The Supreme Court in the case of Arup Bhuyan v. State of Assam Home Department has upheld the validity of Section 10 (a) (i) and further observed that the aim of UAPA is to prevent certain unlawful activities and prevent the same at the cost of repetition, UAPA is to punish the person of an unlawful organisation in furtherance of the provisions of the UAPA. This Section 10(a)(i) is absolutely in accordance with Articles 19(1)(a) and 19(2) of the Constitution and thus in consonance with the objectives of the UAPA.”
It is pertinent to note that in 2011 a Bench of Justice Markandey Katju and Gyan Sudha Mishra, while acquitting Arup Bhuyan and later Indra Das for offences under the Terrorist and Disruptive Activities (Prevention) Act (TADA), while relying on its decision in State of Kerala v. Raneef as well as the American Bill of Rights and some US Supreme Court rulings held that, In our opinion, Section 3(5) could not be read otherwise it will violate Articles 19 and 21 of the Constitution. Hence, mere membership of a banned organisation will not make the person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence”.
The question of reliance put on the foreign judgment was also raised, on which the bench held “This Court in Arup Bhuyan and in Raneef case has referred to US cases without relying on Indian case and differences. Thus this Court followed US decisions, which we are not agreeable with. We do not say for a moment that the United States Supreme Court decisions may not guide us. But Indian courts are required to consider the difference of laws between two countries.”
Unlawful Association- According to Section 2(p) of the UAPA Act
“unlawful association” means any association,—
(i) which has for its object any unlawful activity, or which encourages or aids persons to
undertake any unlawful activity, or of which the members undertake the such activity; or
(ii) which has for its object any activity which is punishable under section 153A (45 of 1860)
or section 153B of the Indian Penal Code, which encourages or aids persons to undertake any
such activity, or of which the members undertake any such activity.
The unlawful association is punishable under Sec 10(2) of the UAPA Act which states,
a person, who is or continues to be a member of such association, or voluntarily does an act
aiding or promoting in any manner the objects of such association and in either case is in possession of any unlicensed firearms, ammunition, explosive or other instrument or substance capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property,—
(i) and if such act has resulted in the death of any person, shall be punishable with death or
imprisonment for life, and shall also be liable to fine;
(ii) in any other case, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.