Holding

Section 10(a)(i) of the UAPA is valid, does not require proof of active membership, and cannot be read down absent a constitutional challenge and the Union of India's participation.

Summary

The Supreme Court examined whether a person must show "active membership" to be convicted under Section 10(a)(i) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) after an association is declared unlawful. It held that the provision plainly punishes anyone who continues to be a member of a banned association, without requiring proof of overt acts or mens rea, and that earlier decisions (Raneef, Arup Bhuyan, Indra Das) which read down the provision are not good law. The Court also ruled that reliance on U.S. Supreme Court decisions to interpret Indian constitutional rights was misplaced and that a statute cannot be read down without the Union of India being heard or a constitutional challenge being raised. Consequently, the review petitions filed by the Union of India and the State of Assam were allowed, overturning the earlier judgments.

Issues considered

Whether "active membership" must be proved beyond mere membership for conviction under Section 10(a)(i) of the UAPA.
Whether the Supreme Court erred in reading down Section 10(a)(i) of the UAPA in the decisions of Raneef, Arup Bhuyan and Indra Das.
Whether reliance on United States Supreme Court decisions is appropriate for interpreting Articles 19(1)(c) and 19(4) of the Indian Constitution.
Whether a statutory provision can be read down without the Union of India being a party and without a constitutional validity challenge.

Legislation cited

Constitution of Indias. Article 19(1)(c), s. Article 19(2), s. Article 19(4)
Constitution (Sixteenth Amendment) Act, 1963
Criminal Procedure Code, 1908
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 3(5)
Unlawful Activities (Prevention) Act, 1967s. 10(a)(i), s. 2, s. 3, s. 38, s. 39, s. 4

Subjects

UAPASection 10(a)(i)active membershipreading down doctrinefreedom of speechArticle 19constitutional validityUS Supreme Court decisionschilling effectunlawful associationterrorism

Judgment

496 [2023]REPORTS
SUPREME COURT 8 S.C.R. 496 [2023] 8 S.C.R.

A ARUP BHUYAN
v.
STATE OF ASSAM & ANR.
(Criminal Appeal No. 889 of 2007)
B 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
C
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
D 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
E
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
F 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
G
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 /
H Principles – Chilling effect doctrine.
496
ARUP BHUYAN v. STATE OF ASSAM & ANR. 497

Constitution of India – Arts.19(1)(c) and 19(4) – Right to A
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
B
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 C
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) – D
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 E
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 F
– 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 G
when neither its’ constitutional validity was under challenge nor
the Union of India was heard.
Interpretation of Statutes – Doctrines/Principles – “Reading
down Doctrine” – Discussed.
H
498 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Answering the Reference, the Court
HELD:
per M.R. SHAH, J. (for himself, C.T. Ravikumar, J. and
Sanjay Karol, J.)
B 1. Now so far as the reading down of Section 10(a)(i) of the
UAPA, 1967 by this Court in the case of Arup Bhuyan is concerned,
at the outset it is required to be noted that such reading down of
the provision of a statute could not have been made without
hearing the Union of India and/or without giving any opportunity
to the Union of India. When any provision of Parliamentary
C legislation is read down in the absence of Union of India it is
likely to cause enormous harm to the interest of the State. If the
opportunity would have been given to the Union of India to put
forward its case on the provisions of Section 10(a)(i) of the UAPA,
1967, the Union of India would have made submissions in favour
D of Section 10(a)(i) of the UAPA including the object and purpose
for enactment of such a provision and even the object and purpose
of UAPA. Even otherwise in absence of any challenge to the
constitutional validity of Section 10(a)(i) of the UAPA there was
no question of reading down of the said provision by this Court.
Therefore, in absence of any challenge to the constitutional validity
E of Section 10(a)(i) of UAPA, 1967 there was no occasion for this
Court to read down the said provision. Also, 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. This Court ought not to have read down Section 10(a)(i) of
F the UAPA, 1967 more particularly when neither the constitutional
validity of Section 10(a)(i) of the UAPA, 1967 was under challenge
nor the Union of India was heard. [Paras 11.1, 11.2, 11.3, 11.4 and
11.5][535-F-H; 536-A-E, H]
2. Considering the different position of laws in US and in
G our country more particularly faced with Articles 19(1)(c) and 19(4)
of the Constitution of India under which the right to freedom of
speech is subject to reasonable restrictions and is not an absolute
right and 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
H
ARUP BHUYAN v. STATE OF ASSAM & ANR. 499

Laws and the Indian laws, this Court in the case of Arup Bhuyan A
(two Judge Bench decision) and Raneef has erred in straightway
and directly following the US Supreme Court decisions and that
too without adverting to the differences and the position of laws
in India. In the aforesaid two decisions without noticing the
differences of the US Supreme Court this Court has just followed
B
the American decisions, which cannot be accepted. This Court
ought to have considered the differences in the American laws
and the Indian laws more particularly the provisions in the Indian
Constitution. By the aforesaid this Court does not say for a
moment that in a given case the US Supreme Court decisions
may not be taken into consideration and/or may not be guidance. C
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. [Paras 13 and 13.1][542-
G-H; 453-A-C]
3.1 Before any organization is declared unlawful a detailed D
procedure is required to be followed including the wide publicity
and even the right to a member of such association to represent
before the Tribunal. The notification issued by the Central
Government declaring a particular association unlawful, is subject
to inquiry and approval by the Tribunal as per Section 4. Once
that is done and despite that a person who is a member of such E
unlawful association continues to be a member of such unlawful
association then he has to face the consequences and is subjected
to the penal provisions as provided under Section 10 more
particularly Section 10(a)(i) of the UAPA, 1967. [Para 14.5][554-
E-F] F
3.2. A person who is a member of such an unlawful
association is as such aware of the declaration of such association
as unlawful and despite the same if he still continues to be the
member of such unlawful association which is indulging into the
unlawful activities and acting against the sovereignty and integrity
G
of India, his intention is very clear that he still wants to associate
with such an association which is indulging into ‘unlawful activities’
and acting against the interests of sovereignty and integrity of
India. The language used in the Section 10(1)(i) and the procedure
to be followed under Sections 3 & 4 of the Act, before any
association is declared as unlawful are very clear. Therefore, H
500 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Section 10(a)(i) does not suffer from any vagueness and/or on
the ground unreasonable and/or disproportionate. [Para 16.1][556-
E-G]
3.3 As per Section 10(a)(i) a person cannot be punished
merely because he was the member of such unlawful association.
B The language including Section 10 is very significant. It provides
that “wherein an association is declared unlawful” by notification
under Section 3 which has become effective under sub-Section 3
of that Section. So, it is only after the Notification under Section 3
has become effective under subsection 3, that the latter part of
that Section applies. The language of Section 10(a)(i) is also very
C cautiously worded “who is and continues to be a member of such
association”. Therefore, on true interpretation, if a person has
been a member but does not continue to be a member after
declaration, that does not attract mischief of Section 10. The
intention seems to be that not only was he a member on the day
D when the association is declared unlawful but he continues to be
a member. The intention is very clear that not only on the given
date but even after that you continue to be a member of that
association which is declared as unlawful association due to
unlawful activities which is found to be against the interests of
sovereignty and integrity of India. Therefore, once an association
E is declared unlawful of whom the concerned person was the
member wishes to continue as a member despite the fact that he
is well aware of the fact that such an association is declared
unlawful and if he still wishes to continue being a part of such
unlawful association it shows a conscious decision on his part
F and therefore liable to be penalized for such an act of continuation
of his membership with such unlawful association. Therefore,
thereafter he may not make grievance of chilling effect. [Para
17.1][557-B-F]
4. The view taken by this Court in the cases of Raneef,
G Arup Bhuyan (two Judge Bench decision), and Sri Indra Das
taking the view that under Section 3(5) of Terrorists and
Disruptive Activities (Prevention) Act, 1987 and Section 10(a)(i)
of the Unlawful Activities (Prevention) Act, 1967 mere
membership of a banned organization will not incriminate a person

H
ARUP BHUYAN v. STATE OF ASSAM & ANR. 501

unless he resorts to violence or incites people to violence and A
does an act intended to create disorder or disturbance of public
peace by resort to violence and reading down the said provisions
to mean that over and above the membership of a banned
organization there must be an overt act and/or further criminal
activities and adding the element of mens rea are held to be not a
B
good law. When an association is declared unlawful by notification
issued under Section 3 which has become effective of sub-section
3 of that Section, a person who is and continues to be a member
of such association is liable to be punished with imprisonment
for a term which may extend to two years, and shall also be liable
to fine under Section 10(a)(i) of the UAPA, 1967. [Para 18][557- C
G-H; 558-A-C]
State of Kerala vs. Raneef (2011) 1 SCC 784 : [2011] 1
SCR 590; Arup Bhuyan vs. Union of India (2011) 3
SCC 377 : [2011] 2 SCR 506 and Indra Das v. State of
Assam (2011) 3 SCC 380 : [2011] 4 SCR 289 – held D
not good law.
Babulal Parate vs. State of Maharashtra [1961] 3 SCR
423; Madhu Limaye vs. Sub-Divisional Magistrate
(1970) 3 SCC 746 : [1971] 2 SCR 711; Supdt., Central
Prison vs. Dr. Ram Manohar Lohia [1960] 2 SCR 821; E
Joseph Kuruvilla Vellukunnel vs. Reserve Bank of India
[1962] Supp 3 SCR 632; Ashoka Kumar Thakur vs.
Union of India (2008) 6 SCC 1 : [2008] 4 SCR 1;
Kesavananda Bharti vs. State of Kerala (1973) 4 SCC
225 : [1973] Suppl. SCR 1; State of Bihar vs. Union of
India (1970) 1 SCC 67 : [1970] 2 SCR 522 and F
Subramanian Swamy and others vs. Raju through
Member, Juvenile Justice Board and Anr. (2014) 8 SCC
390 : [2014] 9 SCR 283 – relied on.
Sanjeev Coke Manufacturing Company v. M/s Bharat
Cooking Coal Limited (1983) 1 SCC 147 : [1983] 1 G
SCR 1000; Kaushal Kishor v. State of Uttar Pradesh
and Others 2023 SCC OnLine SC 6; Ramlila Maidan
Incident, In re, (2012) 5 SCC 1 : [2012] 4 SCR 971;
M.C. Mehta v. Union of India (1987) 1 SCC 395 : [1987]
1 SCR 819; Pathumma v. State of Kerala (1978) 2 SCC H
502 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 1 : [1978] 2 SCR 537; People’s Union for Civil Liberties
v. Union of India (2004) 9 SCC 580 : [2003] 6 Suppl.
SCR 860; State of Gujarat v. Shyamlal Mohanlal Choksi
[1965] 2 SCR 457; Shreya Singhal v. Union of India
(2015) 5 SCC 1 : [2015] 5 SCR 963; Kedar Nath v.
State of Bihar, AIR 1962 SC 955 : [1962] Suppl. SCR
B
769; State of Bihar v. Shailabala Devi AIR 1952 SC
329 : [1952] SCR 654; S. Rangarajan v. P. Jagjivan
Ram and others (1989) 2 SCC 574 : [1989] 2 SCR
204; O.K. Ghosh v. E.X. Joseph, AIR 1963 812 : [1963]
Suppl. SCR 789; Balwant Singh v. State of Punjab (1995)
C 3 SCC 214 : [1995] 2 SCR 411; Kartar Singh v. State
of Punjab (1994) 3 SCC 569 : [1994] 2 SCR 375; T.N.
Education Deptt. Ministerial and General Subordinate
Services Assn. vs. State of Tamil Nadu (1980) 3 SCC
97 : [1980] 1 SCR 1026; Mafatlal Industrial Ltd. vs.
Union of India (1997) 5 SCC 536 : [1996] 10 Suppl.
D
SCR 585 and Thawaha Fasal vs. Union of India (2021)
SCC Online SC 1000 – referred to.
Niharendu Dutt Majumdar v. The King Emperor 1942
F.C.R. 38 – referred to.
E Schenck vs. United States 249 U.S. 47 (1919);
Brandenburg vs. Ohio 395 U.S. 444 (1969); Scales vs.
United States [6 L Ed 2d 782]; Elfbrandt vs. Russell [16
L Ed 2d 321]; Joint Anti-Fascist Refugee Committee
vs. McGrath [95 L Ed 817] – referred to.

F per SANJAY KAROL, J. (Separately concurring as well)
1. The contradistinction between the rights created by the
First Amendment of the American Constitution and Article 19 of
the Indian Constitution is the power given to the State to make
laws reasonably restricting such freedoms in India. Conversely,
G in the United States of America, restrictions have been imposed
by the Judiciary in instances, as relied upon in Arup Bhuyan and
Indra Das, however no such explicit power is available with the
Legislature. [Para 15][567-C]
2. In Arup Bhayan, the Court placed reliance on American
decisions in Elfbrandt v. Russel, Clarence Brandenberg v. State of
H
ARUP BHUYAN v. STATE OF ASSAM & ANR. 503

Ohio and United States v. Eugene Frank Robel wherein the doctrine A
of ‘guilt by association’ has been rejected. The court observed
that the abovementioned judgments apply to India too, since the
fundamental rights in India are similar to the Bill of Rights in the
U.S. Constitution. The abovementioned decisions are in
contradistinction to the scenario in question in India. The
B
American decisions primarily involve indictment on the basis of
membership of political organizations or incidents of free speech
advocating overthrow of the government. However, under Indian
law, it is not membership of political organizations etc. or free
speech or criticism of the government that is sought to be banned,
it is only those organizations which aim to compromise the C
sovereignty and integrity of India and have been notified to be
such and unlawful, whose membership is prohibited. This is in
furtherance of the objective of the UAPA, which has been enacted
to provide for the more effective prevention of certain unlawful
activities of individuals and associations and dealing with terrorist
D
activities and for matters connected therewith. The distinction,
therefore, is clear. [Paras 30 and 48][572-F; 579-A-C]
3. There is “a world of difference” between the American
and Indian scenario, so far as, sub serving public interest is
concerned. It is this difference which seemed to have escaped
the division bench’s attention in Arup Bhyan and Indra Das. E
Therefore, placing reliance on decisions rendered in a distinct
scenario as well as a demonstrably different constitutional position,
that too almost singularly, especially in cases which involve
considerations of national security and sovereignty, was not
justified. [Paras 50 and 52][580-C, F] F
Arup Bhuyan v. State of Assam (2011) 3 SCC 377 :
[2011] 2 SCR 506 and Sri Indra Das v. State of Assam
(2011) 3 SCC 380 : [2011] 4 SCR 289 – held not good
law.
Babulal Parate v. State of Maharashtra [1961] 3 SCR G
423 and Madhu Limaye v. Sub-Divisional Magistrate
(1970) 3 SCC 746 : [1971] 2 SCR 711 – followed.

H
504 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Union of India v. Naveen Jindal and Another (2004) 2
SCC 510 : [2004] 1 SCR 1038; Hyderabad Asbestos
Cement Products and Anr. v. Union of India and Ors.
(2000) 1 SCC 426 : [1999] 5 Suppl. SCR 155; Shreya
Singhal v. Union of India (2015) 5 SCC 1 : [2015] 5
SCR 963; Indian Express Newspapers (Bombay) Pvt.
B Ltd. and Others v. Union of India and Others (1985) 1
SCC 641 : [1985] 2 SCR 287; Superintendent, Central
Prison v. Dr. Ram Manohar Lohia [1960] 2 SCR 821;
Pathumma v. State of Kerala (1978) 2 SCC 1 : [1978] 2
SCR 537; M.C. Mehta v. Union of India (1987) 1 SCC
C 395 : [1987] 1 SCR 819; Ashok Kumar Thakur v. Union
of India (2008) 6 SCC 1 : [2008] 4 SCR 1; Jayendra
Vishnu Thakur v. State of Maharashtra (2009) 7 SCC
104 : [2009] 8 SCR 591 and Ramlila Maidan Incident,
In re, (2012) 5 SCC 1 : [2012] 4 SCR 971 – relied on.
Kaushal Kishor v. State of U.P. & Ors. 2023 SCC Online
D
6; Arup Bhuyan v. State of Assam (2015) 12 SCC 702;
Dharam Dutt v. Union of India (2004) 1 SCC 712 :
[2003] 6 Suppl. SCR 151; State of Madras v. VG Row
[1952] SCR 597; State of Bihar v. Shailabala Devi AIR
1952 SC 329 : [1952] SCR 654; O.K. Ghosh and Anr.
E v. E.X. Joseph AIR 1963 SC 812 : [1963] Suppl. SCR
789; A.P. Dairy Development Corpn. Federation v. B.
Narasimha Reddy (2011) 9 SCC 286 : [2011] 14 SCR 1;
Raghubar Dayal Jai Prakash v. Union of India AIR
1962 SC 263 : [1962] 3 SCR 547; Jamaat-E-Islami
Hind v. Union of India (1995) 1 SCC 428 : [1994] 6
F Suppl. SCR 316; Express Newspapers (Pvt.) Limited and
Another v. Union of India and Others [1959] SCR 12;
State of Travancore – Cochin and Others v. Bombay
Co. Ltd. [1952] SCR 1112; State of Bombay v. R.M.D.
Chamarbaugwala [1957] SCR 874; Reliance
G Petrochemicals Ltd. v. Proprietors of Indian Express
Newspapers, Bombay Pvt. Ltd. and Ors. (1988) 4 SCC
592 : [1988] 3 Suppl. SCR 212; R.K. Garg v. Union of
India (1981) 4 SCC 675 : [1982] 1 SCR 947; Maneka
Gandhi v. Union of India (1978) 1 SCC 248 : [1978] 2
SCR 621 and State of Kerela v. Raneef (2011) 1 SCC
H 784 : [2011] 1 SCR 590 – referred to.
ARUP BHUYAN v. STATE OF ASSAM & ANR. 505

Morey v. Doud 354 US 457 (1957); Secy. of Agriculture A
v. Central Roig Refining Co. 338 US 604 (1949); Ghani
v. Jones (1970) 1 QB 693; Elfbrandt v. Russel 384 U.S.
17 (1966); Clarence Brandenberg v. State of Ohio 395
U.S. 444 (1969);United States v. Eugene Frank Robel
389 U.S. 258 (1967); Clarence Brandenberg v. State of
B
Ohio 395 U.S. 444 (1969); United States v. Eugene
Frank Robel 389 U.S. 258 (1967); Scales v. United
States 367 US 203 (1960); Noto v. United States 367
US 290 (1960);Communist Party v. Subversive Activities
Control Board 367 US 1 (1961); Joint Anti-Fascist
Refugee Committee v. McGrath 341 US 123, 174 (1951); C
Keyishian v. Board of Regents of New York 385 US 589
1966; In Yates v. U.S. 354 US 298 (1957); Whitney v.
California 274 US 357 (1926); Gitlow v. New York 268
US 652 (1925); Terminiello v. Chicago 337 US 1
(1948) and De Jonge v. Oregon 299 US 353 (1936)-
D
referred to.
Case Law Reference
In the judgment of M.R. SHAH, J.
[2011] 1 SCR 590 held not good law Para 1
E
[2011] 2 SCR 506 held not good law Para 1
[1961] 3 SCR 423 relied on Para 4
[1971] 2 SCR 711 relied on Para 4
[1960] 2 SCR 821 relied on Para 4.1
F
[2012] 4 SCR 971 referred to Para 4.1
[1962] Supp 3 SCR 632 relied on Para 4.2
[1987]1 SCR 819 referred to Para 4.2
[2008] 4 SCR 1 relied on Para 4.2 G
[1978] 2 SCR 537 referred to Para 4.2
[2011] 4 SCR 289 held not good law Para 5
[2003] 6 Suppl. SCR 860 referred to Para 7.2
[1965] 2 SCR 457 referred to Para 7.3 H
506 SUPREME COURT REPORTS [2023] 8 S.C.R.

A [1983] 1 SCR 1000 referred to Para 7.4
[2015] 5 SCR 963 referred to Para 7.5
[1962] Suppl. SCR 769 referred to Para 7.8
[1952] SCR 654 referred to Para 7.9
B [1989] 2 SCR 204 referred to Para 7.10
[1963] 1 Suppl. SCR 789 referred to Para 7.11
[1995] 2 SCR 411 referred to Para 7.12
[1994] 2 SCR 375 referred to Para 7.13
[1973] Suppl. SCR 1 referred to Para 9.3
C
[1980] 1 SCR 1026 referred to Para 9.3
[1996] 10 Suppl. SCR 585 referred to Para 9.3
[2014] 9 SCR 283 relied on Para 11.4
[1970] 2 SCR 522 relied on Para 12.7
D
[1973] Suppl. SCR 1 relied on Para 12.9
In the judgment of SANJAY KAROL, J.
(2015) 12 SCC 702 referred to Para 1
[2011] 2 SCR 506 held not good law Para 2
E
[2011] 4 SCR 289 held not good law Para 2
[2003] 6 Suppl. SCR 151 referred to Para 6
[1952] SCR 597 referred to Para 7
[1952] SCR 654 referred to Para 8
F [1963] Suppl. SCR 789 referred to Para 8
[2015] 5 SCR 963 relied on Para 8
[2011] 14 SCR 1 referred to Para 10
[1962] 3 SCR 547 referred to Para 11
G [1994] 6 Suppl. SCR 316 referred to Para 13
[1961] 3 SCR 423 followed Para 16
[1971] 2 SCR 711 followed Para 17
[1985] 2 SCR 287 relied on Para 18
H [2004] 1 SCR 1038 relied on Para 19
ARUP BHUYAN v. STATE OF ASSAM & ANR. 507

[1960] 2 SCR 821 relied on Para 19 A
[1978] 2 SCR 537 relied on Para 19
[1987] 1 SCR 819 relied on Para 19
[2008] 4 SCR 1 relied on Para 19
(2009) 8 SCR 591 relied on Para 19 B
[2012] 4 SCR 971 relied on Para 20
[1959] SCR 12 referred to Para 24
[1952] SCR 1112 referred to Para 24
[1957] SCR 874 referred to Para 24 C
[1988] 3 Suppl. SCR 212 referred to Para 25
[1982] 1 SCR 947 referred to Para 26
[1978] 2 SCR 621 referred to Para 27
[2011] 1 SCR 590 referred to Para 31 D
[1999] 5 Suppl. SCR 155 relied on Para 49
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
889 of 2007.
From the Judgment and Order dated 28.03.2007 of the Designated
Court, Assam at Guwahati in TADA Sessions Case No. 13 of 1991. E
With
Review Petition (Criminal) No. 417 of 2011 in Criminal Appeal
No. 1383 of 2007, Review Petition (Criminal) No. 426 of 2011 in Criminal
Appeal No. 889 of 2007, Special Leave Petition (Crl.) Nos. 5971, 5964
F
of 2019, Criminal Appeal No. 1383 of 2007, SLP (Crl.)… CRLMP
No.16637 of 2014, and Special Leave Petition Nos. 5643, 6270 of 2019.
Tushar Mehta, Solicitor General, K M Nataraj, A.S.G., Vinay
Navare, Sanjay Parikh, R. Basant, Sr. Advs., Ms. Ranjana Narayan,
Kanu Agrawal, Rajan Kumar Chourasia, Sandeep Kumar Mahapatra,
Navanjay Mahapatra, Ashok Panigarhi, Arvind Kumar Sharma, Gurmeet G
Singh Makker, Shuvodeep Roy, Deepayan Dutta, Sai Shashank, Jawahar
Raja, Pukhrambam Ramesh Kumar, Karun Sharma, Archit Krishana,
Ms. Varsha Sharma, Ms. Moksha Sharma, Haris Beeran, Mushtaq Salim,
Azhr Assees, Radha Shyam Jena, Azim H. Laskar, Bikas Kar Gupta,
Ms. Debarati Sadhu, Ms. Debanjana Ray Choudhury, Debojyoti H
508 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Mukhopadhyay, Abhijit Sengupta, Mohamad Shareef K.P., P. A. Noor
Mohamed, Advs. for the appearing parties.
The Judgments of the Court were delivered by
M. R. SHAH, J.

B 1. Present reference to the larger Bench is made against the
judgment and order in the case of Arup Bhuyan vs. Union of India,
(2011) 3 SCC 377 as well as State of Kerala vs. Raneef, (2011) 1
SCC 784, pursuant to the order passed by this Court dated 26.08.2014,
reported as (2015) 12 SCC 702.
Background of the Reference
C
2. That the Division Bench of this Court in the case of Raneef
(supra) whilst relying upon numerous American decisions concerning
freedom of speech and position on membership of banned organizations
rejected the doctrine of “guilt by association” and observed that mere
membership of a banned organization will not incriminate a person unless
D
he resorts to violence or incites people to violence and does an act intended
to create disorder or disturbance of public peace by resort to violence. In
paragraphs 10 to 14 this Court in the case of Raneef (supra) observed
and held as under:
“10.) As regards the allegation that the respondent belongs to the
E PFI, it is true that it has been held in Redaul Husain Khan vs.
National Investigation Agency 2010 (1) SCC 521 that merely
because an organization has not been declared as an `unlawful
association’ it cannot be said that the said organization could not
have indulged in terrorist activities. However, in our opinion the
F said decision is distinguishable as in that case the accused was
sending money to an extremist organization for purchasing arms
and ammunition. That is not the allegation in the present case.
The decision in State of Maharashtra vs. Dhanendra Shriram
Bhurle 2009(11) SCC 541 is also distinguishable because good
G reasons have been given in the present case by the High Court for
granting bail to the respondent. In the present case there is no
evidence as yet to prove that the P.F.I. is a terrorist organization,
and hence the respondent cannot be penalized merely for belonging
to the P.F.I. Moreover, even assuming that the P.F.I. is an illegal
organization, we have yet to consider whether all members of the
H organization can be automatically held to be guilty.
ARUP BHUYAN v. STATE OF ASSAM & ANR. 509
[M. R. SHAH, J.]

11. In Scales vs. United States 367 U.S. 203 Mr. Justice Harlan of A
the U.S. Supreme Court while dealing with the membership clause
in the McCarran Act, 1950 distinguished between active ‘knowing’
membership and passive, merely nominal membership in a
subversive organization, and observed :
“The clause does not make criminal all association with an B
organization which has been shown to engage in illegal activity. A
person may be foolish, deluded, or perhaps mere optimistic, but he
is not by this statute made a criminal. There must be clear proof
that the defendant specifically intends to accomplish the aims of
the organization by resort to violence.”
C
12. In Elfbrandt vs. Russell 384 US 17-19 (1966) Justice Douglas
of the U.S. Supreme Court speaking for the majority observed :
“Those who join an organization but do not share its unlawful
purpose and who do not participate in its unlawful activities surely
pose no threat, either as citizens or as public employees. A law D
which applies to membership without the `specific intent’ to further
the illegal aims of the organization infringes unnecessarily on
protected freedoms. It rests on the doctrine of `guilt by association’
which has no place here.”
13. In Joint Anti-Fascist Refugee Committee vs. McGrath 341 E
US 123 at 174 (1951) Mr. Justice Douglas of the U.S. Supreme
Court observed :
“In days of great tension when feelings run high, it is a temptation
to take shortcuts by borrowing from the totalitarian techniques of
our opponents. But when we do, we set in motion a subversive F
influence of our own design that destroys us from within.”
14. We respectfully agree with the above decisions of the U.S.
Supreme Court, and are of the opinion that they apply in our country
too. We are living in a democracy, and the above observations
apply to all democracies.”
G
2.1 That thereafter the Division Bench of this Court in another
decision in the case of Arup Bhuyan (supra) whist relying upon Raneef
(supra) and relying upon the same American doctrines which were earlier
considered in the case of Raneef (supra) has observed in paragraph 12
as under:
H
510 SUPREME COURT REPORTS [2023] 8 S.C.R.

A “We respectfully agree with the above decisions, and are of
the opinion that they apply to India too, as our fundamental rights
are similar to the Bill of Rights in the U.S. Constitution. In our
opinion, Section 3(5) cannot be read literally otherwise it will violate
Articles 19 and 21 of the Constitution. It has to be read in the light
of our observations made above. Hence, mere membership of a
B
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. Hence, the conviction
of the appellant under Section 3(5) of the TADA is also not
sustainable.”
C 2.2 At this stage it is required to be noted that at the time when
Raneef (supra) and Arup Bhuyan (Supra) were decided neither Section
10(i) of the Unlawful Activities (Prevention) Act, 1967 (hereinafter
referred to as the ‘UAPA Act, 1967’) was under challenge and/or the
constitutionality of the said provision was under challenge nor even the
D Union of India was a party to the said proceedings and the Division
Benches of the Court in the aforesaid two decisions made observations
on Section 10(a)(i) of the UAPA Act, 1967 without giving any opportunity
to the Union of India. Therefore, the Union of India filed the applications
seeking permission to file a review petition on the ground that the
interpretation made by this Court in the aforesaid two decisions would be
E prejudicial to their interests and therefore, the Union of India had a right
to be heard. The State of Assam also preferred the review petitions.
2.3 Having regard to the important issue raised by the learned
Solicitor General and the Senior Counsel for the State of Assam, by
order dated 26.08.2014 reported in (2015) 12 SCC 702 the matter is
F referred to the larger Bench. While referring the matter to the larger
Bench this Court noted the submissions made by the learned Solicitor
General in paragraphs 4 to 7 and 10 to 11 as under:
“4.Mr. Ranjit Kumar, learned Solicitor General appearing
for the Union of India, has submitted that in the case of Arup
G Bhuyan vs. State of Assam, 2011 (3) SCC 377, this Court has
read down the provision to the detriment of the interest of the
Union of India when it was not a party before it. He has also
invited our attention to the decision in Sri Indra Das vs. State of
Assam 2011 (3) SCC 380. In Arup Bhuyan’s case as well as in
H the case Sri Indra Das, the two-Judge Bench has referred to many
ARUP BHUYAN v. STATE OF ASSAM & ANR. 511
[M. R. SHAH, J.]

authorities of Supreme Court of United States of America and A
thereafter quoted a passage from Kedar Nath vs. State of Bihar
AIR 1962 SC 955 and relied on State of Kerala vs. Raneef (2011)
1 SCC 784 and eventually opined thus:
“27. We may also consider the legal position, as it should
emerge, assuming that the main s. 124A is capable of being B
construed in the literal sense in which the Judicial Committee of
the Privy Council has construed it in the cases referred to above.
On that assumption, it is not open to this Court to construe the
section is such a way as to avoid the alleged unconstitutionality by
limiting the application of the section in the way in which the Federal
Court intended to apply it ? In our opinion, there are decisions of C
this Court which amply justify our taking that view of the legal
position. This Court, in the case of R.M.D. Chamarbaugwalla v.
The Union of India (1) has examined in detail the several decisions
of this Court, as also of the Courts in America and Australia. After
examining those decisions, this Court came to the conclusion that D
if the impugned provisions of a law come within the constitutional
powers of the legislature by adopting one view of the words of the
impugned section or Act, the Court will take that view of the matter
and limit its application accordingly, in preference to the view which
would make it unconstitutional on another view of the interpretation
of the words in question. E

In that case, the Court had to choose between a definition
of the expression ‘Prize Competitions” as limited to those
competitions which were of a gambling character and those which
were not. The Court chose the former interpretation which made
the rest of the provisions of the Act, Prize Competitions Act (XLII F
of 1955), with particular reference to ss. 4 and 5 of the Act and
Rules 11 and 12 framed thereunder, valid. The Court held that the
penalty attached only to those competitions which involved the
element of gambling and those competitions in which success
depended to a substantial degree on skill were held to be out of the G
purview of the Act.
The ratio decidendi in that case, in our opinion, applied to
the case in hand in so far as we propose to limit its operation only
to such activities as come within the ambit of the observations of
the Federal Court, that is to say, activities involving incitement to H
512 SUPREME COURT REPORTS [2023] 8 S.C.R.

A violence or intention or tendency to create public disorder or cause
disturbance of public peace.”
5. It is submitted by Mr. Ranjit Kumar that such reading down of
a provision should not have been done without impleading the Union
of India as a party and moreover, when the constitutional validity
B was not called in question. He has drawn our attention to Section
10 of the Unlawful Activities (Prevention) Act, 1967. It reads as
follows:
“[10. Penalty for being member of an unlawful association,
etc.- Where an association is declared unlawful by a notification
C issued under section 3 which has become effective under sub-
section (3) of that section,-
(a) a person, who
(i) is and continues to be a member of such association; or

D (ii) takes part in meetings of such association; or
(iii) contributes to, or receives or solicits any contribution
for the purpose of, such association; or
(iv) in any way assists the operations of such association,
shall be punishable with imprisonment for a term which may extend
E to two years, and shall also be liable to fine; and
(b) a person, who is or continues to be a member of such
association, or voluntarily does an act aiding or promoting in any
manner the objects of such association and in either case is in
possession of any unlicensed firearms, ammunition, explosive or
F other instrument or substance capable of causing mass destruction
and commits any act resulting in loss of human life or grievous
injury to any person or causes significant damage to any property,
(i) and if such act has resulted in the death of any person, shall be
punishable with death or imprisonment for life, and shall also be
liable to fine;
G
(ii) in any other case, shall be punishable with imprisonment
for a term which shall not be less than five years but which may
extend to imprisonment for life, and shall also be liable to fine.]”
6. The aforesaid provision was inserted by way of
H amendment with effect from 21/09/2004. Relying upon the said
ARUP BHUYAN v. STATE OF ASSAM & ANR. 513
[M. R. SHAH, J.]

provision, it is contended by him that if the view expressed in Arup A
Bhuyan (supra) and Sri Indra Das (supra) is allowed to remain in
the field various laws in other enactments would be affected. It is
further urged by him that the Court has erroneously referred to its
earlier judgment in Raneef’s case wherein the basic fact was
different, namely, the Social Democratic Party of India (SDPI)
B
was not a banned organization. The learned Solicitor General would
impress upon us that once an organization is banned, Section 10 of
the 1967 Act would come into play. Learned Solicitor General has
also drawn our attention to certain paragraphs in Raneef’s case
wherein it has been opined even assuming the PFI is an illegal
organization, yet it remains to be considered whether all the C
members of the Organization can be categorically held to be guilty.
It is put forth by him that the said judgment did not affect the
provisions in other enactments inasmuch as the PFI was not a
banned Organization, but after the decisions in Arup Bhuyan
(supra) and Sri Indra Das (supra), the Trial Courts and the High
D
Courts are relying on the said decisions by giving emphasis on the
facet of mens rea. The submission in essence, is that had the
Union of India been impleaded as a party it could have put forth its
stand before the Court and then possibly such reading down of the
provision would not have been required.
7. Mr. Jaideep Gupta, learned senior counsel appearing for E
the State of Assam, supporting the stand put forth by the Union of
India has urged that if such an interpretation is allowed to stand
the terrorism would spread and it will be difficult on the part of the
State to control the said menace. It is further canvassed by him
that the abuse of process of law would not affect the constitutional F
validity and that to when it is not under assail.
xxx xxx xxx
10. The crux of the matter as submitted by Mr. Ranjit Kumar,
learned Solicitor General for Union of India, is that when any
provision in Parliamentary legislation is read down, in the absence G
of Union of India it is likely to cause enormous harm to the interest
of the State as in many cases certain provisions have been engrafted
to protect the sovereignty and integrity of India.
11. The learned Solicitor General would contend that the
authorities which have been placed reliance upon in both the H
514 SUPREME COURT REPORTS [2023] 8 S.C.R.

A judgments by the two-Judge Bench are founded on Bill of Rights
which is different from Article 19 of the Constitution of India.
He has referred to Article 19(1)(c) and 19(4) of the
Constitution.
Article 19(1)(c) reads as follows.
B
“19(1)(c) to form associations or unions;”
The said article is further restricted by Article 19(4) which
is as follows:
(4) Nothing in sub-clause (c) of the said clause shall affect
C the operation of any existing law in so far as it imposes, or prevent
the State from making any law imposing, in the interests of 4 [the
sovereignty and integrity of India or] public order or morality,
reasonable restrictions on the exercise of the right conferred by
the said sub-clause.”
D Relying upon the same it is highlighted by the learned
Solicitor General that the Court has not kept this aspect in view
while placing heavy reliance on the foreign authorities which are
fundamentally not applicable to the interpretative process of the
provisions which have been enacted in consonance with the
provisions of the Constitution of India.
E
Regard being had to the important issue raised by the learned
Solicitor General and Mr. Jaideep Gupta, learned senior counsel
for the State of Assam, we think it appropriate that the matter
should be considered by a larger Bench. Let the Registry place
the papers before the Hon’ble the Chief Justice of India for
F
appropriate orders.”
That is how the matter is listed before this Bench of three judges.
2.4 The short issue before the Bench is whether the judgments in
Raneef (supra) and Arup Bhuyan (supra), have been correctly decided
G and whether “active membership” is required to be proven over and
above the membership of a banned organization under the UAPA, 1967.
Another issue which is required to be considered by this Bench is whether
American decisions concerning freedom of speech referred to in the
case of Raneef (supra) to which this Court agreed could have been
relied upon while considering the right to freedom of speech available
H
ARUP BHUYAN v. STATE OF ASSAM & ANR. 515
[M. R. SHAH, J.]

under the Constitution of India more particularly Article 19(1)(c) and A
19(4) of the Constitution of India? Another question which is required to
be considered is whether this Court was justified in reading down of a
provision (Section 10(a)(i) of the UAPA Act, 1967) 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?
B
2.5 While appreciating the submissions on behalf of the respective
parties on the aforesaid issues, the relevant provisions of the UAPA,
1967 are required to be referred to which are as under:
“Section 2 – Definitions:
(1) In this Act, unless the context otherwise requires,— C

(a) association means any combination or body of individuals;
(k) terrorist act has the meaning assigned to it in section 15, and
the expressions terrorism and terrorist shall be construed
accordingly; D
(l) terrorist gang means any association, other than terrorist
organisation, whether systematic or otherwise, which is concerned
with, or involved in, terrorist act;
(m) terrorist organisation means an organisation listed in the 9[First
Schedule] or an organisation operating under the same name as E
an organisation so listed;
(o) unlawful activity, in relation to an individual or association, means
any action taken by such individual or association (whether by
committing an act or by words, either spoken or written, or by
signs or by visible representation or otherwise),— F
(i) which is intended, or supports any claim, to bring about, on
any ground whatsoever, the cession of a part of the territory of
India or the secession of a part of the territory of India from
the Union, or which incites any individual or group of individuals
to bring about such cession or secession; or G
(ii) which disclaims, questions, disrupts or is intended to disrupt
the sovereignty and territorial integrity of India; or
(iii) which causes or is intended to cause disaffection against
India;
H
516 SUPREME COURT REPORTS [2023] 8 S.C.R.

A (p) unlawful association means any association,—
(i) which has for its object any unlawful activity, or which
encourages or aids persons to undertake any unlawful activity,
or of which the members undertake such activity; or
(ii) which has for its object any activity which is punishable
B under section 153A (45 of 1860) or section 153B of the Indian
Penal Code, or which encourages or aids persons to undertake
any such activity, or of which the members undertake any such
activity:
Section 3 – Declaration of an association as unlawful
C
(1) If the Central Government is of opinion that any association is,
or has become, an unlawful association, it may, by notification in
the Official Gazette, declare such association to be unlawful.
(2) Every such notification shall specify the grounds on which it is
D issued and such other particulars as the Central Government may
consider necessary:
Provided that nothing in this sub-section shall require the
Central Government to disclose any fact which it considers to be
against the public interest to disclose.
E (3) No such notification shall have effect until the Tribunal has, by
an order made under section 4, confirmed the declaration made
therein and the order is published in the Official Gazette:
Provided that if the Central Government is of opinion that
circumstances exist which render it necessary for that Government
F to declare an association to be unlawful with immediate effect, it
may, for reasons to be stated in writing, direct that the notification
shall, subject to any order that may be made under section 4, have
effect from the date of its publication in the Official Gazette.
(4) Every such notification shall, in addition to its publication in the
G Official Gazette, be published in not less than one daily newspaper
having circulation in the State in which the principal office, if any,
of the association affected is situated, and shall also be served on
such association in such manner as the Central Government may
think fit and all or any of the following modes may be followed in
effecting such service, namely:—
H
ARUP BHUYAN v. STATE OF ASSAM & ANR. 517
[M. R. SHAH, J.]

(a) by affixing a copy of the notification to some conspicuous A
part of the office, if any, of the association; or
(b) by serving a copy of the notification, where possible, on the
principal office-bearers, if any, of the association; or
(c) by proclaiming by beat of drum or by means of loudspeakers,
the contents of the notification in the area in which the activities B
of the association are ordinarily carried on; or
(d) in such other manner as may be prescribed.
Section 4 – Reference to Tribunal -
(1) Where any association has been declared unlawful by a C
notification issued under sub-section (1) of section 3, the Central
Government shall, within thirty days from the date of the publication
of the notification under the said sub-section, refer the notification
to the Tribunal for the purpose of adjudicating whether or not there
is sufficient cause for declaring the association unlawful.(2) On D
receipt of a reference under sub-section (1), the Tribunal shall
call upon the association affected by notice in writing to show
cause, within thirty days from the date of the service of such notice,
why the association should not be declared unlawful.(3) After
considering the cause, if any, shown by the association or the office-
bearers or members thereof, the Tribunal shall hold an inquiry in E
the manner specified in section 9 and after calling for such further
information as it may consider necessary from the Central
Government or from any office-bearer or member of the
association, it shall decide whether or not there is sufficient cause
for declaring the association to be unlawful and make, as F
expeditiously as possible and in any case within a period of six
months from the date of the issue of the notification under sub-
section (1) of section 3, such order as it may deem fit either
confirming the declaration made in the notification or cancelling
the same.(4) The order of the Tribunal made under sub-
section (3) shall be published in the Official Gazette.Section 5 – G
Tribunal -
(1) The Central Government may, by notification in the Official
Gazette, constitute, as and when necessary, a tribunal to be known
as the “Unlawful Activities (Prevention) Tribunal” consisting of
one person, to be appointed by the Central Government: H
518 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Provided that no person shall be so appointed unless he is a Judge
of a High Court.
(2) If, for any reason, a vacancy (other than a temporary absence)
occurs in the office of the presiding officer of the Tribunal, then,
the Central Government shall appoint another person in accordance
B with the provisions of this section to fill the vacancy and the
proceedings may be continued before the Tribunal from the stage
at which the vacancy is filled.
(3) The Central Government shall make available to the Tribunal
such staff as may be necessary for the discharge of its functions
C under this Act.
(4) All expenses incurred in connection with the Tribunal shall be
defrayed out of the Consolidated Fund of India.
(5) Subject to the provisions of section 9, the Tribunal shall have
power to regulate its own procedure in all matters arising out of
D the discharge of its functions including the place or places at which
it will hold its sittings.
(6) The Tribunal shall, for the purpose of making an inquiry under
this Act, have the same powers as are vested in a civil court under
the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit,
E in respect of the following matters, namely:
(a) the summoning and enforcing the attendance of any witness
and examining him on oath;
(b) the discovery and production of any document or other
material object producible as evidence;
F
(c) the reception of evidence on affidavits;
(d) the requisitioning of any public record from any court or
office;
(e) the issuing of any commission for the examination of
G witnesses.
(7) Any proceeding before the Tribunal shall be deemed to be a
judicial proceeding within the meaning of sections 193 and 228 of
the Indian Penal Code (45 of 1860) and the Tribunal shall be deemed
to be a civil court for the purposes of section 195 and [Chapter
H XXVI] of the [Code].
ARUP BHUYAN v. STATE OF ASSAM & ANR. 519
[M. R. SHAH, J.]

Section 6 – Period of operation and cancellation of A
notification -
(1) Subject to the provisions of sub-section (2), a notification issued
under section 3 shall, if the declaration made therein is confirmed
by the Tribunal by an order made under section 4, remain in force
for a period of [five years] from the date on which the notification B
becomes effective.(2) Notwithstanding anything contained in sub-
section (1), the Central Government may, either on its own motion
or on the application of any person aggrieved, at any time, cancel
the notification issued under section 3, whether or not the declaration
made therein has been confirmed by the Tribunal.”
C
3. Shri Tushar Mehta, learned Solicitor General has also taken us
to the background to the UAPA and the enactment of Article 19(1) and
19(4) of the Constitution of India vide Constitution (Sixteenth Amendm
nt) Act, 1963. It is submitted that exception to the freedom to form
associations under Article 19(1) was inserted in the form of sovere
gnty and integrity of India in Article 19(4), after the National Integration D
ouncil appointed a Committee on National Integration and Regionalisation.
The said committee was to look into the aspect of putting reasonable
restrictions in the interests of the sovereignty and integrity of
India. It is submitted that pursuant to the acceptance of the recommendati
ns of the Committee, the Constitution (Sixteenth Amendment) Act, 1963 E
as enacted to impose, by law, reasonable restrictions in the interests of
the sovereignty and integrity of India. Article 19(1)(c) and 19(4) of the
Constitution of India reads as follows:
“19.(1)(c) to form associations or unions;”
The said is further restricted by Article 19(4) which is as F
follows:
19(4) Nothing in sub-clause (c) of the said clause shall affect
the operation of any existing law insofar as it imposes, or prevent
the State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order or morality, G
reasonable restrictions on the exercise of the right conferred by
the said sub-clause.”
Relying upon the same it is highlighted by the learned
Solicitor General that the Court has not kept this aspect in view
while placing heavy reliance on the foreign authorities which are H
520 SUPREME COURT REPORTS [2023] 8 S.C.R.

A fundamentally not applicable to the interpretative process of the
provisions which have been enacted in consonance with the
provisions of the Constitution of India.”
3.1 It is submitted that in order to implement the provision of the
1963 Act, the Unlawful Activities (Prevention) Bill was introduced in the
B Parliament. The main objective of the UAPA is to make powers available
for dealing with activities directed against the integrity and sovereignty
of India. He has taken us to the preamble and the objects and reasons
for enactment of the UAPA. It is submitted that to achieve the object
and purpose for which the UAPA has been enacted, Section 10(a)(i)
provides that where an association is declared unlawful by a notification
C
issued under Section 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 two years, and shall also be liable to fine. It is submitted
that therefore so long as Section 10(a)(i) stands a person who is or
D continues to be a member of such association shall be liable to be punished.
It is submitted that Section 10(a)(i) does not require any further overt act
and/or mens rea. It is submitted that mere membership of a declared
unlawful association, declared unlawful under Section 3 is sufficient to
warrant the prosecution and the conviction.
E 3.2 It is submitted that under the provisions of the UAPA, 1967
before an organization/association is declared as unlawful under Section
3 of the UAPA the procedure as required under the UAPA namely Section
3 of the UAPA is required to be followed. It is submitted that even
thereafter and after any association/organization is declared as unlawful
under Section 3 of the UAPA, such association which has been declared
F
unlawful by a Notification issued under sub-section (1) of Section 3,
within 30 days from the date of the publication of the notification, the
Central Government is required to refer to the Tribunal for the purpose
of adjudicating whether or not, there is sufficient cause for declaring the
association unlawful. It is submitted that as per Section 4(2) on receipt of
G a reference under sub-section (1) of 4, the Tribunal shall thereafter call
upon the association affected by notice in writing to show cause within
30 days from the date of the service of such notice, why the association
be not declared unlawful? It is submitted that thereafter and after
considering the cause, if any, shown by the association or the office-
bearers or members thereof, the Tribunal is required to hold an inquiry in
H
ARUP BHUYAN v. STATE OF ASSAM & ANR. 521
[M. R. SHAH, J.]

the manner specified in Section 9 and after calling for such further A
information as it may consider necessary from the Central Government
or from office-bearer or member of the association, the Tribunal shall
decide whether or not there is sufficient cause for declaring the
association to be unlawful and thereafter may pass such order as it may
deem fit either confirming the declaration made in the notification or
B
cancelling the same. It is submitted that the order of the Tribunal made
under sub-section (3) shall have to be published in the Official Gazette.
3.3 Taking us to the relevant provisions of UAPA on declaration
of any organization/association as “unlawful” namely Sections 3 to 6,
learned Solicitor General has submitted that from a perusal of the
C
aforesaid provisions/sections, it is clear that the declaration of an
organization as an “unlawful organization” is not on the basis of an
executive diktat. It is submitted that such designation is actually a product
of a robust adversarial process wherein ample opportunity is given to the
organization to appeal to the better senses of a judicially trained mind in
order to justify its aims, objectives and activities being legal and not D
“unlawful” within the constitutional setup. It is submitted that the same
must have a bearing whilst deciding any question of criminalization of
“mere membership”.
4. Now so far as the correctness of the observations made by this
Court in the case of Raneef (supra) and Arup Bhuyan (supra) that E
while considering the offences under Sections 10(a)(i) the prosecution
has to prove the “active membership” of any person accused of being a
member of a banned organization, it is submitted that in the case of Arup
Bhuyan (supra) this Court has just followed the observations made in
the earlier decision in the case of Raneef (supra) in which this Court
F
just accepted and followed the American decisions referred to on the
freedom of speech applicable in America and considering the American
doctrine on freedom of speech. It is submitted that as such this Court
ought not to have straight way followed and/or accepted the American
doctrine on freedom of speech without taking into consideration the
Constitutional provisions so far as the India is concerned, more particularly G
Article 19(1)(c) and 19(4) of the Constitution. It is submitted that this
Court in the case of Babulal Parate vs. State of Maharashtra, (1961)
3 SCR 423 has specifically rejected the importing of the American
doctrine on freedom of speech and specifically rejected the said importing
in the context of ‘determining criminality’ by way of two Constitution
H
522 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Bench judgments which have not even been considered by the learned
Benches hearing the case in Raneef (supra) and Arup Bhuyan (supra).
The learned Solicitor General has heavily relied upon paragraphs 23 to
28 of the decision in the case of Babulal (supra) and paragraphs 16 &
17 of the decision in the case of Madhu Limaye vs. Sub-Divisional
Magistrate, (1970) 3 SCC 746.
B
4.1 Learned Solicitor General has also relied upon the decisions of
this Court in the case of Supdt., Central Prison vs. Dr. Ram Manohar
Lohia, (1960) 2 SCR 821 (paragraphs 9 to 11) and in the case of
Ramlila Maidan Incident, In re, (2012) 5 SCC 1 on the reliance to
be placed on American constitutional position in context of public order
C and free speech. It is submitted that in the aforesaid it is specifically
observed that the American doctrine adumbrated in Schenck case cannot
be imported or applied. It is observed that under our Constitution, this
right - freedom of speech is not an absolute right but is subject to the
restrictions. It is submitted that it is further observed that thus the position
D under our Constitution is different. It is observed by this Court in the
aforesaid decisions that fundamental right enshrined in the Constitution
itself being made subject to reasonable restrictions, the laws so enacted
to specify certain restrictions on the right to freedom of speech and
expression have to be construed meaningfully and with the constitutional
object in mind. It is submitted that it is further observed that thus there is
E a marked distinction in the language of law, its possible interpretation and
application under the Indian and the US Laws.
4.2 It is further submitted by the learned Solicitor General that on
numerous occasions this Court declined to import the American doctrine
of such subjects. Reliance is placed on the decisions of this Court in the
F case of Joseph Kuruvilla Vellukunnel vs. Reserve Bank of India,
1962 Supp (3) SCR 632 (para 50 & 75); M.C. Mehta vs. Union of
India (Shriram – Oleum Gas), (1987) 1 SCC 395 (para 29); Ashoka
Kumar Thakur vs. Union of India (2008) 6 SCC 1 (para 188 to 190)
and Pathumma vs. State of Kerala, (1978) 2 SCC 1 (para 23).
G 4.3 Making above submissions and relying upon the above decisions,
it is vehemently submitted by Shri Mehta, learned Solicitor General that
therefore the American doctrine of “clear and present danger” [Schenck
vs. United States, 249 U.S. 47 (1919)] and “imminent lawless action”
[Brandenburg vs. Ohio, 395 U.S. 444 (1969)] are alien to Indian
H constitutional law.
ARUP BHUYAN v. STATE OF ASSAM & ANR. 523
[M. R. SHAH, J.]

4.5 Making above submissions, it is submitted that the observations A
made by this Court in Raneef (supra) and Arup Bhuyan (supra)
following and/or relying upon the American doctrines on freedom of
speech may be overruled and the statutory position be reaffirmed.
5. Now so far as reading down Section 3(5) of Terrorist and
Disruptive Activities (Prevention) Act, 1987, which is pari materia to B
Section 10(a)(i) of UAPA Act, 1967 and reading down the said provision
to the extent by observing that mere membership of a banned organization
will not make a person guilty unless he resorts to violence or incites
people to violence or creates public disorder by violence or incitement to
violence and that mere membership of a banned organization will not
incriminate a person is concerned, it is vehemently submitted by Shri C
Tushar Mehta, learned Solicitor General that as such in absence of
challenge to the relevant provisions, more particularly Section 10(a)(i) of
the UAPA, 1967, such a reading down was not permissible. It is submitted
that as such in the case of Raneef (supra), which has been subsequently
followed in the cases of Arup Bhuyan (supra) and Indra Das v. State D
of Assam, (2011) 3 SCC 380, this Court was considering the bail
application and the constitutional validity of Section 10(a)(i) of the UAPA
Act was not under challenge.
5.1 Learned Solicitor General has relied upon the decision of this
Court in the case of Subramanian Swamy & Others v. Raju through E
Member, Juvenile Justice Board & Another, reported in (2014)
8 SCC 390 on as to when the power of reading down of a provision can
be exercised. Reliance is placed on paragraphs 59 to 62 of the said
judgment. It is submitted that therefore when language in Section 10(a)(i)
of the UAPA Act is very clear and unambiguous and looking to the object
and purpose for which UAPA Act was enacted and taking into F
consideration the plain and literal meaning of a statute and in the absence
of any constitutional challenge, it was impermissible for this Court to
read down the statute. It is submitted that there was no occasion to
“read down”
Section 10 of the UAPA Act in absence of a constitutional G
challenge.
6. Shri Vinay Navare, learned Senior Counsel appearing on behalf
of the State of Assam, while adopting the submissions made by Shri
Tushar Mehta, learned Solicitor General, has in addition submitted that
H
524 SUPREME COURT REPORTS [2023] 8 S.C.R.

A under the scheme of a statute (UAPA) every effort is made to ensure
that every member of the association is made aware of the fact that
such association is declared as unlawful.
6.1 It is further submitted that the language employed in Section
10 is very significant in the present context. It provides that “where an
B association is declared as unlawful by notification under Section 3 which
has become effective under sub-section (3) of that Section.” It is submitted
that therefore it is only after notification under Section 3 has become
effective under sub-section (3), that the latter part of that Section applies.
It is submitted that language of Section 10(a)(i) is very cautiously worded
C – ‘who is and continues to be a member of such association’. It is submitted
that so if a person ‘has been’ a member but does not ‘continue to be’ a
member after declaration, that does not attract mischief under Section
10. The intention in the Section is that not only is he a member on the day
when the association is declared unlawful but he continues to be a member.
It is submitted that therefore a person who is a member or wishes to be
D a member is well aware of the fact that such an association is declared
unlawful and if he still wishes to continue being a part of such an unlawful
association it shows a clear and conscious intention on his part and Section
10 of the UAPA Act penalises this act of mere membership with such
unlawful association.
E 6.2 It is further submitted that Section 38 of the UAPA Act, 1967
provides that a person who associates himself or professes to be associated
with a terrorist organization with intention to further its activities commits
an offence relating to the membership of a terrorist organization. It is
submitted that therefore it is seen that in case of a terrorist organization
F mere membership is not sufficient but there has to be an act with intention
to further the activities of the terrorist organization which is not the case
under Section 10 with an unlawful association.
6.3 It is submitted that there is a clear distinction between the
provisions under Section 10 which punish mere membership of an unlawful
G association and Section 38 which do not punish passive membership with
terrorist organization. It is submitted that the reason is that Section 10
has already undergone the rigours of Section 3 but Section 38 has not
undergone the rigours of Section 3 and it is a delegated legislation involving
inclusion of a name of an organisation in the schedule. It is submitted that
even if you are a member, it gives an opportunity in Section 38 that the
H
ARUP BHUYAN v. STATE OF ASSAM & ANR. 525
[M. R. SHAH, J.]

terrorist organization was not a terrorist organization at the time when A
you became a member and he is not taking part.
6.4 It is submitted that the United Liberation Front of Assam
(ULFA) has been declared to be an unlawful association from time to
time.
Making above submissions and relying upon the above decisions, B
Shri Tushar Mehta, learned Solicitor General and Shri Vinay Navare,
learned Senior Counsel appearing on behalf of the State of Assam have
prayed to hold that the observations/decisions of this Court in the cases
of Raneef (supra), Arup Bhuyan (supra) and Indra Das (supra)
taking the view that mere membership of a banned organization will not C
incriminate a person unless he resorts to violence or incites people to
violence or does an act intending to create disorder or disturbance of
public peace by resort to violence is not a good law, in view of the specific
provision under Section 10(a)(i) of the UAPA Act, 1967, the
constitutionality of which is not under challenge and even otherwise on
merits also looking to the object and purpose of enacting the UAPA Act, D
1967.
7. Shri Sanjay Parikh, learned Senior Counsel appearing for the
applicant – People’s Union for Democratic Rights has heavily relied upon
the subsequent decision of this Court in the case of Indra Das (supra).
It is submitted that in the said decision, after following the decisions of E
this Court in the cases of Raneef (supra) and Arup Bhuyan (supra),
this Court has rightly interpreted Section 3(5) of TADA Act, 1987 and
Section 10(a)(i) of the UAPA Act, 1967 which is in consonance with
Articles 14, 19 and 21 of the Constitution. It is submitted that in the case
of Indra Das (supra), this Court has observed and held as under: F
“a. statutory provisions cannot be read in isolation, but have to be
read in consonance with the fundamental rights guaranteed by our
Constitution.
b. The Constitution is the highest law of the land and no statute
can violate it. If there is a statute which appears to violate it we G
can either declare it unconstitutional or we can read it down to
make it constitutional
c. Had there been no Constitution having fundamental rights in it
then of course a plain and literal meaning could be given to Section
3(5) of TADA or Section 10 of the Unlawful Activities (Prevention) H
526 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Act. But since there is a Constitution in our country providing for
democracy and fundamental rights we cannot give these statutory
provisions such a meaning as that would make them
unconstitutional.”
7.1 It is submitted that in the case of Indra Das (supra), this
B Court has interpreted the relevant provisions of TADA and UAPA to
bring them in conformity with the Constitution.
7.2 It is further submitted that this Court has on several occasions
interpreted provisions to bring them in consonance with the Constitution
and even by reading down to save the provisions from unconstitutionality.
C It is submitted that in the case of People’s Union for Civil Liberties
v. Union of India, (2004) 9 SCC 580 (paragraphs 48 & 49), this
Court has read “mens rea” into the statute to save it from
unconstitutionality.
7.3 It is submitted that in the case of State of Gujarat v. Shyamlal
D Mohanlal Choksi, 1965 (2) SCR 457, this Court read down Section
94 of the Cr.P.C. to exclude persons accused from its ambit. It is submitted
that Shyamlal Mohanlal Choksi (supra) was a special leave petition
from a High Court decision and the Union of India was not a party to
those proceedings.

E 7.4 On the submission made on behalf of the Union of India that
without hearing the Union of India, this Court ought not to have and/or
could not have read down Section 10(a)(i) of the UAPA Act, 1967 or
Section 3(5) of TADA Act, 1987, Shri Sanjay Parikh, learned Senior
Counsel has relied upon the decision of this Court in the case of Sanjeev
Coke Manufacturing Company v. M/s Bharat Cooking Coal
F Limited, reported in (1983) 1 SCC 147 (paragraph 25). It is
submitted that in the said decision, it is observed and held by this Court
that “no one may speak for the Parliament and Parliament is never before
the Court.” It is further observed that “After Parliament has said what it
intends to say, only the Court may say what the Parliament meant to say,
G none else.” It is further observed that “once a statute leaves Parliament
House, the Court’s is the only authentic voice which may echo (interpret)
the Parliament and the Court will do the same with reference to the
language of the statute and other permissible aids.” It is submitted that
while reading down Section 10(a)(i) of the UAPA Act and Section 3(5)
of the TADA Act, this Court has interpreted the statutory provisions in
H light of Articles 14, 19 and 21 of the Constitution. It is submitted that
ARUP BHUYAN v. STATE OF ASSAM & ANR. 527
[M. R. SHAH, J.]

judgments under reference correctly hold that “mere membership of a A
banned organization 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.”
7.5 Now so far as the submission made by Shri Tushar Mehta,
learned Solicitor General that while deciding Raneef (supra) and Arup B
Bhuyan (supra), this court ought not to have relied upon the US Supreme
Court judgments, Shri Sanjay Parikh, learned Senior Counsel has submitted
that in the case of Shreya Singhal v. Union of India, (2015) 5 SCC 1,
this Court has held that the legal position in India is not different. He has
relied upon the observations made in paragraph 41 made in the case of
Sherya Singhal (supra). C

7.6 It is submitted that the decision of this Court in the case of
Shreya Singhal (supra) has been recently relied upon and considered
by one of the Hon’ble Judge of the Constitution Bench in the case of
Kaushal Kishor v. State of Uttar Pradesh and Others, 2023 SCC
OnLine SC 6, while concurring on the question that the restrictions D
under Article 19(2) are exhaustive.
7.7 It is further submitted by Shri Sanjay Parikh, learned Senior
Counsel appearing on behalf of the applicant that Shreya Singhal (supra)
is the culmination of an unbroken line of Indian precedent stipulating that
speech or association can be prevented or punished only if, E

• Speech or association is ‘intended’ or has the ‘tendency’ to
disturb ‘public order’, ‘sovereignty and integrity of India’,
‘security of the state’, or one of the other permitted ground
of restrictions under Article 19; and
F
• The connection between the speech or association and the
‘intended’ or likely effect on ‘public order’, ‘sovereignty
and integrity of India’ or ‘security of the state’ is “proximate”
not “far- fetched, hypothetical or problematical or too remote
in the chain of its relation.”
G
7.8 Shri Parikh, learned Senior Counsel has relied upon the
observations made by the Federal Court in the case of Niharendu Dutt
Majumdar v. The King Emperor 1942 F.C.R. 38 taking the view
that “the acts or words complained of must, either incite to disorder or
must be such as to satisfy reasonable men that that is their intention or
tendency.” It is submitted that the said decision has been approved and H
528 SUPREME COURT REPORTS [2023] 8 S.C.R.

A adopted by this Court in the case of Kedar Nath v. State of Bihar, AIR
1962 SC 955. He has relied upon the observations made in paragraph
26 of Kedar Nath (supra).
7.9 It is further submitted that in the case of State of Bihar v.
Shailabala Devi, AIR 1952 SC 329, this Court asserted that it was not
B sufficient for law restricting freedom of speech and expression to be
under one of the permitted heads of restriction enumerated under Article
19(2), but must also have a proximate link to it. The Patna High Court
had found that a pamphlet whose central theme was “to bring about a
bloody revolution and change completely the present order of things”,
fell foul of a provision targeting “words or signs or visible representations
C
which incite, or encourage, or tend to incite to or encourage the commission
of any offence of murder or any cognizable offence involving violence.”
It is submitted that this Court however found that for rhetoric of the kind
used in the pamphlet to be justifiably restricted, the State would have to
establish that it was addressed to an excited mob or other such exceptional
D circumstance.
7.10 Shri Sanjay Parikh, learned Senior Counsel has also heavily
relied upon the observations made in paragraph 45 in the case of
S. Rangarajan v. P. Jagjivan Ram and others, (1989) 2 SCC 574,
which read as under:
E “45. …. There does indeed have to be a compromise between
the interest of freedom of expression and special interests. But
we cannot simply balance the two interests as if they are of equal
weight. Our commitment of freedom of expression demands that
it cannot be suppressed unless the situations created by allowing
F the freedom are pressing and the community interest is endangered.
The anticipated danger should not be remote, conjectural or far-
fetched. It should have proximate and direct nexus with the
expression. The expression of thought should be intrinsically
dangerous to the public interest. In other words, the expression
should be inseparably locked up with the action contemplated like
G
the equivalent of a “spark in a powder keg”.
7.11 It is further submitted that in the case of O.K. Ghosh v.
E.X. Joseph, AIR 1963 812, this Court was considering the scope of
the term ‘public order’ in Clause (4) of Article 19, that allows for reasonable
restrictions on the right to Freedom of Association. It is submitted that
H
ARUP BHUYAN v. STATE OF ASSAM & ANR. 529
[M. R. SHAH, J.]

this Court held that “the words ‘public order’ occurs even in clause (2), A
which refers, inter alia, to security of the State and public order. There
can be no doubt that the said words must have the same meaning in both
clauses (2) and (4).” It is further observed that “…a restriction can be
said to be in the interests of public order only if the connection between
the restriction and the public order is proximate and direct. Indirect or
B
far-fetched or unreal connection between the restriction and public order
would not fall within the purview of the expression “in the interests of
public order.”
7.12 It is further submitted that in the case of Balwant Singh v.
State of Punjab, (1995) 3 SCC 214, it is observed and held by this
C
Court that only where the written or spoken words have the tendency or
intention of creating public disorder or disturbance of law and order or
affect public tranquility, that the law needs to step in to prevent such an
activity. It is submitted that it is further observed that the intention to
cause disorder or incite people to violence is the sine qua non of the
offence under Section 153-A of the IPC and the prosecution has to prove D
the existence of mens rea in order to succeed.
7.13 It is further submitted that in the case of Kartar Singh v.
State of Punjab, (1994) 3 SCC 569, this Court held that:
i) mens rea is an essential ingredient of a crime;
E
ii) vague provisions can implicate innocent persons in offences;
and
iii) mens rea must be read into Section 2(i)(a) of TADA
It is submitted that the reasoning in Kartar Singh (supra) will
also apply to Section 10(a)(i) of the UAPA Act, 1967. F
It is further submitted that in fact, even at the Constituent Assembly
debates, Dr. B.R. Ambedkar clarified that
“…it is wrong to say that fundamental rights in America are
absolute. The difference between the position under the American G
Constitution and the Draft Constitution is one of form and not of
substance. That the fundamental rights in America are not absolute
rights is beyond dispute. In support of every exception to the
fundamental rights set out in the Draft Constitution, one can refer
to at least one judgment of the United States Supreme Court.
H
530 SUPREME COURT REPORTS [2023] 8 S.C.R.

A What the Draft Constitution has done is that instead of formulating
fundamental rights in absolute terms and depending upon our
Supreme Court to come to the rescue of Parliament by inventing
the doctrine of police power, it permits the State directly to impose
limitations upon the fundamental rights. There is really no difference
in the result. What one does directly the other does indirectly. In
B
both cases, the fundamental rights are not absolute.”
7.14 It is submitted that the submissions made on behalf of the
Union of India by the Solicitor General are mostly on non-applicability of
American cases and they do not deal with the applicability of the principle
evolved in American cases and their acceptance by the Indian Supreme
C Court.
8. It is further submitted that even otherwise the provisions of
Section 10(a)(i) of the UAPA Act and Section 3(5) of the TADA Act are
vague and overbroad and will have a chilling effect and therefore this
Court in the aforesaid three decisions have rightly read down the said
D provisions to bring them in consonance with Articles 14, 19 and 21 of the
Constitution of India.
8.1 It is further submitted by Shri Sanjay Parikh, learned Senior
Counsel that in the recent decision of this Court in the case of Thawaha
Fasal v. Union of India, 2021 SCC OnLine SC 1000, this Court has
E observed and held that “mere association with a terrorist organization is
not sufficient to attract Section 38 and mere support given to a terrorist
organization is not sufficient to attract Section 39.” It is submitted that it
is further observed that “association and the support have to be with
intention of furthering the activities of a terrorist organization.”
F 8.2 It is further submitted that even if there can be restrictions
under Article 19(2), in that case also, the restrictions should be reasonable
and shall stood the test of reasonableness or proportionality.
Making above submissions and relying upon the aforesaid decisions,
it is prayed to answer the reference accordingly and not to disturb the
G view taken by this Court in the cases of Raneef (supra); Arup Bhuyan
(supra) and Indra Das (supra).
9. In rejoinder to the submissions made by Shri Sanjay Parikh,
learned Senior Counsel appearing on behalf of the applicant/intervener
Shri Tushar Mehta, learned Solicitor General has submitted that so far as
H
ARUP BHUYAN v. STATE OF ASSAM & ANR. 531
[M. R. SHAH, J.]

the submissions made by Shri Sanjay Parikh, learned Senior Counsel on A
reasonability and proportionality, it is submitted that a detailed adversarial
judicial process prior to declaration of organization as banned organization
is required to be undertaken under Sections 3 and 4 of the UAPA, 1967.
It is submitted that the said judicial adversarial process ensures inbuilt
reasonability and proportionality and ensures that such provisions are
B
just, fair and reasonable.
9.1 Now so far as the submission made by Shri Parikh, learned
senior counsel on mens rea element and reliance placed upon the
judgments in criminal law which have held mens rea an essential ingredient
of crime, it is submitted by Shri Mehta, learned Solicitor General that the
question of mens rea may depend on the facts and circumstances of C
each case and would have to be adjudicated during trial. It is submitted
that the judgments in Raneef (supra), Arup Bhuyan (supra) and Indra
Das (supra) as such do not deal with the concept of mens rea and
neither do the judgments in America on which the reliance has been
placed. D
9.2 Now so far as the reliance placed upon the decisions relating
to IPC and more particularly the decisions of this Court in the case of
Kedar Nath Singh (supra), Balwant Singh (supra) and Bidal (supra),
it is submitted that the said reliance may not be appropriate as the offences
under the IPC are standalone offences and are applied for a far wider E
canvass than the offence of membership of banned organization under
the UAPA and TADA. It is submitted that the banning of an organization
under the UAPA takes place after a detailed adversarial judicial process
which is given wider publicity, thereby ensuring reasonableness, limited
application and availability of information with regard to the inherently
legal nature of such banned organization. It is submitted that the same is F
absent in IPC offences which can be applied by any police officer
investigating any offence, without there being the presence of any banned
organization or the procedure preceding the banning of such organization.
It is submitted that therefore there is vast differences between UAPA
and IPC offences. It is submitted that in the present case the Parliament G
in its wisdom and taking into consideration the sovereignty of India has
thought it fit to enact the UAPA and provide under Section 10(a)(i) that
mere member of the banned organization itself is an offence.
9.3 Now so far as the submission of Shri Praikh, learned Senior
Counsel on vagueness and possibility of misuse of Section 10(a)(i), it is H
532 SUPREME COURT REPORTS [2023] 8 S.C.R.

A submitted that as observed and held by this Court in catena of decisions
vagueness and possibility of misuse cannot be a ground for reading down
a declaration of unconstitutionality. It is submitted that possibility of abuse/
misuse of a law would not be a relevant consideration while considering
the constitutionality of a provision.
B Reliance is placed on the decisions of this Court in the case of
Kedar Nath Singh vs. State of Bihar, AIR 1962 SC 955;
Kesavananda Bharti vs. State of Kerala, (1973) 4 SCC 225; T.N.
Education Deptt. Ministerial and General Subordinate Services
Assn. vs. State of Tamil Nadu, (1980) 3 SCC 97 and Mafatlal
Industrial Ltd. vs. Union of India, (1997) 5 SCC 536. It is submitted
C that in the aforesaid decisions it is held that merely because power
may sometimes be abused, it is no ground for denying the existence of
power.
9.4 Now so far as the reliance placed upon the decision of
Thawaha Fasal vs. Union of India, (2021) SCC Online SC 1000 by
D Shri Parikh, learned Senior Counsel, it is vehemently submitted by Shri
Mehta, learned Solicitor General that the said decision shall not be
applicable while considering the offence under Section 10(a)(i) of UAPA,
1967. It is submitted that in the said judgment this Court was dealing with
the offence under Section 38 of UAPA, 1967 and was not dealing with
E the provisions concerning membership. Sections 38 and 39 of the UAPA,
1967 are worded completely differently as compared to the provisions
concerning criminalization of membership of a banned organization. It is
submitted that therefore any observations made while considering the
different provision/offence may not be stricto sensu applicable while
considering Section 10(a)(i) of the UAPA, 1967.
F
Making above submissions, it is prayed to declare that the
observations made by this Court in the case of Raneef (supra), Arup
Bhuyan (supra) and Indra Das (supra) are not a good law taking the
view that mere membership of a banned organization will not make a
person a guilty unless he resorts to violence or incites people to violence
G or creates public disorder by violence or incitement to violence.
10. Heard Shri Tushar Mehta, learned Solicitor General appearing
on behalf of Union of India, Shri Vinay Navare, learned Senior Cou
sel appeaing for the State of Assam and Shri Sanjay Parikh, learned
Senior Counsel appearing on behalf of the appellant/intervener.
H
ARUP BHUYAN v. STATE OF ASSAM & ANR. 533
[M. R. SHAH, J.]

10.1 At the outset, it is required to be noted that pursuant to the A
order passed by this Court reported in the case of Arup Bhuyan vs.
State of Assam, (2015) 12 SCC 702, the present reference is before
the larger Bench. The present reference to the larger Bench is made on
the request made on behalf of the Union of India and the State of Assam
doubting the correctness of the decisions of this Court in the case of
B
Raneef (supra) and Arup Bhuyan (supra) taking the view on reading
down Section 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.
10.2 Therefore, this Court in the present reference is required to C
consider the correctness of the decisions of this Court in Raneef (supra),
Arup Bhuyan (supra) and Indra Das Singh (supra) to the extent as
above.
10.3 Section 10 of the UAPA, 1967 reads as under:
D
“Section 10 in The Unlawful Activities (Prevention) Act,
1967
1[10. Penalty for being member of an unlawful association, etc.—
Where an association is declared unlawful by a notification issued
under section 3 which has become effective under sub--section E
(3) of that section,—
(a) a person, who-—
(i) is and continues to be a member of such association; or
(ii) takes part in meetings of such association; or
F
(iii) contributes to, or receives or solicits any contri-bution for the
purpose of, such association; or
(iv) in any way assists the operations of such association, shall be
punishable with imprisonment for a term which may extend to two
years, and shall also be liable to fine; and G
(b) a person, who is or continues to be a member of such association,
or voluntarily does an act aiding or promoting in any manner the
objects of such association and in either case is in possession of
any unlicensed firearms, ammunition, explosive or other instrument
or substance capable of causing mass destruction and commits H
534 SUPREME COURT REPORTS [2023] 8 S.C.R.

A any act resulting in loss of human life or grievous injury to any
person or causes significant damage to any property,—
(i) and if such act has resulted in the death of any person, shall be
punishable with death or imprisonment for life, and shall also be
liable to fine;
B (ii) in any other case, shall be punishable with imprisonment for a
term which shall not be less than five years but which may extend
to imprisonment for life, and shall also be liable to fine.]”
10.4 Having gone through the decision of this Court in the case of
Raneef (supra), it appears and cannot be disputed that in the said case
C this Court was considering the bail application. The constitutional validity
of Section 10 more particularly Section 10(a)(i) of the UAPA, 1967 was
not under challenge before this Court. It is also required to be noted that
even the Union of India was not a party and/or the Union of India was
not even heard while deciding the case of Raneef (supra). Despite the
D above, this Court while deciding the bail application has made certain
observations that mere membership of a banned organization will not
make a person a criminal and/or mere membership of a banned
organization cannot be an offence. In the case of Raneef (supra) this
Court has heavily relied upon and followed the American Supreme Court
decisions which were dealing with the relevant provisions of the American
E Laws and/or the laws prevailing in the America. If the entire judgment in
the case of Raneef (supra) is seen except following the American
Supreme Court decisions in the case of Scales vs. United States [6 L
Ed 2d 782]; Elfbrandt vs. Russell [16 L Ed 2d 321] and Joint Anti-
Fascist Refugee Committee vs. McGrath, [95 L Ed 817], there
F does not appear to be any further discussion on the constitutional validity
and the validity of Section 10(a)(i) of UAPA which specifically provides
that if a person was and continues to be a member of the banned
organization, he can be said to have committed an offence and he can be
punished. Therefore, as such the observations made by this Court in the
case of Raneef (supra) are to be treated having confined to the bail
G matter only. At this stage, it is required to be noted that as such in
paragraph 8 this Court in the case of Raneef (supra) has specifically
observed that “we are presently only considering the bail matter and are
not deciding whether the respondent is guilty or not”.
10.5 Now so far as the decision of this Court in the case of Arup
H Bhuyan vs. State of Assam, (2011) 3 SCC 377, taking the view that
ARUP BHUYAN v. STATE OF ASSAM & ANR. 535
[M. R. SHAH, J.]

mere membership of a banned organization will not incriminate a person A
unless he resorts to violence or incites people to violence and does an act
intended to create disorder or disturbance of public peace by resort to
violence……., is concerned it is required to be noted that in the said
decision this Court has just followed the decision in the case of Raneef
(supra). In the said decision this Court has also considered some other
B
American Judgments of the US Supreme Court (para 10 & 11).
10.6 From the judgment and order passed by this Court in the case
of Arup Bhuyan (Supra), it appears that after referring to the decisions
of the US Supreme Court in paras 10 & 11 thereafter this Court had read
down Section 3(5) of TADA and has observed that mere membership of
a banned organization will not incriminate a person unless he resorts to C
violence or incites people to violence and does an act intended to create
disorder or disturbance of public peace by resort to violence.
10.7 It is required to be noted that even while deciding Arup
Bhuyan (supra) neither the constitutional validity of Section 3(5) of the
TADA nor the Union of India was heard. Even in both the aforesaid D
decisions this Court had not taken into consideration Article 19(1)(c) and
Article 19(4) of the Constitution of India.
10.8 In the case of Indra Das (supra) this Court has just followed
the earlier decision in the case of Raneef (supra) and Arup Bhuyan
(supra). E

11. In light of the aforesaid factual aspects let us now consider the
correctness of the decisions of this Court in the case of Raneef (supra),
Arup Bhuyan (supra) and Indra Das (supra).
11.1 Now so far as the reading down of Section 10(a)(i) of the F
UAPA, 1967 by this Court in the case of Arup Bhuyan (supra) is
concerned, at the outset it is required to be noted that such reading down
of the provision of a statute could not have been made without hearing
the Union of India and/or without giving any opportunity to the Union of
India.
G
11.2 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. If the opportunity would have been given to the
Union of India to put forward its case on the provisions of Section 10(a)(i)
of the UAPA, 1967, the Union of India would have made submissions in
favour of Section 10(a)(i) of the UAPA including the object and purpose H
536 SUPREME COURT REPORTS [2023] 8 S.C.R.

A for enactment of such a provision and even the object and purpose of
UAPA. The submission made by Shri Parikh, learned Senior Counsel
relying upon the decision of this Court in the case of Sanjeev Coke
(supra) that it is ultimately for the Court to interpret and read down the
provision to save any provision from declaring as unconstitutional is
concerned, it is true that it is ultimately for the Court to interpret the law
B
and/or particular statute. However, the question is not the power of the
Courts. The question is whether can it be done without hearing the Union
of India?
11.3 Even otherwise in absence of any challenge to the
constitutional validity of Section 10(a)(i) of the UAPA there was no
C
question of reading down of the said provision by this Court. Therefore,
in absence of any challenge to the constitutional validity of Section 10(a)(i)
of UAPA, 1967 there was no occasion for this Court to read down the
said provision.
11.4 Even otherwise as observed and held by this Court in the
D
case of Subramanian Swamy and others vs. Raju through Member,
Juvenile Justice Board and Anr., (2014) 8 SCC 390 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. This
Court has thereafter laid down the fundamental principle of “reading
E down doctrine” as under:
“Courts must read the legislation literally in the first instance. If on
such reading and understanding the vice of unconstitutionality is
attracted, the courts must explore whether there has been an
unintended legislative omission. If such an intendment can be
F reasonably implied without undertaking what, unmistakably, would
be a legislative exercise, the Act may be read down to save it
from unconstitutionality. At the cost of repetition, it is observed
that reading down a particular statute even to save it from
unconstitutionality is not permissible unless and until the
G constitutional validity of such provision is under challenge and the
opportunity is given to the Union of India to defend a particular
parliamentary statute”.
11.5 In view of the above in all the aforesaid three decisions, this
Court ought not to have read down Section 10(a)(i) of the UAPA, 1967
H more particularly when neither the constitutional validity of Section 10(a)(i)
ARUP BHUYAN v. STATE OF ASSAM & ANR. 537
[M. R. SHAH, J.]

of the UAPA, 1967 was under challenge nor the Union of India was A
heard.
12. As observed hereinabove and even it can be seen from the
decisions of this Court in the case of Arup Bhuyan (Supra) and Raneef
(supra) that while deciding the abovesaid cases this Court has followed
the US Supreme Court decisions on freedom of speech and on mere B
membership without any criminality and/or overt act and mere
membership be said to have committed an offence or not. Therefore, the
next question which is posed for consideration before this Court is whether
this Court was justified/right in following the US Supreme Court judgments
which as such were on interpretation and/or considering the laws of
United States. C

12.1 How far the decisions of US Supreme Court on “freedom of
speech and/or the public order” can be made applicable vis-à-vis the
laws in India, few decisions of this Court on applicability of the US
Supreme Court decisions vis-à-vis the laws applicable in India are required
to be referred to and considered. D

12.2 In the case of Babulal Parate vs. State of Maharashtra,
(1961) 3 SCR 423, it is observed in paragraphs 23 to 27 as under:
“23. The argument that the test of determining criminality in
advance is unreasonable, is apparently founded upon the doctrine E
adumbrated in Scheneck case [Scheneck v. U.S., 249, US 47]
that previous restraints on the exercise of fundamental rights are
permissible only if there be a clear and present danger. It seems to
us, however, that the American doctrine cannot be imported under
our Constitution because the fundamental rights guaranteed under
Article 19(1) of the Constitution are not absolute rights but, as F
pointed out in State of Madras v. V.G. Row [(1952) 1 SCC 410 :
1952 SCR 597] are subject to the restrictions placed in the
subsequent clauses of Article 19. There is nothing in the American
Constitution corresponding to clauses (2) to (6) of Article 19 of
our Constitution. The Fourteenth Amendment to the U.S. G
Constitution provides, among other things, that “no State shall make
or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law;
….”.
H
538 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 24. The framework of our Constitution is different from
that of the Constitution of the United States. Then again, the
Supreme Court of the United States has held that the privileges
and immunities conferred by the Constitution are subject to social
control by resort to the doctrine of police power. It is in the light of
this background that the test laid down in Scheneck
B
case [Scheneck v. U.S., 249, US 47] has to be understood.
25. The language of Section 144 is somewhat different. The
test laid down in the section is not merely “likelihood” or
“tendency”. The section says that the Magistrate must be satisfied
that immediate prevention of particular acts is necessary to
C
counteract danger to public safety etc. The power conferred by
the section is exercisable not only where present danger exists but
is exercisable also when there is an apprehension of danger.
26. Apart from this it is worthy of note that in Scheneck
case [Scheneck v. U.S., 249, US 47] the Supreme Court was
D
concerned with the right of freedom of speech and it observed:
“It well may be that the prohibition of law abridging the
freedom of speech is not confined to previous restraints, although
to prevent them may have been the main purpose…. We admit
that in many places and in ordinary times the defendants, in saying
E all that was said in the circular, would have been within their
constitutional rights. But the character of every act depends upon
the circumstances in which it is done.… The most stringent
protection of free speech would not protect a man in falsely shouting
fire in a theatre, and causing a panic. It does not even protect a
F man from an injunction against uttering words that may have all
the effect of force…. The question in every case is whether the
words used are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring
about the substantive evils that Congress has a right to prevent. It
is a question of proximity and degree.
G
27. Whatever may be the position in the United States it
seems to us clear that anticipatory action of the kind permissible
under Section 144 is not impermissible under clauses (2) and (3)
of Article 19. Both in clause (2) (as amended in 1951) and in
clause (3), power is given to the legislature to make laws placing
H
ARUP BHUYAN v. STATE OF ASSAM & ANR. 539
[M. R. SHAH, J.]

reasonable restrictions on the exercise of the rights conferred by A
these clauses in the interest, among other things, of public order.
Public order has to be maintained in advance in order to ensure it
and, therefore, it is competent to a legislature to pass a law permitting
an appropriate authority to take anticipatory action or place
anticipatory restrictions upon particular kinds of acts in an
B
emergency for the purpose of maintaining public order. We must,
therefore, reject the contention.”
12.3 In the case of Madhu Limaye vs. Sub-Divisional
Magistrate, (1970) 3 SCC 746, while reconsidering and affirming
the judgment of Babulal Parate (supra), this Court considered in a
C
combination of seven Hon’ble Judges, speaking through Mr. Justice
Hidayatullah, J., has observed and held in paragraphs 16 & 17 as
under:
“16. We may here observe that the overlap of public order
and public tranquillity is only partial. The terms are not always
D
synonymous. The latter is a much wider expression and takes in
many things which cannot be described as public disorder. The
words “public order” and “public tranquillity” overlap to a certain
extent but there are matters which disturb public tranquillity without
being a disturbance of public order. A person playing loud music in
his own house in the middle of the night may disturb public E
tranquillity, but he is not causing public disorder. “Public order” no
doubt also requires absence of disturbance of a state of serenity in
society but it goes further. It means, what the Frunch designate
order publique, defined as an absence of insurrection, riot
turbulence, or crimes of violence. The expression “public order”
F
includes absence of all acts which are a danger to the security of
the State and also acts which are comprehended by the expression
“order publique” explained above but not acts which disturb only
the serenity of others.
17. The English and American precedents and legislation
G
are not of such help. The Public Order Act, 1936 was passed
because in 1936 different political organisations marched in
uniforms causing riots. In America the First Amendment freedoms
have no such qualifications as in India and the rulings are apt to be
misapplied to our Constitution.”
H
540 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 12.4 Thereafter in the case of Supdt., Central Prison vs. Dr.
Ram Manohar Lohia, (1960) 2 SCR 821, this Court had taken note
of the difference in the American Law and the Indian Law more
particularly the restrictions under Article 19(2).
12.5 Thereafter in the case of Ramlila Maidan Incident, In re,
B (2012) 5 SCC 1, it is observed and held in paragraphs 7 to 11 on
applicability of the American doctrine/US Supreme Court decisions as
under:
“7. In contradistinction to the above approach of the US
Supreme Court, the Indian Constitution spells out the right to
C freedom of speech and expression under Article 19(1)(a). It also
provides the right to assemble peacefully and without arms to every
citizen of the country under Article 19(1)(b). However, these rights
are not free from any restrictions and are not absolute in their
terms and application. Articles 19(2) and 19(3), respectively, control
the freedoms available to a citizen. Article 19(2) empowers the
D State to impose reasonable restrictions on exercise of the right to
freedom of speech and expression in the interest of the factors
stated in the said clause. Similarly, Article 19(3) enables the State
to make any law imposing reasonable restrictions on the exercise
of the right conferred, again in the interest of the factors stated
E therein.
8. In face of this constitutional mandate, the American
doctrine adumbrated in Schenck case [63 L Ed 470 : 249 US 47
(1919)] cannot be imported and applied. Under our Constitution,
this right is not an absolute right but is subject to the abovenoticed
restrictions. Thus, the position under our Constitution is different.
F
9. In Constitutional Law of India by H.M. Seervai (4th
Edn.), Vol. 1, the author has noticed that the provisions of the two
Constitutions as to freedom of speech and expression are
essentially different. The difference being accentuated by the
provisions of the Indian Constitution for preventive detention which
G
have no counterpart in the US Constitution. Reasonable restriction
contemplated under the Indian Constitution brings the matter in
the domain of the court as the question of reasonableness is a
question primarily for the court to decide. (Babulal Parate v. State
of Maharashtra [AIR 1961 SC 884 : (1961) 2 Cri LJ 16 : (1961)
H 3 SCR 423])
ARUP BHUYAN v. STATE OF ASSAM & ANR. 541
[M. R. SHAH, J.]

10. The fundamental right enshrined in the Constitution itself A
being made subject to reasonable restrictions, the laws so enacted
to specify certain restrictions on the right to freedom of speech
and expression have to be construed meaningfully and with the
constitutional object in mind. For instance, the right to freedom of
speech and expression is not violated by a law which requires that
B
the name of the printer and publisher and the place of printing and
publication should be printed legibly on every book or paper.
11. Thus, there is a marked distinction in the language of
law, its possible interpretation and application under the Indian and
the US laws. It is significant to note that the freedom of speech is
the bulwark of a democratic Government. This freedom is essential C
for proper functioning of the democratic process. The freedom of
speech and expression is regarded as the first condition of liberty.
It occupies a preferred position in the hierarchy of liberties, giving
succour and protection to all other liberties. It has been truly said
that it is the mother of all other liberties. Freedom of speech plays D
a crucial role in the formation of public opinion on social, political
and economic matters. It has been described as a “basic human
right”, “a natural right” and the like. With the development of law
in India, the right to freedom of speech and expression has taken
within its ambit the right to receive information as well as the right
of press.” E

12.6 In the case of Joseph Kuruvilla Vellukunnel vs. Reserve
Bank of India, 1962 Supp (3) SCR 632, it is observed in para 75 that
the aid of American concepts, laws and precedents in the interpretation
of our laws is not always without its dangers and they have therefore to
be relied upon with some caution if not, with hesitation because of the F
difference in the nature of those laws and of the institutions to which
they apply.
12.7 In the case of State of Bihar vs. Union of India, (1970) 1
SCC 67, it is observed and held in para 13 as under:
G
“Our attention was drawn to some provisions of the
American Constitution and of the Constitution Act of Australia
and several decisions bearing on the interpretation of provision
which are somewhat similar to Art. 131. But as the similarity is
only limited, we do not propose to examine either the provisions
referred to or the decisions to which our attention was drawn. In H
542 SUPREME COURT REPORTS [2023] 8 S.C.R.

A interpreting our Constitution we must not be guided by decisions
which do not bear upon provisions identical with those in our
Constitution.”
12.8 In the case of Ashok Kumar Thakur vs. Union of India,
(2008) 6 SCC 1, it is observed in para 165 as under:
B
“165. At the outset, it must be stated that the decisions of
the United States Supreme Court were not applied in the Indian
context as it was felt that the structure of the provisions under the
two Constitutions and the social conditions as well as other factors
are widely different in both the countries. Reference may be made
C to Bhikaji Narain Dhakras & Ors. Vs. The State of Madhya
Pradesh & Anr.56 and A.S. Krishna Vs. State of Madras57
wherein this Court specifically held that the due process clause in
the Constitution of the United States of America is not applicable
to India. While considering the scope and applicability of Article
D 19(1)(g) in Kameshwar Prasad and Others Vs. State of Bihar
and Another, it was observed –
“As regards these decisions of the American Courts, it
should be borne in mind that though the First Amendment to
the Constitution of the United States reading “Congress shall
E make no law ….abridging the freedom of speech….” appears
to confer no power on the Congress to impose any restriction
on the exercise of the guaranteed right, still it has always been
understood that the freedom guaranteed is subject to the police
power – the scope of which however has not been defined
with precision or uniformly.”
F
12.9 In the similar case of Kesavananda Bharati case, (1973)
4 SCC 225, it is noticed by this Court that there are structural differences
in the Constitution of India and the Constitution of the United States of
America.

G 13. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand and considering the different
position of laws in US and in our country more particularly faced with
Articles 19(1)(c) and 19(4) of the Constitution of India under which the
right to freedom of speech is subject to reasonable restrictions and is not
an absolute right and the constitution permits the Parliament to frame the
H
ARUP BHUYAN v. STATE OF ASSAM & ANR. 543
[M. R. SHAH, J.]

laws taking into consideration the public order and/or the sovereignty of A
India, without noticing the differences in American Laws and the Indian
laws, this Court in the case of Arup Bhuyan (supra) and Raneep
(supra) has erred in straightway and directly following the US Supreme
Court decisions and that too without adverting to the differences and the
position of laws in India.
B
13.1 In the aforesaid two decisions without noticing the differences
of the US Supreme Court (referred to in the said decisions) this Court
has just followed the American decisions to which we are not agreeable.
This Court ought to have considered the differences in the American
laws and the Indian laws more particularly the provisions in the Indian C
Constitution. By the aforesaid we do not say for a moment that in a given
case the US Supreme Court decisions may not be taken into consideration
and/or may not be a guidance. 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.
D
13.2 As observed and held by this Court in the case of Joseph
Kuruvilla Vellukunnel (supra), the aid of American concepts, laws
and precedents in the interpretation to which laws is not always without
its dangers and they have therefore to be relied upon with some caution
if not with hesitation because of the difference in the nature of those
laws and the institutions to which they apply. E

14. Now the next question which is posed for consideration before
this Court is whether Section 10(a)(i) is required to be read down so as
to save the said provision from being declared unconstitutional and is
required to be read down as had been done in the case of Arup Bhuyan
(supra) and Raneep (supra) that mere membership of a banned F
organization will not incriminate a person unless he resorts to violence or
incites people to violence and does an act intended to create disorder or
disturbance of public peace by resort to violence meaning thereby over
and above the membership of a banned organization there must be a
mens rea required to be established and proved and/or there must be a G
further overt act? While deciding this issue elaborate submissions have
been made by Shri Tushar Mehta, learned Solicitor General, Shri Vinay
Navare, learned Senior Counsel appearing for the State of Assam and
Shri Sanjay Parikh, learned Senior Counsel appearing on behalf of the
appellant/intervener.
H
544 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 14.1 While considering the aforesaid issue relevant provisions of
the Constitution of India and the UAPA, 1967 are required to be referred
to which are as under:
“19. Protection of certain rights regarding freedom
of speech, etc.—(1) All citizens shall have the right—
B (c) to form associations or unions [or co-operative societies];
[(2) Nothing in sub-clause (a) of clause (1) shall affect the
operation of any existing law, or prevent the State from making
any law, in so far as such law imposes reasonable restrictions on
the exercise of the right conferred by the said sub-clause in the
C interests of [the sovereignty and integrity of India,] the security of
the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation
or incitement to an offence.]
(4) Nothing in sub-clause (c) of the said clause shall affect
D the operation of any existing law in so far as it imposes, or prevent
the State from making any law imposing, in the interests of [the
sovereignty and integrity of India or] public order or morality,
reasonable restrictions on the exercise of the right conferred by
the said sub-clause.”
E Relevant provisions of UAPA of 1967 are as under:
2. Definitions.—(1) In this Act, unless the context otherwise
requires,—
(a) “association” means any combination or body of
individuals;
F
[(ec) “person” includes—
(i) an individual,
(ii) a company,

G (iii) a firm,
(iv) an organisation or an association of persons or a body of
individuals, whether incorporated or not,
(v) every artificial juridical person, not falling within any of the
preceding sub-clauses, and
H
ARUP BHUYAN v. STATE OF ASSAM & ANR. 545
[M. R. SHAH, J.]

(vi) any agency, office or branch owned or controlled by any person A
falling within any of the preceding sub-clauses;]
(k) “terrorist act” has the meaning assigned to it in Section 15,
and the expressions “terrorism” and “terrorist” shall be
construed accordingly;
(l) “terrorist gang” means any association, other than terrorist B
organisation, whether systematic or otherwise, which is
concerned with, or involved in, terrorist act;
(m) “terrorist organisation” means an organisation listed in the [First
Schedule] or an organisation operating under the same name
as an organisation so listed; C

(p) “unlawful association” means any association,—
(i) which has for its object any unlawful activity, or which
encourages or aids persons to undertake any unlawful activity,
or of which the members undertake such activity; or D
(ii) which has for its object any activity which is punishable under
Section 153-A or Section 153-B of the Indian Penal Code (45
of 1860), or which encourages or aids persons to undertake
any such activity, or of which the members undertake any
such activity:
E
Provided that nothing contained in sub-clause (ii) shall apply to
the State of Jammu and Kashmir;
3. Declaration of an association as unlawful.—(1) If
the Central Government is of opinion that any association is, or
has become, an unlawful association, it may, by notification in the F
Official Gazette, declare such association to be unlawful.
(2) Every such notification shall specify the grounds on which
it is issued and such other particulars as the Central Government
may consider necessary:
Provided that nothing in this sub-section shall require the G
Central Government to disclose any fact which it considers to be
against the public interest to disclose.
(3) No such notification shall have effect until the Tribunal
has, by an order made under Section 4, confirmed the declaration
made therein and the order is published in the Official Gazette: H
546 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Provided that if the Central Government is of opinion that
circumstances exist which render it necessary for that Government
to declare an association to be unlawful with immediate effect, it
may, for reasons to be stated in writing, direct that the notification
shall, subject to any order that may be made under Section 4, have
effect from the date of its publication in the Official Gazette.
B
(4) Every such notification shall, in addition to its publication
in the Official Gazette, be published in not less than one daily
newspaper having circulation in the State in which the principal
office, if any, of the association affected is situated, and shall also
be served on such association in such manner as the Central
C Government may think fit and all or any of the following modes
may be followed in effecting such service, namely:
(a) by affixing a copy of the notification to some conspicuous
part of the office, if any, of the association; or

D (b) by serving a copy of the notification, where possible, on
the principal office-bearers, if any, of the association; or
(c) by proclaiming by beat of drum or by means of
loudspeakers, the contents of the notification in the area in which
the activities of the association are ordinarily carried on; or
E (d) in such other manner as may be prescribed.
4. Reference to Tribunal.—(1) Where any association
has been declared unlawful by a notification issued under sub-
section (1) of Section 3, the Central Government shall, within thirty
days from the date of the publication of the notification under the
F said sub-section, refer the notification to the Tribunal for the purpose
of adjudicating whether or not there is sufficient cause for declaring
the association unlawful.
(2) On receipt of a reference under sub-section (1), the
Tribunal shall call upon the association affected by notice in writing
G to show cause, within thirty days from the date of the service of
such notice, why the association should not be declared unlawful.
(3) After considering the cause, if any, shown by the
association or the office-bearers or members thereof, the Tribunal
shall hold an inquiry in the manner specified in Section 9 and after
H calling for such further information as it may consider necessary
ARUP BHUYAN v. STATE OF ASSAM & ANR. 547
[M. R. SHAH, J.]

from the Central Government or from any office-bearer or member A
of the association, it shall decide whether or not there is sufficient
cause for declaring the association to be unlawful and make, as
expeditiously as possible and in any case within a period of six
months from the date of the issue of the notification under sub-
section (1) of Section 3, such order as it may deem fit either
B
confirming the declaration made in the notification or cancelling
the same.
(4) The order of the Tribunal made under sub-section (3)
shall be published in the Official Gazette.
8. Power to notify places for the purpose of an unlawful C
association.—(1) Where an association has been declared
unlawful by a notification issued under Section 3 which has become
effective under sub-section (3) of that section, the Central
Government may, by notification in the Official Gazette, notify
any place which in its opinion is used for the purpose of such
unlawful association. D

Explanation.—For the purposes of this sub-section, “place”
includes a house or building, or part thereof, or a tent or vessel.
(2) On the issue of a notification under sub-section (1), the
District Magistrate within the local limits of whose jurisdiction such E
notified place is situate or any officer authorised by him in writing
in this behalf shall make a list of all movable properties (other than
wearing-apparel, cooking vessels, beds and beddings, tools of
artisans, implements of husbandry, cattle, grain and foodstuffs and
such other articles as he considers to be of a trivial nature) found
in the notified place in the presence of two respectable witnesses. F
(3) If, in the opinion of the District Magistrate, any articles
specified in the list are or may be used for the purpose of the
unlawful association, he may make an order prohibiting any person
from using the articles save in accordance with the written orders
of the District Magistrate. G
(4) The District Magistrate may thereupon make an order
that no person who at the date of the notification was not a resident
in the notified place shall, without the permission of the District
Magistrate, enter, or be on or in, the notified place:
H
548 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Provided that nothing in this sub-section shall apply to any
near relative of any person who was a resident in the notified
place at the date of the notification.
(5) Where in pursuance of sub-section (4), any person is
granted permission to enter, or to be on or in, the notified place,
B that person shall, while acting under such permission, comply with
such orders for regulating his conduct as may be given by the
District Magistrate.
(6) Any police officer, not below the rank of a sub-inspector,
or any other person authorised in this behalf by the Central
Government may search any person entering, or seeking to enter,
C
or being on or in, the notified place and may detain any such person
for the purpose of searching him:
Provided that no female shall be searched in pursuance of
this sub-section except by a female.
(7) If any person is in the notified place in contravention of
D
an order made under sub-section (4), then, without prejudice to
any other proceedings which may be taken against him, he may
be removed therefrom by any officer or by any other person
authorised in this behalf by the Central Government.
(8) Any person aggrieved by a notification issued in respect
E of a place under sub-section (1) or by an order made under sub-
section (3) or sub-section (4) may, within thirty days from the date
of the notification or order, as the case may be, make an application
to the Court of the District Judge within the local limits of whose
jurisdiction such notified place is situate—
F (a) for declaration that the place has not been used for the purpose
of the unlawful association; or
(b) for setting aside the order made under sub-section (3) or sub-
section (4),
and on receipt of the application the Court of the District Judge
G shall, after giving the parties an opportunity of being heard, decide
the question.
[10. Penalty for being member of an unlawful
association, etc.—Where an association is declared unlawful by
a notification issued under Section 3 which has become effective
H under sub-section (3) of that section,—
ARUP BHUYAN v. STATE OF ASSAM & ANR. 549
[M. R. SHAH, J.]

(a) a person, who— A
(i) is and continues to be a member of such association; or
(ii) takes part in meetings of such association; or
(iii) contributes to, or receives or solicits any contribution for
the purpose of, such association; or B
(iv) in any way assists the operations of such association,
shall be punishable with imprisonment for a term which may
extend to two years, and shall also be liable to fine; and
(b) a person, who is or continues to be a member of such
association, or voluntarily does an act aiding or promoting in C
any manner the objects of such association and in either
case is in possession of any unlicensed firearms, ammunition,
explosive or other instrument or substance capable of
causing mass destruction and commits any act resulting in
loss of human life or grievous injury to any person or causes D
significant damage to any property,—
(i) and if such act has resulted in the death of any person, shall
be punishable with death or imprisonment for life, and shall
also be liable to fine;
(ii) in any other case, shall be punishable with imprisonment for E
a term which shall not be less than five years but which
may extend to imprisonment for life, and shall also be liable
to fine.]
13. Punishment for unlawful activities.—(1) Whoever—
(a) takes part in or commits, or F
(b) advocates, abets, advises or incites the commission of,
any unlawful activity, shall be punishable with imprisonment for a
term which may extend to seven years, and shall also be liable to
fine.
G
(2) Whoever, in any way, assists any unlawful activity of
any association, declared unlawful under Section 3, after the
notification by which it has been so declared has become effective
under sub-section (3) of that section, shall be punishable with
imprisonment for a term which may extend to five years, or with
fine, or with both. H
550 SUPREME COURT REPORTS [2023] 8 S.C.R.

A (3) Nothing in this section shall apply to any treaty, agreement
or convention entered into between the Government of India and
the Government of any other country or to any negotiations therefor
carried on by any person authorised in this behalf by the Government
of India.
B 38. Offence relating to membership of a terrorist
organisation.—(1) A person, who associates himself, or professes
to be associated, with a terrorist organisation with intention to
further its activities, commits an offence relating to membership
of a terrorist organisation:
C Provided that this sub-section shall not apply where the
person charged is able to prove—
(a) that the organisation was not declared as a terrorist organisation
at the time when he became a member or began to profess to
be a member; and
D (b) that he has not taken part in the activities of the organisation at
any time during its inclusion in the [First Schedule] as a terrorist
organisation.
(2) A person, who commits the offence relating to
membership of a terrorist organisation under sub-section (1), shall
E be punishable with imprisonment for a term not exceeding ten
years, or with fine, or with both.
39. Offence relating to support given to a terrorist
organisation.—(1) A person commits the offence relating to
support given for a terrorist organisation,—
F (a) who, with intention to further the activity of a terrorist
organisation,—
(i) invites support for the terrorist organisation, and
(ii) the support is not or is not restricted to provide money or
other property within the meaning of Section 40; or
G
(b) who, with intention to further the activity of a terrorist
organisation, arranges, manages or assists in arranging or
managing a meeting which, he knows, is—
(i) to support the terrorist organisation, or
H (ii) to further the activity of the terrorist organisation, or
ARUP BHUYAN v. STATE OF ASSAM & ANR. 551
[M. R. SHAH, J.]

(iii) to be addressed by a person who associates or professes to A
be associated with the terrorist organisation; or
(c) who, with intention to further the activity of a terrorist
organisation, addresses a meeting for the purpose of
encouraging support for the terrorist organisation or to further
its activity. B
(2) A person, who commits the offence relating to support
given to a terrorist organisation under sub-section (1) shall be
punishable with imprisonment for a term not exceeding ten years,
or with fine, or with both.”
Thus, the rights guaranteed under Article 19(1)(a) (Right to freedom C
of speech and expression) and under Article 19(1)(c) (Right to form
association or unions) are not absolute rights, but are subject to reasonable
restrictions as per Article 19(2) and 19(4) of the Constitution of India.
Article 19 (2) (3) & (4) have been amended vide the Constitution
(Sixteenth Amendment) Act, 1963 and the words “sovereignty and
D
integrity of India” have been inserted. Therefore, as per Article 19(2)(3)
& (4) nothing in clause (a), (b) and (c) of clause 1 of Article 19 shall
affect the operation of any existing law or prevent the State from making
any law in so far as such law imposes reasonable restrictions on the
exercises of the right conferred by the said sub-clauses in the interests
of sovereignty and integrity of India, the security of State……As E
per Article 19(4) nothing in sub-clause (c) (Right to form Associations or
Unions) shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, in the
interests of sovereignty and integrity of India or public order or
morality, reasonable restrictions on the exercise of the right conferred by
F
the said sub clause. At this stage the statement of objects and reasons
for amending Article 19(2)(3) & (4) are required to be referred to and
considered.
The statements of objects and reasons appended to the Constitution
(Sixteenth Amendment) Bill, 1963 which was enacted as the Constitution
(Sixteenth Amendment) Act, 1963 reads as under: G
“STATEMENT OF OBJECTS AND REASONS
The Committee on National Integration and Regionalism
appointed by the National Integration Council recommended that
article 19 of the Constitution be so amended that adequate powers
H
552 SUPREME COURT REPORTS [2023] 8 S.C.R.

A become available for the preservation and maintenance of the
integrity, and sovereignty of the Union. The Committee were further
of the view that every candidate for the membership of a State
Legislature or Parliament, and every aspirant to, and incumbent
of, public office should pledge himself to uphold the Constitution
and to preserve the integrity and sovereignty of the Union and that
B
forms of oath in the Third Schedule to the Constitution should be
suitably amended for the purpose. It is proposed to give effect to
these recommendations by amending clauses (2), (3) and (4) of
article 19 for enabling the State to make any law imposing
reasonable restrictions on the exercise of the rights conferred by
C sub-clauses (a), (b) and (c) of clause (1) of that article in the
interests of the sovereignty and integrity of India.”
14.2 The UAPA, 1967 has been enacted in exercise of powers
conferred under Article 19(2) & (4) of the Constitution of India. At this
stage, it is required to be noted that exceptions to the freedom to form
D associations under Article 19(1) was inserted in the form of sovereignty
and integrity of India under Article 19(4), after the National Integration
Council (NIC) appointed a Committee on National Integration and
Regionalisation. The said Committee was to look into the aspect of putting
reasonable restrictions in the interests of the sovereignty and integrity of
India. Pursuant to the acceptance of the recommendations of the said
E Committee, the Constitution (Sixteenth Amendment) Act, 1963 came to
be enacted to impose by law, reasonable restrictions in the interests of
sovereignty and integrity of India. In order to implement the provisions of
1963 Act, the Unlawful Activities (Prevention) Bill was introduced in the
Parliament. The main objective of the UAPA is to make powers available
F for dealing with activities directed against the integrity and sovereignty
of India. It is also required to be noted that pursuant to the
recommendation of the Committee on National Integration and
Regionalisation appointed by the National Integration Council Act on whose
recommendation the Constitution (Sixteenth Amendment) Act, 1963 was
enacted, UAPA has been enacted. It appears that National Integration
G Council appointed a Committee on National Integration and
Regionalisation to look into, inter alia, the aspect of putting reasonable
restrictions in the interests of sovereignty and integrity of India and
thereafter the UAPA has been enacted. Therefore, the UAPA has be
n enacted to make powers available for dealing with the activities direct
H d against integrity and sovereignty of India.
ARUP BHUYAN v. STATE OF ASSAM & ANR. 553
[M. R. SHAH, J.]

14.3 Now let us consider the Preamble of the UAPA, 1967. As A
per Preamble, UAPA has been enacted to provide for the more effective
prevention of certain unlawful activities of individuals and associations
and dealing with terrorist activities and for matters connected therewith.
Therefore the aim and object of enactment of UAPA is also to provide
for more effective prevention of certain unlawful activities. That is
B
why and to achieve the said object and purpose of effective prevention
of certain unlawful activities the Parliament in its wisdom has provided
that where an association is declared unlawful by a notification issued
under Section 3, 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. Therefore, the C
Parliament in its wisdom had thought it fit that once an association is
declared unlawful after following due procedure as required under
Section 3 and subject to the approval by the Tribunal still a person
continues to be a member of such association is liable to be punished/
penalized. D
14.4 At this stage it is required to be noted that before an association
is declared unlawful, the procedure as required under Section 3 of the
Act is required to be followed/undertaken. As per Section 3(1) if the
Central Government is of the opinion that any association is, or has become
an unlawful association, it may, by notification in the Official Gazette, E
declare such association to be unlawful. As per Section 3(2) every such
notification shall specify the grounds on which it is issued and such other
particulars as the Central Government may consider necessary….subject
to the right of the Central Government not to disclose any fact which it
considers to be against the public interest to disclose. Section 3(3) provides
that no such notification shall have effect until the Tribunal has, by an F
order made under Section 4, confirmed the declaration made therein and
the order is published in the Official Gazette. It also confers power upon
the Central Government to declare an association to be unlawful with
immediate effect if the Central Government is of the opinion that
circumstances exist which render it necessary to declare an association G
to be unlawful with immediate effect, however subject to the reasons to
be stated in writing and subject to any order that may be made under
Section 4. As per Section 4 every such notification shall in addition to its
publication in the Official Gazette be published in not less than one daily
newspaper having circulation in the State in which the principal office, if
H
554 SUPREME COURT REPORTS [2023] 8 S.C.R.

A any, of the association affected is situated, and shall be served on such
association in such a manner as the Central Government may think fit.
As per Section 4 where any association has been declared unlawful by a
notification issued under sub-section (1) of Section 3, the Central
Government is required, within thirty days from the date of the publication
of the notification, refer the notification to the Tribunal for the purpose of
B
adjudicating whether or not there is sufficient cause for declaring the
association unlawful. As per Section 4(2) on receipt of a reference the
Tribunal shall call upon the association affected by notice in writing to
show cause, why the association should not be declared unlawful.
Thereafter the Tribunal is required to hold an inquiry in the manner specified
C in Section 9 and after calling for such further information as it may
consider necessary from the Central Government or from any office-
bearer or member of the association, it shall decide whether or not
there is sufficient cause for declaring the association to be unlawful and
make, as expeditiously as possible and in any case within a period of six
D months from the date of the issue of the notification under sub-section
(1) of Section 3, such order as it may deem fit either confirming the
declaration made in the notification or cancelling the same.
14.5 Thus from the aforesaid it can be seen that before any
organization is declared unlawful a detailed procedure is required to be
E followed including the wide publicity and even the right to a member of
such association to represent before the Tribunal. As observed
hereinabove the notification issued by the Central Government declaring
a particular association unlawful, the same is subject to inquiry and
approval by the Tribunal as per Section 4. Once that is done and despite
that a person who is a member of such unlawful association continues to
F be a member of such unlawful association then he has to face the
consequences and is subjected to the penal provisions as provided under
Section 10 more particularly Section 10(a)(i) of the UAPA, 1967.
14.6 At this stage it is required to be noted that a particular
association is declared unlawful only after the Central Government is
G satisfied that such association is indulging to unlawful activity and the
same is against sovereignty and integrity of India. ‘Unlawful activity’ is
defined under Section 2(o) and ‘unlawful association’ is defined under
Section 2(p). Thus, thereafter a person who is the member of such
unlawful association cannot be permitted to say that still he may continue
H to be associated with and/or continue to be a member of such unlawful
ARUP BHUYAN v. STATE OF ASSAM & ANR. 555
[M. R. SHAH, J.]

association despite such an association is declared unlawful on the ground A
of its unlawful activities which is found to be against the interests of the
sovereignty and integrity of India. At the cost of repetition, it is observed
that the object and purpose of the enactment of UAPA is to provide for
more effective prevention of certain unlawful activities. To punish such
a person who is continued as a member of such unlawful association B
which is declared unlawful due to unlawful activities can be said to be in
furtherance of providing for effective prevention of the unlawful activities.
Therefore, as such Section 10(a)(i) which provides that where an
association is declared unlawful by a notification issued under Section 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 C
with imprisonment for a term which may extend to 2 years and shall also
be liable to fine, can be said to be absolutely in consonance with Article
19(1)(2) & (4) of the Constitution of India and can be said to be in
furtherance of the object and purpose for which the UAPA has been
enacted. D
15. Now so far as the submission of Shri Parikh, learned Senior
Counsel on mens rea element and the reliance placed upon the
judgments referred to hereinabove on mens rea and in support of his
submissions that mere membership of a person of such unlawful
association alone cannot be a ground to punish such person including E
the decision of Kedar Nath(supra) and other decisions are concerned,
at the outset it is required to be noted that the said decisions shall not be
applicable while considering the provisions of UAPA. The offences
under IPC and offences under the UAPA both are different. As
observed hereinabove in the present case an association is declared F
unlawful after following due procedure as required under Section 3
and subject to the approval by the Tribunal under Section 4 and after
giving an opportunity to such association, the officebearers ofthe
association and even the member of the association.
15.1 Now so far as the reliance placed upon the decision of this G
Court in Kedar Nath Singh (supra) by Shri Parikh, learned Senior
Counsel is concerned, at the outset it is required to be noted that the said
decision was pre – Constitution (Sixteenth Amendment) Act, 1963. Post
Kedar Nath Singh (supra) on the recommendation of the National
Integration Council, Article 19(2) and 19(4) which operate as exception
H
556 SUPREME COURT REPORTS [2023] 8 S.C.R.

A to freedom of speech and freedom of association respectively, have been
amended to specifically include an exception as to “sovereignty and
integrity of India”. Therefore, the same will have a material bearing on
any question as to the application of Articles 19 & 21 in the context of
UAPA. Thus, UAPA is to be interpreted in congruence with the
amendment of the Constitution in 1963 including “sovereignty and integrity
B
of India” as an exception to Article 19.
16. Now so far as the submission made by Shri Parikh, learned
Senior Counsel on the vagueness and possibility of misuse of Section
10(i)(a) is concerned, at the outset it is required to be noted that as per
catena of decisions of this Court mere possibility of misuse cannot be a
C ground and/or relevant consideration while considering the constitutionality
of a provision. As per the settled position of law any action which is the
result of abuse/misuse of any law is subject to challenge. But on the
possibility of abuse/misuse of law otherwise constitutionally valid
legislation cannot be declared unconstitutional.
D 16.1 Now so far as the submission on vagueness of Section 10(a)(i)
is concerned, as observed hereinabove an association is declared unlawful
after complying with all the requirements under Sections 3 & 4 of the
UAPA, 1967 as discussed hereinabove. A person who is a member of
such an unlawful association is as such aware of the declaration of such
E association as unlawful and despite the same if he still continues to be
the member of such unlawful association which is indulging into the
unlawful activities and acting against the sovereignty and integrity of
India, his intention is very clear that he still wants to associate with such
an association which is indulging into ‘unlawful activities’ and acting against
the interests of sovereignty and integrity of India. The language used in
F the Section 10(1)(i) and the procedure to be followed under Sections 3 &
4 of the Act, before any association is declared as unlawful are very
clear. There is no vagueness at all as sought to be contended by Shri
Sanjay Parikh, learned Senior Counsel. Therefore, Section 10(a)(i) does
not suffer from any vagueness and/or on the ground unreasonable and/
G or disproportionate.
17. Now so far as the submission made by Shri Parikh, learned
Senior Counsel on chilling effect doctrine is concerned, it is required to
be noted that a person knowing full well that an association of which he
is the member is declared as unlawful association due to its unlawful
H activities and acting against the interests of sovereignty and integrity of
ARUP BHUYAN v. STATE OF ASSAM & ANR. 557
[M. R. SHAH, J.]

India and still he continues to be a member of such unlawful association A
thereafter such person cannot be permitted to submit on chilling effect.
The consequences are provided under the Act itself. Such a person is
made to understand and/or known that to continue with the membership
of such unlawful association itself is an offence. Despite such knowledge
still he continues then is liable to be punished more particularly so long as
B
Section 10(a)(i) stands and is not declared unconstitutional.
17.1 At this stage it is required to be noted that as per Section
10(a)(i) a person cannot be punished merely because he was the member
of such unlawful association. The language including Section 10 is very
significant. It provides that “wherein an association is declared unlawful”
by notification under Section 3 which has become effective under sub- C
Section 3 of that Section. So, it is only after the Notification under Section
3 has become effective under sub-section 3, that the latter part of that
Section applies. The language of Section 10(a)(i) is also very cautiously
worded “who is and continues to be a member of such association”.
Therefore, on true interpretation, if a person has been a member but D
does not continue to be a member after declaration, that does not attract
mischief of Section 10. The intention seems to be that not only was he a
member on the day when the association is declared unlawful but he
continues to be a member. The intention is very clear that not only on the
given date but even after that you continue to be a member of that
association which is declared as unlawful association due to unlawful E
activities which is found to be against the interests of sovereignty and
integrity of India. Therefore, once an association is declared unlawful of
whom the concerned person was the member wishes to continue as a
member despite the fact that he is well aware of the fact that such an
association is declared unlawful and if he still wishes to continue being a F
part of such unlawful association it shows a conscious decision on his
part and therefore liable to be penalized for such an act of continuation
of his membership with such unlawful association. Therefore, thereafter
he may not make grievance of chilling effect.
18. In view of the above and for the reasons stated above we hold G
that the view taken by this Court in the cases of State of Kerala vs.
Raneef, (2011) 1 SCC 784; Arup Bhuyan vs. Union of India, (2011)
3 SCC 377 and Sri Indra Das vs. State of Assam 2011 (3) SCC 380
taking the view that under Section 3(5) of Terrorists and Disruptive
Activities (Prevention) Act, 1987 and Section 10(a)(i) of the Unlawful
H
558 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Activities (Prevention) Act, 1967 mere membership of a banned
organization will not incriminate a person unless he resorts to violence or
incites people to violence and does an act intended to create disorder or
disturbance of public peace by resort to violence and reading down the
said provisions to mean that over and above the membership of a banned
organization there must be an overt act and/or further criminal activities
B
and adding the element of mens rea are held to be not a good law. It is
observed and held that when an association is declared unlawful by
notification issued under Section 3 which has become effective of sub-
section 3 of that Section, a person who is and continues to be a member
of such association is liable to be punished with imprisonment for a term
C which may extend to two years, and shall also be liable to fine under
Section 10(a)(i) of the UAPA, 1967.
Any other decisions of the High Court taking a contrary view are
held to be not a good law and are specifically overruled by this Judgment.
Reference is answered accordingly. Consequently, the Review
D applications filed by the Union of India and the State of Assam are hereby
allowed.
Now the main appeals/SLPs be placed before the concerned
Bench for taking of such matters after obtaining the appropriate order
from Hon’ble the Chief Justice.
E

SANJAY KAROL, J.
Table of Contents*
Reference made to this Court .............................................................. 2
F General Development of Article 19 of the Indian Constitution ............ 4
Specifically, Development of Article 19(1)(c) ..................................... 11
Distinction between Indian and American Constitution ...................... 14
Background, import and relevance of decisions of Supreme Court of
G United States relied on in Arup Bhuyan ............................................. 23
Background, import and relevance of decisions of Supreme Court of
United States relied on in Indra Das .................................................. 28
Conclusions ........................................................................................ 36

H *
Ed. Note: Pagination in the Table of Contents is as per the original judgment.
ARUP BHUYAN v. STATE OF ASSAM & ANR. 559
[SANJAY KAROL, J.]

I have perused the erudite opinion proposed by my esteemed A
colleague Hon’ble M.R. Shah, J., with which I concur. It is my further
endeavour to trace the development of law on the issue in India and the
application of the decisions rendered by the Courts in the United States
of America, thereto. My conclusions are as follows:
Reference made to this Court B
1. The present Review Petition arises out of Order of this Court
dated 26.08.2014 in Arup Bhuyan v. State of Assam1 (hereafter referred
to as Reference Order).The operative part of the order is reproduced as
under:
“10. The crux of the matter as submitted by Mr Ranjit Kumar, C
learned Solicitor General for the Union of India, is that when any
provision in Parliamentary legislation is read down, in the absence
of the Union of India it is likely to cause enormous harm to the
interest of the State as in many cases certain provisions have been
engrafted to protect the sovereignty and integrity of India. D
11. The learned Solicitor General would contend that the
authorities which have been placed reliance upon in both the
judgments [Arup Bhuyan v. State of Assam, (2011) 3 SCC
377 : (2011) 1 SCC (Cri) 855], [Indra Das v. State of Assam,
(2011) 3 SCC 380 : (2011) 1 SCC (Cri) 1150] by the two- E
Judge Bench are founded on Bill of Rights which is different
from Article 19 of the Constitution of India. He has referred to
Articles 19(1)(c) and 19(4) of the Constitution. Article 19(1)(c)
reads as follows :
“19. (1)(c) to form associations or unions;” F
The said article is further restricted by Article 19(4) which is
as follows:
“19. (4) Nothing in sub-clause (c) of the said clause shall affect
the operation of any existing law insofar as it imposes, or prevent
the State from making any law imposing, in the interests of the G
sovereignty and integrity of India or public order or morality,
reasonable restrictions on the exercise of the right conferred
by the said sub-clause.”

1
(2015) 12 SCC 702 H
560 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Relying upon the same it is highlighted by the learned Solicitor
General that the Court has not kept this aspect in view while placing
heavy reliance on the foreign authorities which are fundamentally
not applicable to the interpretative process of the provisions which
have been enacted in consonance with the provisions of the
Constitution of India.
B
12. Regard being had to the important issue raised by the learned
Solicitor General and Mr. Jaideep Gupta, learned Senior Counsel,
for the State of Assam, we think it appropriate that the matter
should be considered by a larger bench. Let the registry place the
papers before the Hon’ble Chief Justice of India for appropriate
C orders.”
2. Therefore, the issue which arises for consideration is, whether
the Hon’ble Division Bench in Arup Bhuyan v. State of Assam2 an
similarly in Sri Indra Das v. State of Assam3 (two-Judge Bench) (h
reafter referred to as ‘Arup Bhuyan’ and ‘Indra Das’, respectivel
D )was correct in placing reliance on American decisions stating th
t the decisions apply to India too, “as our fundamental rights are s
milar to the Bill of Rights in the US Constitution” to read down S.
(5) of Terrorist and Disruptive Activities Prevention Act, 1987/S.10
f Unlawful Activities (Prevention) Act, 1967 (hereafter referred to as
E UAPA)? 4
General Development of Article 19 of the Indian
Constitution
3. It is important, at the outset, to reproduce Article 19 of the
Indian Constitution which reads as follows:
F
“19(1) All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
G
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
2
(2011) 3 SCC 377
3
(2011) 3 SCC 380
4
H Arup Bhuyan, Paragraph 12.
ARUP BHUYAN v. STATE OF ASSAM & ANR. 561
[SANJAY KAROL, J.]

(g) to practise any profession, or to carry on any occupation, trade A
or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation
of any existing law, or prevent the State from making any law, in
so far as such law imposes reasonable restrictions on the exercise
of the right conferred by the said sub-clause in the interests of the B
sovereignty and integrity of India,] the security of the State, friendly
relations with foreign States, public order, decency or morality, or
in relation to contempt of court, defamation or incitement to an
offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the C
operation of any existing law in so far as it imposes, or prevent the
State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order, reasonable
restrictions on the exercise of the right conferred by the said
sub-clause.
D
(4) Nothing in sub-clause (c) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent the
State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order or morality,
reasonable restrictions on the exercise of the right conferred by
the said sub-clause…” E

4. At the time of the enactment of the Indian Constitution, as
submitted by the Union of India, Article 19 did not contain ‘reasonable
restrictions’. The words ‘reasonable restrictions’ within Article 19(2)
were introduced by the Constitution (First Amendment) Act, 1951,
which stated in its object and reasons that within the first fifteen months F
of the working of the Constitution certain difficulties were experienced,
particularly, in regard to the chapter on Fundamental Rights and to address
those issues the State was empowered to impose reasonable restrictions
in the interest of general public.
5. This was followed by the Constitution (Sixteenth) G
Amendment Act, 1963, wherein the State was empowered to impose
reasonable restrictions on the freedoms conferred under Article 19,
particularly on the ground of protection of interests of “sovereignty” and
“integrity” of India. In its object and reasons, it was stated that this
Amendment is upon the recommendation of the Committee on National
H
562 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Integration and Regionalism appointed by the National Integration Council
for preservation and maintenance of the integrity and sovereignty of the
Union of India.
6. The interpretation of Article 19 and application of reasonable
restrictions therein has been summarized by this Court in Dharam Dutt
B v. Union of India5 (two-Judge Bench)in the following terms:
“35. The scheme of Article 19 shows that a group of rights are
listed as clauses (a) to (g) and are recognized as fundamental
rights conferred on citizens. All the rights do not stand on a common
pedestal but have varying dimensions and underlying philosophies.
C This is clear from the drafting of clauses (2) to (6) of Article 19.
The framers of the Constitution could have made a common draft
of restrictions which were permissible to be imposed on the
operation of the fundamental rights listed in clause (1), but that
has not been done. The common thread that runs throughout
clauses (2) to (6) is that the operation of any existing law or the
D enactment by the State of any law which imposes reasonable
restrictions to achieve certain objects, is saved; however, the quality
and content of such law would be different by reference to each
of sub-clauses (a) to (g) of clause (1) of Article 19 as can be
tabulated hereunder:
E Article 19
Clause (1) Clauses (2) to (6)
Nature of right Permissible restrictions
By existing law or by law
F made by the State imposing
reasonable restrictions in the
interests of
(a) Freedom of speech (i) the sovereignty and integrity
and expression of India(ii) the security of the
G State(iii) friendly relations with
foreign States(iv) public order,
decency or morality(v) in
relation to contempt of court,

5
H (2004) 1 SCC 712
ARUP BHUYAN v. STATE OF ASSAM & ANR. 563
[SANJAY KAROL, J.]

defamation or incitement to an A
offence
(b) right to assemble (i) the sovereignty and integrity
peaceably and without arms of India
(ii) public order
(c) right to form associations (i) the sovereignty and integrity B
or unions of India
(ii) public order or morality
(d) and (e) right to (i) the general public(ii) the
move freely and/or to reside protection of the interests of C
and settle throughout the Scheduled Tribes
territory of India
(g) right to practise any The general public and in
profession, or to carry particular any law relating to
on any occupation, trade (i) the professional or technical D
or business qualifications necessary for
practising of any profession or
carrying on of any occupation,
trade or business (ii) the
carrying on by the State, or by E
a corporation owned or
controlled by the State, of any
trade, business, industry or
service, whether to the
exclusion, complete or partial, of
F
citizens or otherwise.
36. Article 19 confers fundamental rights on citizens. The rights
conferred by Article 19(1) are not available to and cannot be
claimed by any person who is not and cannot be a citizen of India.
A statutory right — as distinguished from a fundamental right —
conferred on persons or citizens is capable of being deprived of or G
taken away by legislation. The fundamental rights cannot be taken
away by any legislation; a legislation can only impose reasonable
restrictions on the exercise of the right. Out of the several rights
enumerated in clause (1) of Article 19, the right at sub-clause (a)
is not merely a right of speech and expression but a right to freedom H
564 SUPREME COURT REPORTS [2023] 8 S.C.R.

A of speech and expression. The enumeration of other rights is not
by reference to freedom. In the words of the then Chief Justice
Patanjali Sastri in State of W.B. v. Subodh Gopal Bose [AIR
1954 SC 92 : 1954 SCR 587] these rights are great and basic
rights which are recognized and guaranteed as the natural rights,
inherent in the status of a citizen of a free country. Yet, there
B
cannot be any liberty absolute in nature and uncontrolled in operation
so as to confer a right wholly free from any restraint. Had there
been no restraints, the rights and freedoms may tend to become
the synonyms of anarchy and disorder. The founding fathers of
the Constitution, therefore, conditioned the enumerated rights and
C freedoms reasonably and such reasonable restrictions are found
to be enumerated in clauses (2) to (6) of Article 19...”
(Emphasis supplied)
7. While considering the reasonableness of the restrictions imposed
under Article 19(2) to 19(6), a Constitution Bench of this Court in State
D of Madras v. VG Row 6 (five-Judge Bench)observed as under:
“22. This Court had occasion in Khare case [N.B.
Khare v. State of Delhi, 1950 SCR 519 : 1950 SCC 522] to define
the scope of the judicial review under clause (5) of Article 19
where the phrase “imposing reasonable restrictions on the exercise
E of the right” also occurs, and four out of the five Judges participating
in the decision expressed the view (the other Judge leaving the
question open) that both the substantive and the procedural aspects
of the impugned restrictive law should be examined from the point
of view of reasonableness; that is to say, the Court should consider
F not only factors such as the duration and the extent of the
restrictions, but also the circumstances under which and the manner
in which their imposition has been authorised.
23. It is important in this context to bear in mind that the test
of reasonableness, wherever prescribed, should be applied to each
individual statute impugned, and no abstract standard, or general
G
pattern of reasonableness can be laid down as applicable to all
cases. The nature of the right alleged to have been infringed, the
underlying purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, the disproportion
6
H 1952 SCR 597
ARUP BHUYAN v. STATE OF ASSAM & ANR. 565
[SANJAY KAROL, J.]

of the imposition, the prevailing conditions at the time, should all A
enter into the judicial verdict.....”
(Emphasis supplied)
8. Furthermore, laws restricting freedoms under Article 19, must
be under one of the permitted heads of restrictions and must have a
B
proximate link to it. [See: State of Bihar v. Shailabala Devi7 (five-
Judge Bench); O.K. Ghosh and Anr. v. E.X. Joseph8 (five-Judge
Bench) and Shreya Singhal v. Union of India9 (two-Judge Bench)]
9. This development of Article 19 has been encapsulated by a
Constitution Bench of this Court in Kaushal Kishor v. State of U.P. & C
Ors.10 (five-Judge Bench).Justice V. Ramasubramanian has reiterated
that the restrictions under Article 19(2) have been included after detailed
deliberations. Furthermore, after the amendments to the Constitution that
have been discussed herein above, the restrictions “save and enable the
State” to make laws restricting freedoms under the enumerated heads, D
such as, sovereignty and integrity of India, security of the State and
incitement to an offence.11
Specifically, Development of Article 19(1)(c)
10. Article 19(1)(c) guarantees to all citizens the right to form
E
associations which are subject to reasonable restrictions under Article
19(4). These reasonable restrictions are not limited to formation of the
association but extends to effective functioning of the association relating
to lawful objectives. [A.P. Dairy Development Corpn. Federation v.
B. Narasimha Reddy12 (two-Judge Bench)]
F
11. A Constitution Bench of this Court in Raghubar Dayal Jai
Prakash v. Union of India13 (five-Judge Bench), made specific reference
to restrictions imposed by statutes, vis-a-vis Article 19 (1)(c) and observed
as under:
G
7
AIR 1952 SC 329
8
AIR 1963 SC 812
9
(2015) 5 SCC 1
10
2023 SCC Online 6
11
Paragraphs 29 - 31.
12
(2011) 9 SCC 286
13
AIR 1962 SC 263 H
566 SUPREME COURT REPORTS [2023] 8 S.C.R.

A “11. ... An application for the recognition of the association for the
purpose of functioning under the enactment is a voluntary act on
the part of the association and if the statute imposes conditions
subject to which alone recognition could be accorded or continued,
it is a little difficult to see how the freedom to form the association
in affected unless, of course, that freedom implies or involves a
B
guaranteed right to recognition also....”.
12. Furthermore, this Court, while considering the constitutional
validity of the Indian Council of World Affairs Ordinance 2001, in Dharam
Dutt (supra),while tracing the settled legal position, reiterated that
restrictions can be imposed on the right conferred by Article 19(1)(c). It
C
was observed that this right can be subjected to those restrictions which
satisfy the test of Article 19(4) of the Constitution.
13. While adjudicating a case involving the UAPA, in Jamaat-E-
Islami Hind v. Union of India14 (three-Judge Bench), with respect to
restrictions that may be imposed on such a right under Article 19(4) as
D
also the requirements of natural justice, it was observed as under:
“20. ... The scheme under this Act requiring adjudication of the
controversy in this manner makes it implicit that the minimum
requirement of natural justice must be satisfied, to make the
adjudication meaningful. No doubt, the requirement of natural
E justice in a case of this kind must be tailored to safeguard public
interest which must always outweigh every lesser interest. This
is also evident from the fact that the proviso to sub-section (2) of
Section 3 of the Act itself permits the Central Government to
withhold the disclosure of facts which it considers to be against
F the public interest to disclose. Similarly, Rule 3(2) and the proviso
to Rule 5 of the Unlawful Activities (Prevention) Rules, 1968
also permit non-disclosure of confidential documents and
information which the Government considers against the public
interest to disclose.”
G “26. An authorised restriction saved by Article 19(4) on
the freedom conferred by Article 19(1)(c) of the Constitution has
to be reasonable.”
(Emphasis supplied)

H 14
(1995) 1 SCC 428
ARUP BHUYAN v. STATE OF ASSAM & ANR. 567
[SANJAY KAROL, J.]

Distinction between Indian and American Constitution A
14. In view of the above discussion, one now proceeds to consider
the First Amendment of the American Constitution which is extracted as
under:
“Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom B
of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of
grievances.”
15. The contradistinction between the rights created by the First
Amendment of the American Constitution and Article 19 of the Indian C
Constitution is the power given to the State to make laws reasonably
restricting such freedoms in India. Conversely, in the United States of
America, restrictions have been imposed by the Judiciary in instances,
as relied upon in Arup Bhuyan and Indra Das, however no such explicit
power is available with the Legislature.
D
16. This distinction has been enunciated by this Court as well. In
Babulal Parate v. State of Maharashtra15, as submitted by the Union
of India, a Constitution Bench of this Court (five-Judge Bench) while
upholding the constitutional validity of Section 144, Cr.P.C. has held that
whatever may be the position in the United States, the anticipatory action
under S.144, Cr.P.C. is permissible under clauses (2) and (3) of Article E
19, which allow the legislature to make laws placing reasonable restrictions
on the rights conferred by these clauses of Article 19. Importantly, this
Court further observed there is nothing in the American Constitution
corresponding to clauses (2) to (6) of Article 19 of the Indian Constitution.
It was further observed that the framework of the Indian Constitution is
F
different from the American Constitution.
17. The above distinction in Babulal Parate (supra), was reaffirmed
by another Constitution Bench in Madhu Limaye v. Sub-Divisional
Magistrate16 (seven-Judge Bench), wherein this Court while dealing
with the constitutionality of S.144 of the Cr.P.C. and the scope of
restrictions that can be imposed, observed that in America, the First G
Amendment freedoms have no qualifications, as in India and the American
rulings are apt to be misapplied to our Constitution.17
15
(1961) 3 SCR 423
16
(1970) 3 SCC 746
17
Paragraph 17 and 28. H
568 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 18. Furthermore, in Indian Express Newspapers (Bombay)
Pvt. Ltd. and Others v. Union of India and Others18 (three-Judge
Bench), through the pen of E.S Venkatramaiah J., (as his Lordship then
was), observed that:
“44. While examining the constitutionality of a law which is alleged to
B contravene Article 19(1)(a) of the Constitution, we cannot, no doubt,
be solely guided by the decisions of the Supreme Court of the United
States of America. But in order to understand the basic principles of
freedom of speech and expression and the need for that in a
democratic country, we may take them into consideration. The pattern
of Article 19(1)(a) and of Article 19(1)(g) of our Constitution is different
C from the pattern of the First Amendment to the American Constitution
which is in absolute terms. The rights guaranteed under Article 19(1)(a)
and Article 19(1)(g) of the Constitution are to be read along with
clauses (2) and (6) of Article 19, which carve out areas in respect of
which valid legislation can be made.”
D 19. In Union of India v. Naveen Jindal and Another19 (three-
Judge Bench) this Court, while discussing the issue of a citizen’s right to
fly the National Flag, on the issue of Right to freedom of Speech and
Expression, noted the distinction between the Constitution of India and
that of the United States of America. Such a distinction being that in the
USA, the First Amendment gives an absolute right to a citizen of free
E expression, but under Article 19(1)(a), no absolute right is conferred. It
only provides for a qualified right, which is subject to regulatory measures
contained in clause 2 of Article 19.20 This distinction between the Bill of
Rights contained in the American Constitution and the fundamental rights
provided for in the Indian Constitution was also noted in Superintendent,
F Central Prison v. Dr. Ram Manohar Lohia21(five-Judge Bench);
Pathumma v. State of Kerala22 (seven-Judge Bench);M.C. Mehta v.
Union of India23 (Shriram – Oleum Gas) (five-Judge Bench); Ashok
Kumar Thakur v. Union of India24 (two-Judge Bench)and Jayendra
Vishnu Thakur v. State of Maharashtra25 (two-Judge Bench).

G 18
(1985) 1 SCC 641
19
(2004) 2 SCC 510
20
Paragraph 77.
21
(1960) 2 SCR 821
22
(1978) 2 SCC 1
23
(1987) 1 SCC 395
24
(2008) 6 SCC 1
H 25
(2009) 7 SCC 104
ARUP BHUYAN v. STATE OF ASSAM & ANR. 569
[SANJAY KAROL, J.]

20. In Ramlila Maidan Incident, In re, (2012) 5 SCC 1 (two- A
Judge Bench), as submitted by the Union of India, while discussing the
Right to Freedom of Speech and Expression under Article 19, refused to
apply the US case of Schneck v. United States26, which propounded
the doctrine of clear and present danger, stating that it cannot be imported
and applied in India.27 Further, holding that, the right to freedom of speech
B
and expression in India is subject to reasonable restrictions and therefore,
there is a marked distinction in the language of law, its application and
interpretation under the Indian and the US laws.28
21. Shreya Singhal (supra), this Court speaking through R.F.
Nariman, J. highlighted on the differences between the US First
Amendment and Freedom of Speech and Expression under Article C
19(1)(a) read with Article 19(2) in the following words:
“15. It is significant to notice first the differences between the
US First Amendment and Article 19(1)(a) read with Article 19(2).
The first important difference is the absoluteness of the US First
Amendment—Congress shall make no law which abridges the D
freedom of speech. Second, whereas the US First Amendment
speaks of freedom of speech and of the press, without any
reference to “expression”, Article 19(1)(a) speaks of freedom of
speech and expression without any reference to “the press”. Third,
under the US Constitution, speech may be abridged, whereas under E
our Constitution, reasonable restrictions may be imposed. Fourth,
under our Constitution such restrictions have to be in the interest
of eight designated subject-matters— that is, any law seeking to
impose a restriction on the freedom of speech can only pass muster
if it is proximately related to any of the eight subject-matters set
out in Article 19(2).” F

17. So far as the second apparent difference is concerned, the
American Supreme Court has included “expression” as part of
freedom of speech and this Court has included “the press” as
being covered under Article 19(1)(a), so that, as a matter of judicial
interpretation, both the US and India protect the freedom of speech G
and expression as well as press freedom. Insofar as abridgement
and reasonable restrictions are concerned, both the US Supreme
26
249 US 47 (1919)
27
Paragraph 8.
28
Paragraph 9 - 11. H
570 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Court and this Court have held that a restriction in order to be
reasonable must be narrowly tailored or narrowly interpreted so
as to abridge or restrict only what is absolutely necessary. It is
only when it comes to the eight subject-matters that there is a vast
difference. In the US, if there is a compelling necessity to achieve
an important governmental or societal goal, a law abridging freedom
B
of speech may pass muster. But in India, such law cannot pass
muster if it is in the interest of the general public. Such law has to
be covered by one of the eight subject-matters set out under Article
19(2). If it does not, and is outside the pale of Article 19(2), Indian
courts will strike down such law.”
C 18. American judgments have great persuasive value on the content
of freedom of speech and expression and the tests laid down for
its infringement. It is only when it comes to subserving the general
public interest that there is a world of difference.”
(Emphasis Supplied)
D
22. The abovementioned decision in Shreya Singhal (supra), has
been followed recently in Kaushal Kishor (supra) by Justice B.V.
Nagarathna in her erudite concurring opinion while analyzing the freedom
of speech and expression under Article 19.29

E 23. The distinction as noted by this Court in various decisions
between the American Constitution, specifically the First Amendment
therein and Article 19 of the Indian Constitution have been noted
hereinabove.
24. There have been, however, cases where this Court has, taken
F into consideration, judgments of the Supreme Court of the United States
of America. For instance, the Constitution Bench in Express
Newspapers (Pvt.) Limited and Another v. Union of India and
Others30 (five-Judge Bench) wherein the constitutionality of the Working
Journalists (Conditions of Service) and Miscellaneous Provisions Act,
1955 was in question.
G
Justice N.H. Bhagwati writing for the Court, observed, that since
Article 19(1)(a) of our Constitution is based on the First Amendment of
the American Constitution, it would be “legitimate and proper” to refer to

29
Paragraph 202(iii) & 203.
30
H (1959) SCR 12
ARUP BHUYAN v. STATE OF ASSAM & ANR. 571
[SANJAY KAROL, J.]

the decisions of the Supreme Court of the United States “in order to A
appreciate the true nature, scope and extent of this right”. This observation
comes in addition to and despite having taken note of the warnings issued
in State of Travancore – Cochin and Others v. Bombay Co. Ltd31
(five-Judge Bench) and State of Bombay v. R.M.D. Chamarbaugwala32
(five-Judge Bench). This was, however, after having duly recognized
B
the “paucity of authority in India on the nature, scope and extent of this
fundamental right of freedom of speech and expression enshrined under
article 19(1)(a) of the Constitution”, at that point in time.
25. This observation of Justice N.H. Bhagwati has been further
followed in Reliance Petrochemicals Ltd. v. Proprietors of Indian
Express Newspapers, Bombay Pvt. Ltd. and Ors.33 (two-Judge C
Bench) wherein the effect of Article 19 on the freedom of press was in
question.34 The court while making reference to US and UK decisions in
Nebraska Press Association v. Hugh Stuart35, John D. Pennekamo
v. State of Florida36 and Attorney General v. British Broadcasting
Corporation37, held that there was no reason for the injunction in question, D
to continue.38
26. In R.K. Garg v. Union of India39 (five-Judge Bench), a
Constitution Bench, placed reliance on the Supreme Court of United
States decisions in Morey v. Doud40 and Secy. of Agriculture v. Central
Roig Refining Co.41 to hold that the courts cannot be converted into E
tribunals for relief from inequalities in economic legislations.42
27. An observation by Lord Denning in Ghani v. Jones43 quoted
with approval in Maneka Gandhi v. Union of India44 (seven-Judge
Bench), is worth reproducing herein. It reads, “a man’s liberty of
31
1952 SCR 1112
F
32
1957 SCR 874
33
(1988) 4 SCC 592
34
Paragraph 10.
35
427 US 539
36
(1945) 90 L Ed 331
37
(1979) 3 All ER 45 G
38
Paragraph 20 - 22, 38.
39
(1981) 4 SCC 675
40
354 US 457 (1957)
41
338 US 604 (1949)
42
Paragraph 8.
43
(1970) 1 QB 693
44
(1978) 1 SCC 248 H
572 SUPREME COURT REPORTS [2023] 8 S.C.R.

A movement is regarded so highly by the law of England that it is not
to be hindered or prevented except on surest grounds”. It is then, by
extension, without a shadow of doubt, a sure ground for the restriction of
liberty, in the present case of association, if the legislature, after following
procedure established by law, found appropriate reasons to restrict such
right, in particular, with banned organizations.
B
28. The purpose of delving into both nature of decisions, where
judgments of the United States Supreme Court have and have not been
relied on, is to demonstrate that in certain cases reference to those
judgments is justified. Such reference though, needless to say, has to be
appreciated in the light of our own constitutional, legislative as well as
C
judicial, historic perspective. They cannot, as was done in the Arup
Bhuyan and Indra Das referred to this bench, form the sole basis for
the conclusion arrived at.
29. In the aforesaid backdrop, in order to answer the reference, it
is essential to appreciate the decisions relied upon in the two decisions,
D
namely, Arup Bhuyan and Indra Das. It is only subsequent to having
appreciated these decisions that we may examine effectively, their
application to the scenario before us.
Background, import and relevance of decisions of Supreme
Court of United States relied on in Arup Bhuyan
E
30. In Arup Bhayan, the learned bench of two judges placed
reliance on American decisions in Elfbrandt v. Russel45, Clarence
Brandenberg v. State of Ohio46 and United States v. Eugene Frank
Robel47 wherein the doctrine of ‘guilt by association’ has been rejected.
The court observed that the abovementioned judgments apply to India
F
too, since the fundamental rights in India are similar to the Bill of Rights
in the U.S. Constitution. Furthermore, this court while setting aside the
conviction of the appellant under S.3(5) TADA observed:
“12. In our opinion, Section 3(5) cannot be read literally otherwise
it will violate Articles 19 and 21 of the Constitution. It has to be
G
read in the light of our observations made above. Hence, mere
membership of a banned organisation will not make a person a

45
384 U.S. 17 (1966)
46
395 U.S. 444 (1969)
47
H 389 U.S. 258 (1967)
ARUP BHUYAN v. STATE OF ASSAM & ANR. 573
[SANJAY KAROL, J.]

criminal unless he resorts to violence or incites people to violence A
or creates public disorder by violence or incitement to violence.”
31. Reliance was placed on the decision of this court in State of
Kerela v. Raneef48 (two-Judge Bench), wherein Justice Katju, while
upholding the order granting bail to the Respondent, placed reliance on
US Supreme Court decisions such as Elfbrandt (supra) which has B
rejected the doctrine of “guilt of association”.
32. In Elfbrandt (supra), the constitutionality of the Arizona Act
was in question which required all state employees to take oath. Under
the oath, an employee is subject to prosecution for perjury and discharge
from office if he “knowingly and willfully becomes or remains a C
member of the communist party of the United States or its
successors or any of its subordinate organizations’’ or “any other
organization” having for “one of its purposes”, the overthrow of the state
government, where the employee had knowledge of such unlawful
purpose. It was held that those who join an organization but do not share
its unlawful purposes and who do not participate in its unlawful activities D
surely pose no threat. This Act threatens the cherished freedom of
association protected by the First Amendment, made applicable to the
States through the Fourteenth Amendment.
33. In Clarence Brandenberg v. State of Ohio 49, the Appellant
was convicted under the Ohio Criminal Syndicalism statute for: E

(i) ‘advocating … the duty, necessity, or propriety of crime,
sabotage, violence, or unlawful methods of terrorism as a
means of accomplishing industrial or political reform’ and
(ii) for ‘voluntarily assembling with any society, group, or F
assemblage of persons formed to teach or advocate the
doctrines of criminal syndicalism.’
The Supreme Court of the United States of America, while
reversing the conviction, held that Ohio’s Criminal Syndicalism Act cannot
be sustained. The Act punishes persons who ‘advocate or teach the
G
duty, necessity, or propriety’ of violence ‘as a means of accomplishing
industrial or political reform’; or who publish or circulate or display any
book or paper containing such advocacy; or who ‘justify’ the commission

48
(2011) 1 SCC 784
49
395 U.S. 444 (1969) H
574 SUPREME COURT REPORTS [2023] 8 S.C.R.

A of violent acts ‘with intent to exemplify, spread or advocate the propriety
of the doctrines of criminal syndicalism’; or who ‘voluntarily assemble’
with a group formed ‘to teach or advocate the doctrines of criminal
syndicalism.’ Neither the indictment nor the trial judge’s instructions to
the jury in any way refined the statute’s bald definition of the crime in
B terms of mere advocacy not distinguished from incitement to imminent
lawless action. Furthermore, it held that the Constitutional guarantees of
free speech and free press do not permit a State to forbid or proscribe
advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and
is likely to incite or produce such action.
C
34. In United States v. Eugene Frank Robel 50 , the
constitutionality of S. 5(a)(1)(D) of the Subversive Activities Control Act
of 1950, was drawn into question before the Supreme Court of the United
States of America. S.5(a)(1)(D) of the Act provided that, when a
D Communist-action organization is under a final order to register, it shall
be unlawful for any member of the organization ‘to engage in any
employment in any defense facility.’ In this case, the appellee was indicted
since he was a member of the Communist Party and was employed at
Todd Shipyards Corporation, which was designated as a ‘defense facility.’
The Court declared S.5(a)(1)(D) as unconstitutional and held that:
E
“It is precisely because that statute sweeps indiscriminately
across all types of association with Communist-action groups,
without regard to the quality and degree of membership, that it
runs afoul of the First Amendment.”
F Background, import and relevance of decisions of Supreme
Court of United States relied on in Indra Das
35. In Indra Das, the learned bench of two Judges relied on and
followed its earlier judgment in Arup Bhuyan and while similarly relying
on the American decisions discussed henceforth, it was held that S.3(5)
G of TADA/S.10 of UAPA have to be read down to bring them in
consonance with the Constitution.
36. Reliance was placed on Elfbrandt (supra),as discussed above.

50
389 U.S. 258 (1967)
H
ARUP BHUYAN v. STATE OF ASSAM & ANR. 575
[SANJAY KAROL, J.]

37. The learned division bench relied on Scales v. United States51, A
to make a distinction between an active and a passive member of an
organization. In this case, the Petitioner’s conviction under the Smith
Act came in review before the Supreme Court of the United States of
America. This act, made a felony “the acquisition or holding of knowing
membership in any organization which advocates the overthrow of the B
Government of the United States by force of violence.” Further, the Court,
while overruling the Petitioner’s constitutional challenge observed that:
“The clause does not make criminal all association with an
organization which has been shown to engage in illegal advocacy.
There must be clear proof that a defendant “specifically intends to
C
accomplish the aims of the organization by resort to violence.”
Thus, the member for whom the organization is a vehicle for the
advancement of legitimate aims and policies does not fall within
the ban of the statute: he lacks the requisite specific intent ‘to
bring about the overthrow of the government as speedily as
D
circumstances would permit.’ Such a person may be foolish,
deluded, or perhaps merely optimistic, but he is not by this statute
made a criminal.”
38. In Noto v. United States52, the Petitioner was convicted of
violating the membership clause of the Smith Act, which makes a felony
the acquisition or holding of membership in any organization which E
advocates the overthrow of the Government of the United States by
force or violence, knowing the purpose thereof. The Supreme Court
observed that There must be some substantial direct or circumstantial
evidence of a call to violence now or in the future which is both sufficiently
strong and sufficiently pervasive to lend color to the otherwise ambiguous F
theoretical material regarding Communist Party teaching.
In this backdrop, it was held that the conviction of the Petitioner is
being reversed because the Government has failed to produce evidence
the Court believes sufficient to prove that the Communist Party presently
advocates the overthrow of the Government by force. G
39. Reliance was placed on the dissenting opinion of Justice
Hugo Black in Communist Party v. Subversive Activities Control

51
367 US 203 (1960)
52
367 US 290 (1960) H
576 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Board53. In this case, the registration of the Communist Party of the
United States since it was a “Communist action organization,” under the
Subversive Activities Control Act of 1950 was brought into question. Justice
Hugo Black observed that: “I do not believe that it can be too often repeated
that the freedoms of speech, press, petition and assembly guaranteed by
the First Amendment must be accorded to the ideas we hate or sooner or
B
later they will be denied to the ideas we cherish. The first banning of an
association because it advocates hated ideas — whether that association
be called a political party or not — marks a fateful moment in the history of
a free country. That moment seems to have arrived for this country.”
40. In Joint Anti-Fascist Refugee Committee v. McGrath54,
C
the Petitioner organisations were included by the Attorney General as
Communist, without hearing and furnished by him to the Loyalty Review
Board of the United States Civil Service Commission. The court, while
recognising that the Attorney General had no power to do so, remanded
the matter back to the district court. It was observed that:
D
“In days of great tension, when feelings run high, it is a temptation
to take shortcuts by borrowing from the totalitarian techniques of
our opponents. But when we do, we set in motion a subversive
influence of our own design that destroys us from within.”

E 41. In Keyishian v. Board of Regents of New York55, the
Supreme Court of the United States of America, struck down a law
which authorized the board of regents to prepare a list of subversive
organizations and to deny jobs to teachers belonging to those organizations.
The law made membership in the Communist Party prima facie evidence
for disqualification from employment. Mr. Justice Brennan, speaking for
F the Court held that, penalizing mere knowing membership, without a
specific intent to further the unlawful aims of an organization, is not a
constitutionally adequate basis for exclusion from such positions as those
held by appellants.
42. In Yates v. U.S.56, the Petitioners were members of the
G Communist Party in California and were indicted under the Smith Act,
charging them with conspiring (1) to advocate and teach the duty and
56
354 US 298 (1957)
53
367 US 1 (1961)
54
341 US 123, 174 (1951)
55
H 385 US 589 1966
ARUP BHUYAN v. STATE OF ASSAM & ANR. 577
[SANJAY KAROL, J.]

necessity of overthrowing the Government of the United States by force A
and violence, and (2) to organize, as the Communist Party of the United
States, a society of persons who so advocate and teach, all with the
intent of causing the overthrow of the Government by force. While
reversing the conviction of the Petitioners, the Supreme Court observed
that the district court failed to distinguish between advocacy of forcible
B
overthrow and advocacy of action, by holding that advocacy of violent
action at some future time was enough.
43. Reliance was placed on Clarence Brandenberg (supra), as
discussed above.
44. In Whitney v. California57, the question which arose was C
whether the petitioner, who joined and assisted in the organization of a
Communist Labor Party contravening the California Criminal Syndicalism
Act, did so with knowledge of its unlawful character and purpose. The
Supreme Court of the United States of America, while upholding the
constitutionality of the abovementioned act, observed that the freedom
of speech which is secured by the Constitution does not confer an absolute D
right to speak, without responsibility. Furthermore, although the rights of
free speech and assembly are fundamental, they are not, in their nature,
absolute.
In Indra Das, reliance was placed on the concurring opinion of Mr.
Justice Brandeis wherein he observed that fear of serious injury cannot E
alone justify suppression of free speech and assembly. It is the function of
speech to free men from the bondage of irrational fears. To justify
suppression of free speech, there must be reasonable ground to fear that
serious evil will result if free speech is practiced. There must be reasonable
ground to believe that the danger apprehended is imminent. There must be F
reasonable ground to believe that the evil to be prevented is a serious one.
45. Reliance was placed on the dissenting opinion of Mr. Justice
Holmes in Gitlow v. New York58. In this case, the appellant was a
member of the Left-Wing Section of the Socialist Party. He was indicted
for advocating the overthrow and upending of the organized government. G
The majority opinion reiterated that it is a fundamental principle, long
established, that the freedom of speech and of the press which is secured
by the Constitution does not confer an absolute right to speak or publish,
57
274 US 357 (1926)
58
268 US 652 (1925) H
578 SUPREME COURT REPORTS [2023] 8 S.C.R.

A without responsibility. a State may punish utterances endangering the
foundations of organized government and threatening its overthrow by
unlawful means. These imperil its own existence as a constitutional State.
Freedom of speech and press does not protect disturbances to the public
peace or the attempt to subvert the government. The constitutionality of
the statute and conviction of the appellant was upheld. Justice Holmes
B
observed that:
“It is manifest that there was no present danger of an attempt
to overthrow the government by force on the part of the admittedly
small minority who shared the defendant’s views. It is said that
this manifesto was more than a theory, that it was an incitement.
C Every idea is an incitement.
If the publication of this document had been laid as an attempt
to induce an uprising against government at once, and not at some
indefinite time in the future, it would have presented a different
question. …. but the indictment alleges the publication, and nothing
D more.”
46. In Terminiello v. Chicago59, the Petitioner was charged with
violation of an ordinance forbidding any “breach of the peace”.While
reversing his conviction, the Supreme Court of the United States of
America held that a function of free speech under our system of
E government is to invite dispute. It may indeed best serve its high purpose
when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger. The Court observed
that “..speech is often provocative and challenging.”
47. In De Jonge v. Oregon60, the Appellant was charged on the
F basis that he assisted in the conduct of a meeting which was called under
the auspices of the Communist Party, an organization advocating criminal
syndicalism. The Supreme Court of the United States of America while
considering the Criminal Syndicalism Law of Oregon held that “none of
our decisions goes to the length of sustaining such a curtailment of the
G right of free speech and assembly as the Oregon statute demands in its
present application.” Reliance was placed on the abovementioned
decisions in Gitlow (supra) and Whitney (supra).
59
337 US 1 (1948)
60
299 US 353 (1936)
H
ARUP BHUYAN v. STATE OF ASSAM & ANR. 579
[SANJAY KAROL, J.]

Conclusions A
48. The abovementioned decisions are in contradistinction to the
scenario in question in India. The American decisions primarily involve
indictment on the basis of membership of political organizations or incidents
of free speech advocating overthrow of the government. However, under
Indian law, it is not membership of political organizations etc. or free B
speech or criticism of the government that is sought to be banned, it is
only those organizations which aim to compromise the sovereignty and
integrity of India and have been notified to be such and unlawful, whose
membership is prohibited. This is in furtherance of the objective of the
UAPA, which has been enacted to provide for the more effective
prevention of certain unlawful activities of individuals and associations C
and dealing with terrorist activitiesand for matters connected therewith.
The distinction, therefore, is clear.
49. Furthermore, the UAPA provides for a system of checks &
balances and public notification for any association being declared
unlawful: D
• S.3 of the Act, states that the Central Government must
publish a notification declaring an unlawful association in
the Official Gazette and Daily Newspaper in the State in
which the principal office of the association affected is
situated. Furthermore, the Association must be notified by E
affixing a copy on its office or by serving its office bearers
or by means of loudspeakers.
• Under S.4 of the Act, any notification under S.3 of the Act,
shall be adjudicated upon by the Tribunal for the purpose of
whether or not there is sufficient cause for declaring the
F
association unlawful. In this adjudication, the association is
given an opportunity to be heard. S.5 provides for setting up
this UAPA Tribunal, to which no person shall be appointed
unless he is a Judge of a High Court.
• Under S.10 of the Act, which may be termed as the genesis
if the present controversy to be adjudicated upon, in my G
understanding is forthcoming in its meaning. “Is and continues
to be” implies that a person, even after the organization
being so notified as unlawful, is and continues to be a
member, would attract penalty under the said section. The
use of the conjunction “and’’ means that both of the H
580 SUPREME COURT REPORTS [2023] 8 S.C.R.

A abovementioned conditions have to be satisfied. [Hyderabad
Asbestos Cement Products and Anr. v. Union of India
and Ors.61, (three-Judge Bench)]
It is important to reiterate, that the above observations have been
made in light of and for application to the present reference.
B 50.Importantly, Shreya Singhal (supra) captures the situation in
regards the use of judgments of the Supreme Court of the United States
of America aptly to say that those judgments are of “great persuasive
value” but it also notes that there is “a world of difference” between the
American and Indian scenario, so far as, subserving public interest is
C concerned. It is this difference which seemed to have escaped the learned
division bench’s attention in Arup Bhyan and Indra Das.
51.As recorded by the Constitution (First Amendment) Act, 1951,
issues in the functioning and implementation of such rights were being
faced right from the start and so the law-making authority, in order to
ensure smooth functioning of law. This Court cannot be oblivious to such
D
fact. The vast, varied and scholarly jurisprudence developed by this court
has been in view of these clauses within Article 19. Now, at this juncture,
seven decades thence, in my view a stand of whichever court, cannot be
allowed to stand if it is in ignorance of constitutional provisions. I may
hasten to add that neither I, or this bench, nor any other court would hold
E otherwise to state that influences or even borrowing from other
constitutions has not taken place in the formation of our constitution, but,
it is equally and ever so more important to note, that the development
thereof has been done in specific context of the situations and conditions
prevalent in India.
F 52. In light of the above, I may conclude that placing reliance
therefore, on decisions rendered in a distinct scenario as well as a
demonstrably different constitutional position, that too almost singularly,
especially in cases which involve considerations of national security and
sovereignty, was not justified.
53. The reference is answered in the above terms.
G

Bibhuti Bhushan Bose Reference answered.
(Assisted by : Abhishek Agnihotri and Shubhanshu Das, LCRAs)

61
H (2000) 1 SCC 426