Conviction for mere membership is violative of fundamental

rights:SC

New Delhi, Feb 10 (PTI) In a fresh ruling, the SupremeCourt has held that a person cannot be convicted for beingsimply a member of a banned organisation as otherwise it wouldbe violative of his or her fundamental rights.

A bench of justices Markandeya Katju and Gyan SudhaMishra said in a judgement that any statutory provision whichviolates the tenets of the Constitution can be struck down.

"The Constitution is the highest law of the land and nostatute can violate it. If there is a statute which appears toviolate it, we can either declare it unconstitutional or wecan read it down to make it constitutional. The first attemptof the court should be try to sustain the validity of thestatute by reading it down.

"Similarly, we are of the opinion that the provisions invarious statutes i.e 3(5)of TADA or Section 10 of the UnlawfulActivities (Prevention) which on their plain language makemere membership of a banned organization criminal have to beread down and we have to depart from the literal rule ofinterpretation in such cases. Otherwise, these provisions willbecome unconstitutional as violative of Articles 19 and 21 ofthe Constitution," the apex court said.

The bench made the remarks while acquitting Indra Das, analleged activist of banned ULFA, who was sentenced to fiveyears RI by a designated TADA court in Assam for being amember of the insurgents'' outfit.

The apex court had recently in the case of ArupBhuyan, also an alleged activist of ULFA, held that meremembership of a banned organisation does not make a personliable for criminal prosecution unless it was proved that theaccused had incited or resorted to violence.

"In the present case, even assuming that the appellantwas a member of ULFA which is a banned organization, there isno evidence to show that he did acts of the nature abovementioned.

"Thus, even if he was a member of ULFA, it has not beenproved that he was an active member and not merely a passivemember. Hence, the decision in Arup Bhuyan�s case squarelyapplies in this case," the bench said.

The government had taken a stand before the TADA Courtthat under many laws, meremembership of an organization isillegal e.g. Section 3(5) of Terrorists and DisruptiveActivities, 1989, Section 10 of the Unlawful Activities(Prevention ) Act 1967, etc.

"In our opinion, these statutory provisions cannot beread in isolation but have to be read in consonance with thefundamental rights guaranteed by our Constitution," the benchsaid while acquitting Indra Das.