Supreme Court of India
SRI INDRA DASversusSTATE OF ASSAM
- Citation
- 2011 INSC 114
- Decided
- 10 February 2011
- Disposal
- Appeal(s) allowed
- Bench
- MARKANDEY KATJU
Holding
Mere membership of a banned organization does not attract criminal liability under TADA s.3(5) unless accompanied by acts of violence or incitement, and a confession without corroboration is insufficient for conviction.
Summary
The appellant, Sri Indra Das, was convicted under Section 3(5) of the Terrorist and Disruptive Activities (Prevention) Act (TADA) for alleged membership in the banned ULFA organization, based solely on a confession to a police officer that was later retracted and uncorroborated. The Supreme Court held that a confession made to police is a weak form of evidence and cannot support a conviction without independent corroboration. It further ruled that mere membership in a banned organization does not constitute an offence unless the person is shown to have engaged in, incited, or intended imminent violence, and that TADA’s provision criminalising mere membership must be read down to conform with Articles 19 and 21 of the Constitution. Consequently, the conviction was set aside and the appeal allowed.
Issues considered
- Whether a conviction under TADA s.3(5) for mere membership of a banned organization is valid without proof of violent acts or incitement.
- Whether a confession to police, later retracted and uncorroborated, can alone sustain a conviction.
- Whether the provision of TADA s.3(5) (and similar statutes) violates fundamental rights under Articles 19 and 21 and requires a reading down.
- Whether the appellate court should uphold or overturn the conviction.
Legislation cited
- Constitution of Indias. Article 19, s. Article 21
- Terrorist and Disruptive Activities (Prevention) Act, 1987s. 3(5)
- Unlawful Activities (Prevention) Act, 1967s. 10
Subjects
membership of banned organizationTADAconfessioncorroborationfundamental rightsArticle 19Article 21statutory interpretationreading downfreedom of associationcriminal law
Judgment
• [2011) 4 S.C.R. 289
SRI INDRA DAS A
V.
STATE OF ASSAM
(Criminal Appeal No. 1383 of 2007)
FEBRUARY 10, 2011
B
[MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.)
Terrorist and Disruptive Activities (Prevention) Act, 1.987
- s.3(5) - Membership of banned organisation - Conviction
of appellant u/s.3(5) - Sustainability - Held: Mere C
membership of a banned organization cannot incriminate a
person unless he is proved to have resorted to acts of violence
or incited people to imminent violence, or did an act intended
to create disorder or disturbance of public peace by resort to
imminent violence - In the present case, even assuming that D
accused-appellant was a member of ULFA- a banned
organization, there was no evidence to show that he did acts
of the nature above mentioned - Thus, rwen if he was a
member of ULFA it was not proved that he was an active
member and not merely a passive member - Further, the E
provisions in various statutes i.e. 3 (5) of TADA or s.10 of the
Unlawful Activities (Prevention) which on their plain language
make mere membership of a banned organization criminal,
have to be read down and one has to depart from the literal
rule of interpretation in such cases, otherwise these provisions F
will become unconstitutional as violative of Articles 19 and 21
of the Constitution - Conviction of appellant accordingly set
aside - Constitution of India, 1950 - Articles 19 and 21.
Interpretation of Statutes - Reading down of a statute -
Held: The Constitution is the highest Jaw of the land and no G
statute can violate it - If there is a statute which appears to
violate it, one can either declare it unconstitutional or read it
down to make it constitutional - The first attempt of the Court
289 H
290 SUPREME COURT REPORTS [2011] 4 S.C.R.
A should be try to sustain the validity of the statute by reading
it down.
Interpretation of Statutes - ~tatute violating fundamental
rights - Held: Statutory provisions cannot be read in isolation,
8 but should be read in consonance with fundamental rights
guaranteed by Constitution.
Evidence - Confession - Nature of - Held: It is a very
weak type of evidence, particularly when alleged to have been
made to the police, and it is not safe to convict on its basis
C unless there is adequate corroborative material.
Five persons including the appellant were charged
for the death of a person. The only evidence against the
appellant was the alleged confession made by him to a
D police officer. The said alleged confession was, however,
subsequently retracted by the appellant and was not
corroborated by any other material. The appellant was
alleged to be a member of ULFA, a banned organisation,
and convicted under Section 3(5) of the Terrorist and
E Disruptive Activities (Prevention) Act, 1987 which makes
mere membership of a banned organisation a criminal
act, and sentenced to five years rigorous imprisonment.
The conviction of the appellant was challenged in the
instant appeal.
F Allowing the appeal, the Court
HELD:1. Confession is a very weak type of evidence,
particularly when alleged to have been made to the police,
and it is not safe to convict on its basis unless there is
G adequate corroborative material. In the present case
.there is no corroborative material. (Para 5) (296-E]
2. In Arup Bhuyan's case, it was held that mere
membership of a banned organization cannot incriminate
a person unless he is proved to have resorted to acts of
H
SRI INDRA DAS v. STATE OF ASSAM 291
violence or incited people to imminent violence, or does A
an act intended to create disorder or disturbance of
public peace by resort to imminent violence. In the
present case, even assuming that the appellant was a
member of ULFA which is a banned organization, there
is no evidence to show that he did acts of the nature B
above mentioned. Thus, even if he was a member of
ULFA it has not been proved that he was an active
member and not merely a passive member. Hence the
decision in Arup Bhuyan's case squarely applies in this
case. [Para 7] (296-G-H; 297-A-B] c
Arup Bhuyan vs. State of Assam; decision dated 3-2·
2011 of Supreme Court in Criminal Appeal No.889 of 2007
- held applicable.
State of Kera/a vs. Raneef, 2011 (1) SCALE 8 - referred D
to.
Elfbrandt vs. Russell 384 US 17(1966); Schneiderman
vs. U.S. 320 US 118(136); Sch ware vs. Board of Bar
Examiners 353 US 232(246); Sea/es vs. U.S. 367 US 203 E
(229); Apthekar vs. Secretary of State 378 US 500; Baggett
vs. Bil/it 377 US 360; Cramp vs. Board of Public Instructions
368 US 278; Gibson vs. Florida 372 US 539; Noto vs. U.S.
367 US 290(297-298); Communist Party vs. Subversive
Activities Control Board 367 US 1 (1961); Joint Anti-Fascist F
Refugee Committee vs. McGrath 341 US 123, 174 (1951);
Keyishian vs. Board of Regents of the University of the State
of New York 385 US 589, 606 (1967); Yates vs. U.S., 354 US
298 (1957); Brandenburg vs. Ohio 395 US 444(1969);
Whitney vs. California 274 US 357 (1927); Git/ow vs. New
York 268 US 652 (1925); Terminiello vs. Chicago 337 US 1 G
(1949); DeJonge vs. Oregon, 299 US 353 (1937); Abrams vs.
U.S. 250 US 616 (1919) - referred to.
3.1. Though it was submitted by the counsel for the
Government before the TADA Court that under many laws H
292 SUPREME COURT REPORTS [2011] 4 S.C.R.
A mere membership of an organization is illegal e.g. Section
3(5) of Terrorists and Disruptive Activities, 1989, Section
10 of the Unlawful Activities (Prevention ) Act 1967, etc,
but in the opinion of this Court these statutory provisions
cannot be read in isolation, but have to be read in
B consonance with the Fundamental Rights guaranteed by
Constitution. [Para 26] [304-G-H; 305-A]
3.2. 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 one can either declare it
C unconstitutional or one can read it down to make it
constitutional. The first attempt of the Court should be try
to sustain the validity of the statute by reading it down.
[Para 27] [305-B]
D 3.3. The provisions in various statutes i.e. 3 (5) of
TADA or Section 10 of the Unlawful Activities (Prevention)
which on their plain language make mere membership of
a banned organization criminal have to be read down and
one has to depart from the literal rule of interpretation in
E such cases, otherwise these provisions will become
unconstitutional as violative of Articles 19 and 21 of the
Constitution. It is true that ordinarily one should follow
the literal rule of interpretation while construing a
statutory provision, but if the literal interpretation makes
F the provision unconstitutional one can depart from it so
that the provision becomes constitutional. [Para 31] [306-
C-E]
3.4. Every effort should be made by the Court to try
to uphold the validity of the statute, as invalidating a
G statute is a grave step. Hence one may sometimes have
to read down a statute in order to make it constitutional.
[Para 32] [306-F]
3.5. There were Constitutions in India even under
H British Rule e.g. the Government of India Act, 1935, and
SRI INDRA DAS v. STATE OF ASSAM 293
the earlier Government of India Acts. These Constitutions, A
however, did not have fundamental right guaranteed to
the people. In sharp contrast to these is the Constitution
of 1950 which has fundamental rights in Part Ill. These
fundamental rights are largely on the pattern of the Bill
of Rights to the U.S. Constitution. [Para 42] [310-C) B
3.6. 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) Act. But C
since there is a Constitution in India providing for
democracy and Fundamental Rights one cannot give
these statutory provisions such a meaning as that would
make them unconstitutional. [Para 43] [310-D-E]
Kedar Nath Singh vs. State of Bihar AIR 1962 SC 955; D
Government of Andhra Pradesh vs. P. Laxmi Devi 2008(4)
SCC 720; Sunil Batra vs. Delhi Administration AIR 1978 SC
1675; New India ;;Sugar Mtf!s vs. Commissioner of Sales Tax
AIR 1963 SC 1207; Githa Hariharan vs. Reserve Bank of
India AIR 1999 SC 1149; Govindlalji vs. State of Rajasthan E
AIR 1963 SC 1638; R.L. Arora ys." State of UP. AIR 1964 SC
1230; Indian Oil Corporation vs. Municipal Corporation AIR
1993 SC 844; BR Enterprises vs. State of UP. AIR 1999 SC
1867; State of Maharashtra & Ors. vs. Bhaurao Punjabrao
Gawande (2008) 3 SCC 613; M. Nagaraj & Ors. vs. Union of F
India &Ors. (2006) 8 SCC 212; l.R. Coelho (dead) By LRs.
vs. State of T.N. (2007) 2 sec 1 - relied on.
Bal Gangadhar Tilak vs. Queen Empress ILR 22 Born
528 (PC); Annie Besant vs. A-G of Madras AIR 1919 PC 31;
Emperor vs. Sadasiv Narain AIR 1947 PC 84; Niharendra G
Dutta vs. Emperor AIR 1942 FC 22 - referred to.
·Case Law Reference:
2011 (1) Scale 8 referred to . Para 8 ·
H
294 SUPREME COURT REPORTS [2011] 4 S.C.R.
e
A 384 us 17(1966) referred to Para 8
320 us 118(136) referred to Para 10
353 us 232(246) referred to Para 10
367 us 203 (229) referred to Para 10, 11
B
378 us 500 referred to Para 12
377 us 360 referred to Para 10
368 us 278 referred to Para 12
c
372 us 539 referred to Para 12
367 us 290(297-298) referred to Para 13, 14
367 us 1 (1961) referred to Para 15
D 341 US 123, 174 (1951) referred to Para 16
385 US 589, 606 (1967) referred to Para 17
354 us 298 (1957) referred to Para 18
E 395 us 444(1969) referred to Para 19
274 us 357 (1927) referred to Para 19, 20
268 us 652 (1925) referred to Para 22
337 us 1 (1949) referred to Para 23
F
299 us 353 (1937) referred to Para 24
250 us 616 (1919) referred to Para 25
2008(4) sec 120 relied on Para 27, 32
G
AIR 1962 SC 955 relied on Para 28,
29,30
ILR 22 Born 528 (PC) referred to Para 34
AIR 1919 PC 31 referred to Para 34
H
• SRI INDRA DAS v. STATE OF ASSAM
AIR 1947 PC 84 referred to Para 34
295
A
AIR 1942 FC 22 referred to Para 34
AIR 1978 SC 1675 relied on Para 35
AIR 1963 SC 1207 relied on Para 36
B
AIR 1999 SC 1149 relied on Para 37
AIR 1963 SC 1638 relied on Para 38
AIR 1964 SC 1230 relied on Para 39
c
AIR 1993 SC 844 relied on Para 40
AIR 1999 SC 1867 relied on Para 41
(2008) 3 sec 613 relied on Para 44
(2006) 8 sec 212 relied on Para 44 D
(2001) 2 sec 1 relied on Para 44
CRIMINALAPPELATE JURISDICTION: Criminal Appeal
No. 1383 of 2007.
E
From the Judgment & Order dated 13.8.2007 of the
Designated Court Assam, Guahati in TADA Session Case No.
22 of 1999.
Bikash Kar Gupta (for Abhijit Sengupta) for the Appellant. F
The Judgment of the Court was delivered by
MARKANDEY KATJU, J. 1. Heard learned counsel for
the appellant. Service of Notice of Lodgment of petition of
Appeal is complete, but no one has entered appearance on G
behalf of the sole respondent-State.
2. The facts of the case are similar to the facts in Arup
Bhuyan vs. State of Assam Criminal Appeal No.889 of 2007,
which we allowed on 3.2.2011.
H
296 SUPREME COURT REPORTS [2011) 4 S.C.R. •
A 3. As in the case of Arup Bhuyan (supra), the only
evidence against the appellant in this case is his alleged
confession made to a police officer, for which he was charged
under the Terrorist and Disruptive Activities (Prevention) Act,
1987 (in short 'TADA').
B
4. The facts of the case are that one Anil Kumar Das went
missing from the evening of 6.11.1991, and his dead body was
recovered after two months on 19.1.1992 from the river
Dishang. Five persons including the appellant were charged for
his death. The appellant was not named in the FIR. No
C prosecution witness has attributed any role to the appellant. The
charge sheet in the case was filed after a gap of nine years
from the date of the commission of the offence, and charges
were framed more than four years after filing of the charge
sheet. There is no evidence against the appellant except the
D confessional statement.
5. The alleged confession was subsequently retracted by
the appellant. The alleged confession was not corroborated by
any other material. We have held in Arup Bhuyan's case
E (supra) that confession is a very weak type of evidence,
particularly when alleged to have been made to the police, and
it is not safe to convict on its basis unless there is adequate
corroborative material. In the present case there is no
corroborative material.
F
6. However, the appellant has been convicted under
Section 3(5) of TADA which makes mere membership of a
banned organization a criminal act, and sentenced to five years
rigorous imprisonment and Rs.2000/- fine.
G 7. In Arup Bhuyan's case (supra) we have stated that
mere membership of a banned organization cannot incriminate
a person unless he is proved to have resorted to acts of violence
or incited people to imminent violence, or does an act intended
to create disorder or disturbance of public peace by resort to
H
SRI INDRA DAS v. STATE OF ASSAM 297
[MARKANDEY KATJU, J.]
imminent violence. In the present case, even assuming that the A
appellant was a member of ULFA which is a banned
organization, there is no evidence to show that he did acts of
the nature above mentioned. Thus, even if hewas a member
of ULFA it has not been proved that he was an active member
and not merely a passive member. Hence the decision in Arup B
Bhuyan's case (supra) squarely applies in this case.
8. In our judgment in State of Kera/a vs. Raneef 2011 (1)
Scale 8 we had referred to the judgment of the U.S. Supreme
Court in Elfbrandt vs. Russe/1384 US 17(1966) which rejected C
the doctrine of 'guilt by association'.
9. In Elfbrandt's case (supra) Mr. Justice Douglas,
speaking for the Court observed :
"Those who join an organization but do not share its 0
unlawful purposes and who do not participate in its unlawful
activities surely pose no threat. This Act threatens the
cherished freedom of association protected by the First
Amendment, made applicable to the States by the
Fourteenth Amendment. ......... A law which applies to E
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."
10. The decision relied on its earlier judgments in F
Schneiderman vs. U.S. 320 US 118(136) and Schware vs.
Board of Bar Examiners 353 US 232(246). The judgment in
Elfbrandt's case (supra) also referred to the decision of the
U.S. Supreme Court in Scales vs. U.S. 367 US 203 (229)
which made a distinction between an active and a passive G
member of an organization.
11. In Scales case (supra) Mr. Justice Harlan of the U.S.
Supreme Court ,observed :
H
298 SUPREME COURT REPORTS [2011] 4 £.C.R. •
A "The clause (in the McCarran Act, 1950) does not
make criminal all associations with an organization which
has been shown to engage in illegal advocacy. There
must be clear proof that a defendant 'specifically intends
to accomplish the aims of the organization by resort to
B violence'. A person may be foolish, deluded, or perhaps
merely optimistic, but he is not by this statute made a
criminal."
(emphasis supplied)
c 12. Elfbrandt's case (supra) also relied on the U.S.
Supreme Court decisions in Apthekar vs. Secretary of State
378 US 500, Baggett vs. Bil/it 377 US 360, Cramp vs. Board
of Public Instructions 368 US 278, Gibson vs. Florida 372 US
539, etc.
D
13. In Noto vs. U.S. 367 US 290(297-298) Mr. Justice
Harlan of the U.S. Supreme Court observed :
"......... The mere teaching of Communist theory, including
the teaching of the moral propriety or even moral necessity
E for a resort to force and violence, is not the same as
preparing a group for violent action and steeling it to such
action. 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
F pervasive to lend colour to the otherwise ambiguous
theoretical material regarding Communist Party teaching."
14. In Noto's case (supra) Mr. Justice Hugo Black in a
concurring judgment wrote :
G "In 1799, the English Parliament passed a law
outlawing certain named societies on the ground that they
were engaged in 'a traitorous Conspiracy ........... in
conjunction with the Persons from Time to Time exercising
the Powers of Government in France ...... .' One of the
H
SRI INDRA DAS v. STATE OF ASSAM · 299
[MARKANDEY KATJU, J.]
many strong arguments made by those who opposed the A
enactment of this law was stated by a member of that
body, Mr. Tierney :
'The remedy proposed goes to the putting an end to
all these societies together. I object to the system, of which
8
this is only a branch; for the Right Hon. gentleman has told
us he intends to propose laws from time to time upon this
subject, as cases may arise to require them. I say these
attempts lead to consequences of the most horrible kind.
I see that government are acting thus. Those whom they
cannot prove to be guilty, they will punish for their C
suspicion. To support this system, we must have a swarm
of spies and informers. They are the very pillars of such
a system of government.'
The decision in this case, in my judgment, D
dramatically illustrates the continuing vitality of this
observation.
The conviction· of the petitigner here is being
reversed because the Govern merit has failed 'to produce E
evidence the Court believes sufficient to prove that the
Communist Party presently advocates the overthrow of the
Government by force."
(emphasis supplied)
F
15. In Communist Party vs. Subversive Activities Control
Board, 367 US 1 (1961) Mr. Justice Hugo Black in his
dissenting judgment observed :
"The first banning of an association because it
advocates hated ideas - whether that association be called G
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 ...... This whole Act, with its pains
and penalties, embarks this country, for the first time, on
H
300 SUPREME COURT REPORTS [2011] 4 S.C.R.•
A the dangerous adventure of outlawing groups that preach
doctrines nearly all Americans detest. When the practice
of outlawing parties and various public groups begins, no
one can say where it will end. In most countries such a
practice once begun ends with a one party government."
B
16. In Joint Anti-Fascist Refugee Committee vs. McGrath,
341 US 123, 174 (1951) Mr. Justice Douglas in his concurring
judgment observed :
"In days of great tension when feelings run high, it is
c a temptation to take short cuts 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."
D (emphasis supplied)
17. In Keyishian vs. Board of Regents of the University
of the State of New York, 385 US 589, 606 (1967) the U.S.
Supreme Court struck down a law which authorized the board
of regents to prepare a list of subversive organizations and to
E 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 the Court held that the law was too
sweeping, penalizing "mere knowing membership without a
F specific intent to further the unlawful aims."
18. In Yates vs. U.S., 354 US 298 (1957), Mr. Justice
Harlan of the U.S. Supreme Court observed :
"In failing to distinguish between advocacy of forcible
G overthrow as an abstract doctrine and advocacy of action
to that end, the District Court appears to have been led
astray by the holding in Dennis that advocacy of violent
action to be taken at some future time was enough. The
District Court apparently thought that Dennis obliterated the
H traditional dividing line between advocacy of abstract
• SRI INDRA DAS v. STATE OF ASSAM
[MARKANDEY KATJU, J.]
301
doctrine and advocacy of action." A
19. In Brandenburg vs. Ohio, 395 US 444(1969), which
we have referred to in our judgment, the U.S. Supreme Court
by a unanimous decision reversed its earlier decision in
Whitney vs. California, 274 US 357 (1927) and observed :
B
"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 C
such action."
20. In Whitney vs. California (supra) Mr. Justice Brandeis,
the celebrated Judge of the U.S. Supreme Court in his
concurring judgment (which really reads like a dissent) observed 0
"Fear of serious injury cannot alone justify
suppression of free speech and assembly. Men feared
witches and burned women. It is the function of free speech
to free men from the bondage of irrational fears. To justify E
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 ........ The wide
difference between advocacy and incitement, between F
preparation and attempt, between assembling and
conspiracy, must be borne in mind."
(emphasis supplied)
21. Mr. Justice Brandeis in the same judgment went on to G
observe:
''Those who won our independence by revolution
were not cowards. They did not fear political change. They
did not exalt order at the cost of liberty. To courageous, H
302 SUPREME COURT REPORTS r20111 4 s.cf
A self-reliant men, with confidence in the power of free and
fearless reasoning applied through the processes of
popular government, no danger flowing from speech can
be deemed clear and present, unless the incidence of the
evil apprehended is so imminent that it may befall before
8 there is opportunity for full discussion. If there be time to
expose through discussion the falsehood and fallacies, to
avert the evil by the process of education, the remedy to
be applied is more speech, not enforced silence."
22. In Git/ow vs. New York, 268 US 652 (1925) Mr. Justice
C Holmes of the U.S. Supreme Court (with whom Justice Brandeis
joined) in his dissenting judgment observed :
........... "If what I think the correct test is applied, it
is manifest that there was no present danger of an attempt
D 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. Every idea is an incitement. It
offers itself for belief, and, if believed, it is acted on unless
E some other belief outweighs it, or some failure of energy
stifles the movement at its birth. The only difference
between the expression of an opinion and an incitement
in the narrower sense is the speaker's enthusiasm for the
result. Eloquence my set fire to reason. But whatever may
be thought of the redundant discourse before us, it had no
F
chance of starting a present conflagration. If, in the long
run, the beliefs expressed in proletarian dictatorship are
destined to be accepted by the dominant forces of the
community, the only meaning of free speech is that they
should be given their chance and have their way.
G
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. The object would have
H been one with which the law might deal, subject to the
• SRI INDRA DAS v. STATE OF ASSAM
[MARKANDEY KATJU, J.]
doubt whether there was any danger that the publication
303
A
could produce any result; or, in other words, whether it was
not futile and too remote from possible consequences. But
the indictment alleges the publication and nothing more."
23. In Terminiello vs. Chicago, 337 US 1 (1949) Mr.
8
Justice Douglas of the U.S. Supreme Court speaking for the
majority observed :
" .... [A] function of free speech under our system of
government is to invite dispute. It may indeed best serve
its high purpose when it induces a condition of unrest, C
creates dissatisfaction with conditions as they are, or even
stirs people to anger. Speech is often provocative and
challenging. It may strike at prejudices and preconceptions
and have profound unsettling effects as it presses for
acceptance of an idea. That is why freedom of -speech, D
though not absolute .... is nevertheless protected against
censorship or punishment, unless shown likely to produce
a clear and present danger of a serious substantive evil
that rises far above public inconvenience, annoyance or
unrest. ... There is no room under our Constitution for a E
more restrictive view. For the alternative would lead to
standardization of ideas either by legislatures, courts, or
· dominant political or community groups."
24. In DeJonge vs. Oregon, 299 US 353 (1937) Chief
Justice Hughes of the U.S. Supreme Court wrote that the State F
cou.ld not punish a person making a lawful speech simply
because the speech was sponsored by a subversive
organization.
25. In Abrams vs. U.S., 250 US 616 (1919) Mr. Justice G
Holmes of the U.S. Supreme Court in his dissenting judgment
wrote :
"Persecution for the expression of opinions seems
to me perfectly logical. If you have no doubt of your H
304 SUPREME COURT REPORTS [2011) 4 S.C.R.
A premises or your power and want a certain result with all
your heart you naturally express your wishes in law and
sweep away all opposition. To allow opposition by speech
seems to indicate that you think the speech impotent, as
when a man says that he has squared the circle, or that
B you do not care whole-heartedly for the result, or that you
doubt either your power or your premises. But when men
have realized that time has upset many fighting faiths, they
may come to believe even more then they believe the very
foundations of their own conduct that the ultimate good
c desired is better reached by free trade in ideas, - that
the best test of truth is the power of the thought to get itself
accepted in the competition of the market; and that truth
is the only ground upon which their wishes safely can be
carried out. That, at any rate, is the theory of our
Constitution. It is an experiment, as all life is an experiment.
D
Every year, if not every day, we have to wager our salvation
upon some prophecy based upon imperfect knowledge.
While that experiment is part of our system I think that we
should be eternally vigilant against attempts to check the
expression of opinions that we loathe and believe to be
E fraught with death, unless they so imminently threaten
immediate interference with the lawful and pressing
purposes of the law that an immediate check is required
to save the country. I wholly disagree with the argument of
the government that the 1st Amendment left the common
F law as to seditious libel in force. History seems to me
against the notion."
(emphasis supplied)
G 26. It has been submitted by the learned counsel for the
Government before the TADA Court that under many laws mere
membership of an organization is illegal e.g. Section 3(5) of
Terrorists and Disruptive Activities, 1989, Section 10 of the
Unlawful Activities (Prevention) Act 1967, etc. In our opinion
these statutory provisions cannot be read in isolation, but have
H
• SRI INDRA DAS v. STATE OF ASSAM
[MARKANDEY KATJU, J.]
to be read in consonance with the Fundamental Rights
305
A
guaranteed by our Constitution.
27. 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 can either declare it unconstitutional or we can
B
read it down to make it constitutional. The first attempt of the
Court should be try to sustain the validity of the statute by
reading it down. This aspect has been discussed in great detail
by this Court in Government of Andhra Pradesh vs. P. Laxmi
Devi 2008(4) SCC 720.
c
28. In this connection, we may refer to the Constitution
Bench decision in Kedar Nath Singh vs. State of Bihar AIR
1962 SC 955 where the Supreme Court was dealing with the
challenge made to the Constitutional validity of Section 124A
IPC (the law against sedition). D
29. In Kedar Nath Singh's case this Court observed(vide
para 26):
............. "If, on the other hand, we were to hold that even
without any tendency to disorder or intention to create E
disturbance of law and order, by the use of words written
or spoken which merely create disaffection or feelings of
enmity against the Government, the offence of seqition is
complete, then such an interpretation of the sections would
make them unconstitutional in view of Article 19(1)(a) read F
with clause (2). It is well settled that if certain provisions of
law construed in one way would make them consistent with
the Constitution, and another interpretation would render
them unconstitutional, the Court would lean in favour of the
former constructipn. The provisions of the sections read G
as a whol~. along with the explanations, make it
reasonably clear that the sections aim at rendering penal
only such activities as would be intended, or have a
tendency, to create disorder or disturbance of public
peace by resort to violence."................ H
A
306 SUPREME COURT REPORTS
30. Section 124A which was enacted in 1870 was
[2011] 4 S.C.R. •
subsequently amended on several occasions. This Court
observed in Kedar Nath's case (supra) observed that now that
we have a Constitution having Fundamental Rights all statutory
provisions including Section 124A IPC have to be read in a
B manner so as to make them in conformity with the Fundamental
Rights. Although according to the literal rule of interpretation we
have to go by the plain and simple language of a provision while
construing it, we may have to depart from the plain meaning if
such plain meaning makes the provision unconstitutional.
c 31. Similarly, we are of the opinion that the provisions in
various statutes i.e. 3 (5) of TADA or Section 10 of the Unlawful
Activities (Prevention) which on their plain language make mere
membership of a banned organization criminal have to be read
down and we have to depart from the literal rule of interpretation
D in such cases, otherwise these provisions will become
unconstitutional as violative of Articles 19 and 21 of the
Constitution. It is true that ordinarily we should follow the literal
rule of interpretation while construing a statutory provision, but
if the literal interpretation makes the provision unconstitutional
E we can depart from it so that the provision becomes
constitutional.
32. As observed by this Court in Government of Andhra
Pradesh vs. P. Laxmi Devi (supra) every effort should be made
F by the Court to try to uphold the validity of the statute, as
invalidating a statute is a grave step. Hence we may
sometimes have to read down a statute in order to make it
constitutional.
33. This principle was examined in some detail by the
G Federal Court in In re Hindu Women's Right to Property Act,
AIR 1941 F.C 12 in considering the validity of the Hindu
Women's Right to Property Act, 1937. The Act, which was
passed by the Council of State after commencement of Part Ill
of the Government of India Act, 1935, when the subject of
H devolution of agricultural land had been committed exclusively
• SRI INDRA DAS v. STATE OF ASSAM
[MARKANDEY KATJU, J.]
307
to Provincial Legislatures, dealt in quite general terms with the A
'Property' or 'separate property' of a Hindu dying intestate or
·his 'interest in joint family property'. A question, therefore, arose
whether the Act was ultra vires of the powers of the Central
Legislature. The Federal Court held the Act intra vires by
construing the word 'property' as meaning 'property other than B
agricultural land'. In the aforesaid decision Gwyer, CJ.
observed : "If that word (property) necessarily and inevitably
comprises all forms of property, including agricultural land, then
clearly the Act went beyond the powers of the Legislature; but
when a Legislature with limited and restricted powers makes C
use of a word of such wide and general import, the presumption
must surely be that it is using it with reference to that kind of
property with respect to which it is competent to legislate and
to no other." The learned Chief Justice further observed: "There
is a general presumption that a Legislature does not intend to D
exceed 'its jurisdiction, and there is ample authority for the
proposition thatgeneral words in a statute are to be construed
with reference to the powers of the Legislature with enacts it."
34. The rule was applied by the Supreme Court in Kedar
Nath Singh vs. State of Bihar (we have already referred to this E
decision earlier) in its construction of Section 124A of the IPC.
The Section which relates to the offence of sedition makes a
person punishable who 'by words, either spoken or written or
by sign or visible representations, or otherwise, brings or
attempts to bring into hatred or contempt, or excites or attempts F
to excite disaffection towards the Government established by
law'. The Section, as construed by the Privy Council in Bal
Gangadhar Tilak vs. Queen Empress ILR 22 Born 528 (PC);
Annie Besant vs. A-G of Madras AIR 1919 PC 31; and
Emperor vs. Sadasiv Narain AIR 1947 PC 84; did not make it G
essential for an activity to come within its mischief that the same
should involve intention or tendency to create disorder, or
disturbance of law and order or incitement to violence. The
Federal Court in Niharendra Dutta vs.· Emperor AIR 1942 FC
22 had, however, taken a different view. In the Supreme Court H
308 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A when the question came up as to the Constitutional validity of
the Section, the Court differing from the Privy Council adopted
the construction placed by the Federal Court and held that on
a correct construction, the provisions of the Section are limited
in their application "to acts involving intention or tendency to
8 create disorder or disturbance of law and order or incitement
to violence; and one of the reasons for adopting this
construction was to avoid the result of unconstitutionality in view
of Articles 19(1 )(a) and 19(2) of the Constitution.
35. In Sunil Batra vs. Delhi Administration AIR 1978 SC
C 1675 the Supreme Court upheld the validity of Section 30(2)
of the Prisons Act, 1894, which provides for solitary
confinement of a prisoner under sentence of death in a cell and
Section 56 of the same Act, which provides for the confinement
of a prisoner in irons for his safe custody, by construing them
D narrowly so as to avoid their being declared invalid on the
ground that they were violative of the rights guaranteed under
Articles 14, 19 and 21 of the Constitution.
36. In New India Sugar Mills vs. Commissioner of Sales
E Tax AIR 1963 SC 1207, a wide definition of the word 'sale' in
the Bihar Sales Tax Act, 1947, was restricted by construction
to exclude transactions, in which property was transferred from
one person to another without any previous contract of sale
since a wider construction would have resulted in attributing to
F the Bihar Legislature an intention to legislate beyond its
competence.
37; In Section 6(a) of the Hindu Minority and Guardianship
Act, 1956 which provides that the natural guardian of a minor's
person or property will be 'the father and after him, the mother',
G the words 'after him' were construed not to mean 'only after the
lifetime of the father' but to mean 'in the absence of, as the
former construction would have made the section
unconstitutional being violative of the constitutional provision
against sex discrimination vide Githa Hariharan vs. Reserve
H Bank of India AIR 1999 SC 1149.
• SRI INDRA DAS v. STATE OF ASSAM
[MARKANDEY KATJU, J.]
309
38. In Govindlalji vs. State of Rajasthan AIR 1963 SC A
1638, where a question arose as to the Constitutional validity
of the Rajasthan Nathdwara Temple Act (13 of 1959), the
words'affairs of the temple' occurring in Section 16 of the said
Act were construed as restricted to secular affairs as on a wider
construction the Section would have violated Articles 25 and B
26 of the Constitution.
39. This Court in R.L. Arora vs. State of UP. AIR 1964
SC 1230 applied the same principle in construing Section
40(1 ), clause (aa) of the Land Acquisition Act, 1894, as G
amended by Act 31 of 1962 so as to confine its application to
such 'building or work' which will subserve the public purpose
of the industry or work in which the company, for which
acquisition is made, is engaged. A wider and a literal
construction of the clause would have brought it in conflict with
Article 31 (2) of the Constitution and would have rendered it
0
unconstitutional.
40. In Indian Oil Corporation vs. Municipal Corporation
AIR 1993 SC 844 Section 123 of the Punjab Municipal
Corporation Act, 1976 which empowered the Corporation to E
levy octroi on articles and animals 'imported into the city' was
read down to mean articles and animals 'imported into the
municipal limits for purposes of consumption, use or sale' only,
as a wide construction would have made the provision
unconstitutional being in excess of the power of the State F
Legislature conferred by Entry 52 of List II of Schedule VII of
the Constitution.
41. A further illustration, where general words were read
down to keep the legislation within permissible constitutional G
limits, is furnished in the construction of Section 5 of the
Lotteries (Regulation) Act, 1998 which reads: 'A State
Government may, within the State prohibit the sale of tickets
of a lottery organized conducted or promoted by every other
State'. To avoid the vice of discrimination and excessive
H
310 SUPREME COURT REPORTS [2011] 4 S.C.R.
A
delegation, the Section was construed to mean that a State can
only ban lotteries of other States, when it decides as a policy
to ban its own lotteries, or in other words, when it decides to
make the State a lottery free zone vide BR Enterprises vs.
State of UP. AIR 1999 SC 1867.
B
42. It may be mentioned that there were Constitutions in
our country even under British Rule e.g. the Government of India
Act, 1935, and the earlier Government of India Acts. These
Constitutions, however, did not have fundamental right
c guaranteed to the people. In sharp contrast to these is the
Constitution of 1950 which has fundamental rights in Part Ill.
These fundamental rights are largely on the pattern of the Bill
of Rights to the U.S. Constitution.
43. Had there been no Constitution having Fundamental
D 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) Act. But since there is a Copstitution in
our country providing for democracy and Fundamental Rights
WE! cannot give these statutory provisions such a meaning as
E that would make them unconstitutional.
44. In State of of Maharashtra & Ors. Vs. Bhaurao
Punjabrao Gawande, (2008) 3 SCC 613 (para 23) this Court
observed :
F
"... Personal liberty is a precious right. So did the Founding
Fathers believe becciuse, while their first object was to give
unto the people a Constitution whereby a government was
established, their second object, equally important, was to
protect the people against the government. That is why,
G
while conferring extensive powers on the government like
the power to declare an emergency, the power to suspend
the enforcement of fundamental rights or the the power to
issue ordinances, they assured to the people a Bill of
Rights by Part Ill of the Constitution, protecting against
H executive and legislative despotism those human rights
• SRI INDRA DAS v. STATE OF ASSAM
[MARKANDEY KATJU, J.]
311
which they regarded as fundamental. The imperative A
necessity to protect these rights is a lesson taught by all
history and all human experience. Our Constitution makers
had lived through bitter years and seen an alien
Government trample upon human rights which the country
had fought hard to preserve. They believed like Jefferson B
that "an elective despotism was not the Government we
fought for". And, therefore, while arming the Government
with large powers to prevent anarchy from within and
conquest from without, they took care to ensure that those
powers were not abused to mutilate the liberties of the c
people. (vide A.K. Roy Vs. Union of India (1982) 1 SCC
271, and Attorney General for India Vs. Amratlal
Prajivandas, (1994) 5 SCC 54." [emphasis supplied]
In M. Nagaraj & Ors. Vs. Union of India & Ors. (2006) 8
0
SCC 212, (para 20) this Court observed :
"It is a fallacy to regard fundamental rights as a gift from
the State to its citizens. Individuals possess basic human
rights independently of any Constitution by reason of the
basic fact that they are members of the human race." E
In l.R. Coelho (dead) By LRs. Vs. State of T.N., (2007) 2
. SCC 1 (vide paragraphs 109 and 49), this Court observed :
"It is necessary to always bear in mind that fundamental
rights have been considered to be heart and soul of the F
Constitution ..... Fundamental rights occupy a unique place
in the lives of civilized societies and have been described
in judgments as "transcendental", "inalienable", and
primordial".
G
45. The appeal is consequently allowed and the impugned
judgment is set aside.
B.B.B. Appeal allowed.
H
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