ARUP BHUYAN versus STATE OF ASSAM & ANR.

22. The abovementioned decision in Shreya Singhal (supra), has been followed recently in Kaushal Kishor (supra) by Justice B.V. Nagarathna in her erudite concurring opinion while analyzing the freedom of speech and expression under Article 19.29

23. The distinction as noted by this Court in various decisions between the American Constitution, specifically the First Amendment therein and Article 19 of the Indian Constitution have been noted hereinabove.

24. There have been, however, cases where this Court has, taken into consideration, judgments of the Supreme Court of the United States of America. For instance, the Constitution Bench in Express Newspapers (Pvt.) Limited and Another v. Union of India and Others30 (five-Judge Bench) wherein the constitutionality of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 was in question. Justice N.H. Bhagwati writing for the Court, observed, that since Article 19(1)(a) of our Constitution is based on the First Amendment of the American Constitution, it would be “legitimate and proper” to refer to 29 Paragraph 202(iii) & 203. 30 (1959) SCR 12 the decisions of the Supreme Court of the United States “in order to appreciate the true nature, scope and extent of this right”. This observation comes in addition to and despite having taken note of the warnings issued in State of Travancore – Cochin and Others v. Bombay Co. Ltd31 (five-Judge Bench) and State of Bombay v. R.M.D. Chamarbaugwala32 (five-Judge Bench). This was, however, after having duly recognized the “paucity of authority in India on the nature, scope and extent of this fundamental right of freedom of speech and expression enshrined under article 19(1)(a) of the Constitution”, at that point in time.

25. This observation of Justice N.H. Bhagwati has been further followed in Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd. and Ors.33 (two-Judge Bench) wherein the effect of Article 19 on the freedom of press was in question.34 The court while making reference to US and UK decisions in Nebraska Press Association v. Hugh Stuart35, John D. Pennekamo v. State of Florida36 and Attorney General v. British Broadcasting Corporation37, held that there was no reason for the injunction in question, to continue.38

26. In R.K. Garg v. Union of India39 (five-Judge Bench), a Constitution Bench, placed reliance on the Supreme Court of United States decisions in Morey v. Doud40 and Secy. of Agriculture v. Central Roig Refining Co.41 to hold that the courts cannot be converted into tribunals for relief from inequalities in economic legislations.42

27. An observation by Lord Denning in Ghani v. Jones43 quoted with approval in Maneka Gandhi v. Union of India44 (seven-Judge Bench), is worth reproducing herein. It reads, “a man’s liberty of 31 1952 SCR 1112 32 1957 SCR 874 33 (1988) 4 SCC 592 34 Paragraph 10. 35 427 US 539 36 (1945) 90 L Ed 331 37 (1979) 3 All ER 45 38 Paragraph 20 – 22, 38. 39 (1981) 4 SCC 675 40 354 US 457 (1957) 41 338 US 604 (1949) 42 Paragraph 8. 43 (1970) 1 QB 693 44 (1978) 1 SCC 248 ARUP BHUYAN v. STATE OF ASSAM & ANR. [SANJAY KAROL, J.] movement is regarded so highly by the law of England that it is not to be hindered or prevented except on surest grounds”. It is then, by extension, without a shadow of doubt, a sure ground for the restriction of liberty, in the present case of association, if the legislature, after following procedure established by law, found appropriate reasons to restrict such right, in particular, with banned organizations.

28. The purpose of delving into both nature of decisions, where judgments of the United States Supreme Court have and have not been relied on, is to demonstrate that in certain cases reference to those judgments is justified. Such reference though, needless to say, has to be appreciated in the light of our own constitutional, legislative as well as judicial, historic perspective. They cannot, as was done in the Arup Bhuyan and Indra Das referred to this bench, form the sole basis for the conclusion arrived at.

29. In the aforesaid backdrop, in order to answer the reference, it is essential to appreciate the decisions relied upon in the two decisions, namely, Arup Bhuyan and Indra Das. It is only subsequent to having appreciated these decisions that we may examine effectively, their application to the scenario before us. Background, import and relevance of decisions of Supreme Court of United States relied on in Arup Bhuyan

30. In Arup Bhayan, the learned bench of two judges placed reliance on American decisions in Elfbrandt v. Russel45, Clarence Brandenberg v. State of Ohio46 and United States v. Eugene Frank Robel47 wherein the doctrine of ‘guilt by association’ has been rejected. The court observed that the abovementioned judgments apply to India too, since the fundamental rights in India are similar to the Bill of Rights in the U.S. Constitution. Furthermore, this court while setting aside the conviction of the appellant under S.3(5) TADA observed: “12. In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in the light of our observations made above. Hence, mere membership of a banned organisation will not make a person a 45 384 U.S. 17 (1966) 46 395 U.S. 444 (1969) 47 389 U.S. 258 (1967) criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.”

31. Reliance was placed on the decision of this court in State of Kerela v. Raneef48 (two-Judge Bench), wherein Justice Katju, while upholding the order granting bail to the Respondent, placed reliance on US Supreme Court decisions such as Elfbrandt (supra) which has rejected the doctrine of “guilt of association”.

32. In Elfbrandt (supra), the constitutionality of the Arizona Act was in question which required all state employees to take oath. Under the oath, an employee is subject to prosecution for perjury and discharge from office if he “knowingly and willfully becomes or remains a member of the communist party of the United States or its successors or any of its subordinate organizations’’ or “any other organization” having for “one of its purposes”, the overthrow of the state government, where the employee had knowledge of such unlawful purpose. It was held that those who join an organization but do not share its 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 through the Fourteenth Amendment.

33. In Clarence Brandenberg v. State of Ohio49, the Appellant was convicted under the Ohio Criminal Syndicalism statute for: (i) ‘advocating … the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform’ and (ii) for ‘voluntarily assembling with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.’ The Supreme Court of the United States of America, while reversing the conviction, held that Ohio’s Criminal Syndicalism Act cannot be sustained. The Act punishes persons who ‘advocate or teach the duty, necessity, or propriety’ of violence ‘as a means of accomplishing industrial or political reform’; or who publish or circulate or display any book or paper containing such advocacy; or who ‘justify’ the commission 48 (2011) 1 SCC 784 49 395 U.S. 444 (1969) ARUP BHUYAN v. STATE OF ASSAM & ANR. [SANJAY KAROL, J.] of violent acts ‘with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism’; or who ‘voluntarily assemble’ with a group formed ‘to teach or advocate the doctrines of criminal syndicalism.’ Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action. Furthermore, it held that 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 such action.

34. In United States v. Eugene Frank Robel50, the constitutionality of S. 5(a)(1)(D) of the Subversive Activities Control Act of 1950, was drawn into question before the Supreme Court of the United States of America. S.5(a)(1)(D) of the Act provided that, when a Communist-action organization is under a final order to register, it shall be unlawful for any member of the organization ‘to engage in any employment in any defense facility.’ In this case, the appellee was indicted since he was a member of the Communist Party and was employed at Todd Shipyards Corporation, which was designated as a ‘defense facility.’ The Court declared S.5(a)(1)(D) as unconstitutional and held that: “It is precisely because that statute sweeps indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership, that it runs afoul of the First Amendment.” Background, import and relevance of decisions of Supreme Court of United States relied on in Indra Das

35. In Indra Das, the learned bench of two Judges relied on and followed its earlier judgment in Arup Bhuyan and while similarly relying on the American decisions discussed henceforth, it was held that S.3(5) of TADA/S.10 of UAPA have to be read down to bring them in consonance with the Constitution.

36. Reliance was placed on Elfbrandt (supra),as discussed above. 50 389 U.S. 258 (1967)

37. The learned division bench relied on Scales v. United States51, to make a distinction between an active and a passive member of an organization. In this case, the Petitioner’s conviction under the Smith Act came in review before the Supreme Court of the United States of America. This act, made a felony “the acquisition or holding of knowing membership in any organization which advocates the overthrow of the Government of the United States by force of violence.” Further, the Court, while overruling the Petitioner’s constitutional challenge observed that: “The clause does not make criminal all association 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 violence.” Thus, the member for whom the organization is a vehicle for the advancement of legitimate aims and policies does not fall within the ban of the statute: he lacks the requisite specific intent ‘to bring about the overthrow of the government as speedily as circumstances would permit.’ Such a person may be foolish, deluded, or perhaps merely optimistic, but he is not by this statute made a criminal.”

38. In Noto v. United States52, the Petitioner was convicted of violating the membership clause of the Smith Act, which makes a felony the acquisition or holding of membership in any organization which advocates the overthrow of the Government of the United States by force or violence, knowing the purpose thereof. The Supreme Court observed that 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 pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching. In this backdrop, it was held that the conviction of the Petitioner is being reversed because the Government has failed to produce evidence the Court believes sufficient to prove that the Communist Party presently advocates the overthrow of the Government by force.

39. Reliance was placed on the dissenting opinion of Justice Hugo Black in Communist Party v. Subversive Activities Control 51 367 US 203 (1960) 52 367 US 290 (1960) ARUP BHUYAN v. STATE OF ASSAM & ANR. [SANJAY KAROL, J.] Board53. In this case, the registration of the Communist Party of the United States since it was a “Communist action organization,” under the Subversive Activities Control Act of 1950 was brought into question. Justice Hugo Black observed that: “I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish. The first banning of an association because it advocates hated ideas — whether that association be called 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.”

40. In Joint Anti-Fascist Refugee Committee v. McGrath54, the Petitioner organisations were included by the Attorney General as Communist, without hearing and furnished by him to the Loyalty Review Board of the United States Civil Service Commission. The court, while recognising that the Attorney General had no power to do so, remanded the matter back to the district court. It was observed that: “In days of great tension, when feelings run high, it is a temptation to take shortcuts 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.”

41. In Keyishian v. Board of Regents of New York55, the Supreme Court of the United States of America, struck down a law which authorized the board of regents to prepare a list of subversive organizations and to 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, penalizing mere knowing membership, without a specific intent to further the unlawful aims of an organization, is not a constitutionally adequate basis for exclusion from such positions as those held by appellants.

42. In Yates v. U.S.56, the Petitioners were members of the Communist Party in California and were indicted under the Smith Act, charging them with conspiring (1) to advocate and teach the duty and 56 354 US 298 (1957) 53 367 US 1 (1961) 54 341 US 123, 174 (1951) 55 385 US 589 1966 necessity of overthrowing the Government of the United States by force and violence, and (2) to organize, as the Communist Party of the United States, a society of persons who so advocate and teach, all with the intent of causing the overthrow of the Government by force. While reversing the conviction of the Petitioners, the Supreme Court observed that the district court failed to distinguish between advocacy of forcible overthrow and advocacy of action, by holding that advocacy of violent action at some future time was enough.

43. Reliance was placed on Clarence Brandenberg (supra), as discussed above.

44. In Whitney v. California57, the question which arose was whether the petitioner, who joined and assisted in the organization of a Communist Labor Party contravening the California Criminal Syndicalism Act, did so with knowledge of its unlawful character and purpose. The Supreme Court of the United States of America, while upholding the constitutionality of the abovementioned act, observed that the freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility. Furthermore, although the rights of free speech and assembly are fundamental, they are not, in their nature, absolute. In Indra Das, reliance was placed on the concurring opinion of Mr. Justice Brandeis wherein he observed that fear of serious injury cannot alone justify suppression of free speech and assembly. It is the function of speech to free men from the bondage of irrational fears. To justify 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. There must be reasonable ground to believe that the evil to be prevented is a serious one.

45. Reliance was placed on the dissenting opinion of Mr. Justice Holmes in Gitlow v. New York58. In this case, the appellant was a member of the Left-Wing Section of the Socialist Party. He was indicted for advocating the overthrow and upending of the organized government. The majority opinion reiterated that it is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, 57 274 US 357 (1926) 58 268 US 652 (1925) ARUP BHUYAN v. STATE OF ASSAM & ANR. [SANJAY KAROL, J.] without responsibility. a State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. These imperil its own existence as a constitutional State. Freedom of speech and press does not protect disturbances to the public peace or the attempt to subvert the government. The constitutionality of the statute and conviction of the appellant was upheld. Justice Holmes observed that: “It is manifest that there was no present danger of an attempt 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. 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. …. but the indictment alleges the publication, and nothing more.”

46. In Terminiello v. Chicago59, the Petitioner was charged with violation of an ordinance forbidding any “breach of the peace”.While reversing his conviction, the Supreme Court of the United States of America held that 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, creates dissatisfaction with conditions as they are, or even stirs people to anger. The Court observed that “..speech is often provocative and challenging.”

47. In De Jonge v. Oregon60, the Appellant was charged on the basis that he assisted in the conduct of a meeting which was called under the auspices of the Communist Party, an organization advocating criminal syndicalism. The Supreme Court of the United States of America while considering the Criminal Syndicalism Law of Oregon held that “none of our decisions goes to the length of sustaining such a curtailment of the right of free speech and assembly as the Oregon statute demands in its present application.” Reliance was placed on the abovementioned decisions in Gitlow (supra) and Whitney (supra). 59 337 US 1 (1948) 60 299 US 353 (1936) Conclusions

48. The abovementioned decisions are in contradistinction to the scenario in question in India. The American decisions primarily involve indictment on the basis of membership of political organizations or incidents of free speech advocating overthrow of the government. However, under Indian law, it is not membership of political organizations etc. or free speech or criticism of the government that is sought to be banned, it is only those organizations which aim to compromise the sovereignty and integrity of India and have been notified to be such and unlawful, whose membership is prohibited. This is in furtherance of the objective of the UAPA, which has been enacted to provide for the more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activitiesand for matters connected therewith. The distinction, therefore, is clear.

49. Furthermore, the UAPA provides for a system of checks & balances and public notification for any association being declared unlawful: S.3 of the Act, states that the Central Government must publish a notification declaring an unlawful association in the Official Gazette and Daily Newspaper in the State in which the principal office of the association affected is situated. Furthermore, the Association must be notified by affixing a copy on its office or by serving its office bearers or by means of loudspeakers. Under S.4 of the Act, any notification under S.3 of the Act, shall be adjudicated upon by the Tribunal for the purpose of whether or not there is sufficient cause for declaring the association unlawful. In this adjudication, the association is given an opportunity to be heard. S.5 provides for setting up this UAPA Tribunal, to which no person shall be appointed unless he is a Judge of a High Court. Under S.10 of the Act, which may be termed as the genesis if the present controversy to be adjudicated upon, in my understanding is forthcoming in its meaning. “Is and continues to be” implies that a person, even after the organization being so notified as unlawful, is and continues to be a member, would attract penalty under the said section. The use of the conjunction “and’’ means that both of the ARUP BHUYAN v. STATE OF ASSAM & ANR. [SANJAY KAROL, J.] abovementioned conditions have to be satisfied. [Hyderabad Asbestos Cement Products and Anr. v. Union of India and Ors.61, (three-Judge Bench)] It is important to reiterate, that the above observations have been made in light of and for application to the present reference. 50.Importantly, Shreya Singhal (supra) captures the situation in regards the use of judgments of the Supreme Court of the United States of America aptly to say that those judgments are of “great persuasive value” but it also notes that there is “a world of difference” between the American and Indian scenario, so far as, subserving public interest is concerned. It is this difference which seemed to have escaped the learned division bench’s attention in Arup Bhyan and Indra Das. 51.As recorded by the Constitution (First Amendment) Act, 1951, issues in the functioning and implementation of such rights were being faced right from the start and so the law-making authority, in order to ensure smooth functioning of law. This Court cannot be oblivious to such fact. The vast, varied and scholarly jurisprudence developed by this court has been in view of these clauses within Article 19. Now, at this juncture, seven decades thence, in my view a stand of whichever court, cannot be allowed to stand if it is in ignorance of constitutional provisions. I may hasten to add that neither I, or this bench, nor any other court would hold otherwise to state that influences or even borrowing from other constitutions has not taken place in the formation of our constitution, but, it is equally and ever so more important to note, that the development thereof has been done in specific context of the situations and conditions prevalent in India. 52. In light of the above, I may conclude that placing reliance therefore, on decisions rendered in a distinct scenario as well as a demonstrably different constitutional position, that too almost singularly, especially in cases which involve considerations of national security and sovereignty, was not justified. 53. The reference is answered in the above terms. Bibhuti Bhushan Bose Reference answered. (Assisted by : Abhishek Agnihotri and Shubhanshu Das, LCRAs) 61 (2000) 1 SCC 426