Bench stands by ruling on membership of banned outfit

The Supreme Court on Thursday reiterated its ruling that mere membership of a banned outfit could not be treated as a ground for criminality, unless a member resorted to, or incited people to, violence or public disorder.

A Bench of Justices Markandey Katju and Gyan Sudha Misra stood by the ruling even as the Centre, supported by the Bharatiya Janata Party, wanted a review of the February 4 judgment ordering the release of appellant Arup Bhuyan of the United Liberation Front of Asom, who had been convicted under the Terrorism and Disruptive Activities (Prevention) Act. In the present case of Sri Indra Das, who was awarded a five-year term by a TADA court, the Bench referred to the government's contention before that court that under many laws, including the Unlawful Activities (Prevention) Act, mere membership of an organisation was illegal.

But, “in our opinion, these statutory provisions cannot be read in isolation, but have to be read in consonance with the fundamental rights guaranteed by our Constitution. 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 read it down to make it constitutional,” said Justice Katju, writing the judgment.

The Bench said: “Similarly, the provisions in various statutes, i.e., Section 3 (5) of the TADA Act or Section 10 of the Unlawful Activities (Prevention) Act, which, in their plain language, make mere membership of a banned organisation criminal have to be read down, and we have to depart from the literal rule of interpretation in such cases; otherwise these provisions will become unconstitutional as being violative of Articles 19 and 21.”

Referring to the law against sedition under Section 124A of the Indian Penal Code, the Bench said: “All statutory provisions, including Section 124A of the IPC, had to be read in a manner so as to make them conform to the fundamental rights.”

The Bench made a reference to the conviction of Balgangadhar Tilak and Annie Besant for ‘sedition' by the Privy Council on the ground that it was not essential for an activity to involve disorder or incitement to violence. But, the Bench pointed out, the Supreme Court differed from the Privy Council's views and adopted the construction placed by the Federal Court in 1942 and held that the provisions relating to sedition “are limited in their application to acts involving intention or tendency to create disorder or disturbance or 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) (freedom of speech and expression) and 19 (2) (reasonable restrictions).”

The Bench set aside the TADA court order.