Is only membership of a banned organisation or ‘unlawful association’ sufficient enough to be punished under the UAPA? Or some overt actions over and above the membership is necessary to attract the penal provisions of the act?
A Supreme Court bench of Justices MR Shah, CT Ravikumar and Sanjay Karol has begun hearing the judgment of a two-judge bench of Justices Dipak Misra and AM Sapre. This case is related to Arup Bhuyan, Sri Indra Das and Raneef and the judgment was announced in 2014.
In the case related to Raneef, the two-member bench of the apex court in its judgment upheld that mere membership of a banned outfit will not incriminate a person until he resorts to violence or incites people to commit violence or does an act intended to create a disturbance of public peace by resorting to violence.
In the Arup Bhuyan case, the same two-member bench of the Supreme Court reiterated this view in the context of Section 3(5) of TADA.
In Indra Das’ case, the bench upheld this view once again.
Representing the view of the Union of India, Solicitor General Tushar Mehta said that if an organisation is banned under Section 3, its members will be liable to punishment up to two years and a fine may be slapped beside it. Under Section 10 (b) if a man does something more besides being a member of the banned organisation, his offence will be graver. So his punishment will be more.
Section 10 (b) (i) says that if a man continues to be a member of a banned organisation and does an act that aids and abates the offence in any way or has fire-arms or weapons or explosives that cause mass destruction and death or injuries that might lead to death, he will be liable for death punishment or life imprisonment.
The solicitor general said that if a man is a member of Lashkar-e-Taiba, which is a banned organisation, he can not say that he is only a member. He added further that if a man invites the leader of a banned outfit, he can not say that he just invited the leader for a dinner and that he did not intend to collect money or weapons or he did not conspire.
Justice Shah said that if an organisation is banned, and a person is found to be associated with the outfit or a member of the organisation, he should know that this organisation is banned. He said further that the Parliament had made being a member of the banned organisation itself an offence.
Justice Shah said further that if a person becomes a member of a banned organisation, he should be wiser, he should know that the outfit is unlawful.
This matter is significant because, in the Kedarnath Singh vs State of Bihar case of 1962, a five-judge Bench of the Supreme Court of India was tasked with deciding on the constitutionality of the provision, which, over the years, has been used as a tool to curb dissent against the powers that be.
The Bench of then Chief Justice of BP Sinha and Justices SK Das, AK Sarkar, RN Ayyangar and JR Mudholkar tried to balance the offence of Sedition against the right to free speech and expression.
The Bench was to decide multiple appeals and petitions filed before it. One of these was an appeal filed by Kedar Nath Singh against a judgment of the Patna High Court which upheld his conviction under Section 124A of the IPC.
The Court upheld that any spoken or written words which have “implicit in them the idea of subverting government by violent means” will fall under the definition of Sedition.
However, the Court clarified that any strong statements expressing disapprobation of the measures of the government or any action taken by the government will not fall within the ambit of Sedition.
The Apex Court is yet to come out with its judgment that may be considered the final word on the subject.