Express View: SC order on UAPA lowers the bar for state when restricting freedoms

Source: The post is based on the article “Express View: SC order on UAPA lowers the bar for state when restricting freedoms” published in the Indian Express on 27th March 2023.

Syllabus: GS – 2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

Relevance: About membership of a banned association.

News: Recently, the Supreme Court has held that mere membership of a banned association is sufficient to constitute an offence under the Unlawful Activities (Prevention) Act 1967.

About the recent SC ruling

What are the previous rulings of the court on membership of a banned association?

Section 10(a)(i) of the UAPA states that where an association is declared unlawful by a notification, “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”.

In 2011, the court discussed the line between advocacy and incitement to violence. The court also discussed how a passive membership or intellectual sympathy to a cause can spill over to a real call to violence. The ruling distinguished between active and passive members. In the same year, the court applied the same principle in two other cases and granted bail.

Both the centre and state of Assam had sought a review of this reading. The present ruling has overruled three older cases.

What are the reasons for overruling the decision?

Firstly, the court accepted the state’s argument that 1) there are sufficient safeguards in the stringent UAPA framework, 2) State is taking “every effort to ensure that every member of the association is made aware of the fact that such association is declared as unlawful”, 3) The government declare an organisation as unlawful only after a robust adversarial process wherein ample opportunity is given to the organisation to appeal before judiciary to justify its aims, objectives and activities being legal and not ‘unlawful’. This is done within the constitutional setup.

Secondly, the “court ought not to have relied upon the US Supreme Court judgments” since the US law is “in contradistinction to the scenario in question in India”. The court also explained that in the landmark Maneka Gandhi v Union of India case the court expanded on personal liberty. On the other hand, free speech in the US is unrestricted.