The Supreme Court held on Friday as bad in law its 2011 verdicts that ruled that mere membership in a banned organization will not make a person a criminal unless he resorts to violence or incites others to violence.
While deciding a reference made by a two-judge bench, a bench of Justices MR Shah, CT Ravikumar, and Sanjay Karol held that mere membership in a banned organization makes a person criminal and subject to prosecution under UAPA provisions.
The bench said the subsequent decisions passed by high courts pursuant to its two-judge verdicts in 2011 on the membership of banned outfits are bad in law and should be overruled. While allowing petitions of the Centre and the Assam government seeking review of the apex court’s 2011 verdicts on the membership of banned outfits, the court said the Union government was required to be heard when a provision enacted by Parliament is read down.
The top court stated that the 2011 verdicts were issued based on American court decisions, which cannot be done without taking into account the situation in India. “In India, the right to freedom of speech and expression is not absolute and is subject to reasonable restrictions.” However, the bench stated that decisions of American courts can be used as a guideline.
On February 9, the top court, while reserving its verdict on a batch of review pleas, noted that the Union of India was not heard by its two-judge benches when the 2011 verdict was passed, reading down Section 3(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (now repealed).
On February 3, 2011, the Supreme Court acquitted suspected ULFA member Arup Bhuyan, who had been found guilty by a TADA court on the basis of his alleged confessional statement before the Superintendent of Police, and stated that mere membership in a banned organization does not make a person a criminal unless he resorts to violence or incites people to violence or causes public disorder through violence or incitement to violence.
Similar views were expressed by the Supreme Court in two other 2011 decisions, Indra Das vs. State of Assam and State of Kerala vs. Raneef, in which the bench relied on three US Supreme Court decisions that rejected the doctrine of “guilt by association.”