particularly
when the constitutional validity of the aforesaid provision was not
called in question – If proper – Held: When any provision of
Parliamentary legislation is read down in the absence of Union of
India it is likely to cause enormous harm to the interest of the State
– In absence of any challenge to the constitutional validity of
s.10(a)(i) of the UAPA there was no question of reading down of
the said provision by this Court – Reading down the provision of a
statute cannot be resorted to when the meaning of a provision is
plain and unambiguous and the legislative intent is clear – The
Court ought not to have read down s.10(a)(i) of the UAPA, 1967
when neither its’ constitutional validity was under challenge nor
the Union of India was heard.
Interpretation of Statutes – Doctrines/Principles – “Reading
down 

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