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Membership of banned outfit is crime under UAPA, says SC

The top court has set aside its own judgments that had concluded that mere membership — unlike active membership — of an unlawful group did not make a person criminal or a terrorist

A three-judge Bench of the Supreme Court on Friday clarified that a person who “is or continues to be” even a “mere member” of a banned organisation is liable to be found criminally liable under the Unlawful Activities (Prevention) Act (UAPA) for acting against the sovereignty and integrity of India.

With this judgment, the Supreme Court has set aside a series of its own judgments which had concluded that “mere membership” — unlike “active membership” — of an unlawful association or organisation did not make a person criminal or a terrorist. The judgment, on Friday, was based on an intra-court reference made in 2014.

The Bench led by Justice M.R. Shah, who wrote the judgment, was lauded by Solicitor General Tushar Mehta, representing the Centre, in the courtroom for the “historical” verdict.

“Immensely grateful to Your Lordships for this really historical judgment to protect the sovereignty of our country,” Mr. Mehta said immediately after the pronouncement of the judgment.

Justice Shah reasoned that an organisation is declared unlawful and banned only after the Centre is “satisfied that it is indulging in unlawful activities against the sovereignty and integrity of India”.

The declaration of an organisation or association as unlawful is publicly notified by the Centre under Section 3 of the UAPA. This naturally leads to the conclusion that every member of the organisation would know about the ban, the court reasoned.

But a person choosing to continue as a member despite knowing about the ban is acting against the sovereignty of the nation, the court noted.

Such a person cannot later claim that the law has a chilling effect on his fundamental right of association by imposing criminal liability on him, Justice Shah explained.

The judgment referred to Section 10(a)(i) of the UAPA which deals with membership of an unlawful association.

The provision says 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) a person, who — (i) 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”.

The court clarified that persons who had left the organisation and were not members at the time it was declared unlawful, cannot be held liable under Section 10(a)(i) of the UAPA.

The court referred to Article 19(4), which mandated that the citizens’ right to form unions or associations was subject to the power of the state to make laws to impose “reasonable restrictions” in the interests of the sovereignty and integrity of India or public order or morality.

The three-judge Bench said the earlier judgments in the cases of Arup Bhuyan, Sri Indra Das and Raneef, which had “read down” Section 10(a)(i) to exclude mere membership of an organisation from criminal liability, followed the American law blindly.

These judgments had not heeded the restraints stitched into Article 19(4) on the right of citizens to form associations. “Just following the American law without noticing differences between Indian and U.S. laws is not agreeable,” Justice Shah said.

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The Supreme Court of India has clarified that membership of a banned organization is a criminal offense under the Unlawful Activities (Prevention) Act (UAPA). The court set aside its own previous judgments that had concluded that mere membership of an unlawful group did not make a person criminal or a terrorist. The ruling means that a person who is a "mere member" of a banned organization can be held criminally liable for acting against the sovereignty and integrity of India. However, the court clarified that persons who had left the organization and were not members at the time it was declared unlawful cannot be held liable. The ruling was based on an intra-court reference made in 2014 and followed Section 10(a)(i) of the UAPA, which deals with membership of an unlawful association. The court reasoned that an organization is declared unlawful and banned only after the Centre is "satisfied that it is indulging in unlawful activities against the sovereignty and integrity of India."

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