Section 10 of the Unlawful Activities (Prevention) Act, 1967: Constitutional Contours and Judicial Trajectory

Section 10 of the Unlawful Activities (Prevention) Act, 1967: Constitutional Contours and Judicial Trajectory

Introduction

Section 10 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) criminalises continued membership, participation, contribution or assistance to an association that has been declared unlawful under Section 3. Although the maximum punishment prescribed is two years’ imprisonment and fine, the provision has assumed disproportionate significance in Indian constitutional discourse, standing at the crossroads of national security imperatives and the constitutionally guaranteed freedom of association (Article 19(1)(c)) and personal liberty (Article 21). This article traces the statutory architecture, chronicles the oscillating judicial interpretations culminating in the Constitution Bench ruling of 2023, and evaluates the present constitutional position of Section 10.

Statutory Architecture of Section 10

Text and Ingredients

Where an association is declared unlawful … a person who
(a) is and continues to be a member of such association; or
(b) takes part in its meetings; or
(c) contributes, receives or solicits contributions for its purposes; or
(d) in any way assists its operations
shall be punishable with imprisonment which may extend to two years and fine.[1]

Legislative History

  • Enacted in 1967 to implement the Constitution (Sixteenth Amendment) Act, 1963, which inserted “sovereignty and integrity of India” as a ground of restriction on Article 19 rights.[2]
  • Substantive amendments in 2004, 2008 and 2013 extended the Act to terrorist offences, yet Section 10 remained textually unchanged, signalling a continuing legislative preference for strict liability in respect of unlawful associations.

Judicial Evolution

A. Early Approach: Literal Application

In R.K. Krishna Kumar v. State of Assam (1997) the Supreme Court treated a Section 10 charge as bailable but did not engage with its constitutional validity, implicitly accepting a literal reading whereby mere membership sufficed.[3]

B. The 2011 “Trilogy” – Reading Down to Preserve Fundamental Rights

Three co-ordinate Bench decisions—State of Kerala v. Raneef, Arup Bhuyan v. State of Assam and Indra Das v. State of Assam—imported First Amendment jurisprudence from the United States (Brandenburg, Elfbrandt, Scales) to hold that mere membership without overt acts, incitement or mens rea would render Section 10 (and the pari materia Section 3(5) TADA) unconstitutional; hence the provisions were read down to require proof of violence or incitement.[4]

C. Bail Jurisprudence under Section 10

  • Amal Kumar Sonowal (Gauhati HC 2021) held that in the absence of possession of arms the offence falls under Section 10(a) and is therefore bailable, granting statutory bail.[5]
  • Several High Courts (e.g., Nagamanickam, Thasleem K.K.) have considered Section 10 outside the rigours of Section 43-D(5), which applies only to Chapter IV & VI offences.[6]

D. Constitution Bench in Arup Bhuyan (2023): Restoration of Literal Meaning

In 2023 a five-judge Bench revisited the correctness of the 2011 trilogy. Holding that the earlier reading down was impermissible in the absence of a constitutional challenge, the Court ruled that once an association is duly declared unlawful, continued membership in itself constitutes the offence under Section 10(a)(i). The Bench explicitly overruled Raneef, Arup Bhuyan (2011) and Indra Das “to that extent”, affirming strict liability and jettisoning the requirement of overt acts or mens rea.[7]

Constitutional Analysis

1. Compatibility with Article 19(1)(c) & 19(4)

Freedom to form associations is subject to reasonable restrictions “in the interests of the sovereignty and integrity of India”. Section 10 fits squarely within this ground once a Tribunal-affirmed declaration under Section 3(3) is in force. By eliminating the need to prove specific intent, Parliament created a prophylactic offence aimed at neutralising potential threats. The 2023 Bench accepted this legislative judgment, emphasising the preventive—not punitive—object of UAPA.[8]

2. Article 21 and the Principle of Proportionality

Although a two-year maximum term may appear minimal, the collateral consequences—prolonged investigation, social stigma, ancillary executive actions (e.g., passport denial in S. Abdul Rahman)—implicate personal liberty.[9] The 2023 ruling implicitly applies the manifest arbitrariness standard: once procedural safeguards under Sections 3–8 (notification, reference to Tribunal, judicial review) are satisfied, the infringement is proportionate.

3. Doctrine of Reading Down v. Separation of Powers

The Constitution Bench cited Subramanian Swamy v. Raju (2014) to reiterate that reading down is permissible only to save a statute when its validity is challenged; it cannot be employed in collateral proceedings (e.g., bail) to alter clear legislative text. Thus, the 2011 trilogy was faulted for transgressing from interpretation to amendment.[10]

4. Mens Rea Debate

Indian criminal law traditionally presumes mens rea unless expressly or by necessary implication excluded. The Constitution Bench found that the preventive purpose and modest penalty sufficed to infer legislative intent to create a strict-liability offence. The decision aligns Section 10 with comparable regulatory crimes (e.g., customs, excise) where public welfare justifies dilution of mens rea.[11]

5. Comparative Statutory Context: Sections 38 & 39

Post-2004 the UAPA introduced Sections 38 and 39, which penalise association or support of terrorist organisations only when done “with intention to further the activities” of such organisations. The coexistence of an intention-based framework (Sections 38–39) alongside a strict-liability provision (Section 10) demonstrates a calibrated legislative policy: stricter proof is demanded where the offence entails higher penalties (up to life), whereas a prophylactic bar is retained for lower-penalty unlawful associations.[12]

Practical Implications Post-2023

  • Investigative Threshold: Post-2023, law-enforcement agencies need only establish (i) existence of a valid Section 3 notification; and (ii) continued membership or assistance, greatly lowering evidentiary burden.
  • Bail Landscape: Section 10 remains technically bailable (maximum punishment ≤ 3 years; Section 436 CrPC), but investigative agencies may club Chapter VI offences to invoke Section 43-D(5), intensifying bail hurdles.
  • Civil Liberties Concerns: Critics argue the ruling revives “guilt by association”, chilling legitimate dissent and discouraging social engagement due to fear of retrospective proscription.
  • Future Constitutional Challenge: The Court expressly left open a direct attack on Section 10’s validity; a forthcoming petition could invite proportionality review under Puttaswamy and Anuradha Bhasin.

Conclusion

The jurisprudence on Section 10 has swung from liberty-centric reading down to security-centric literalism. The 2023 Constitution Bench restored textual fidelity, upholding Parliament’s decision to criminalise mere continuance in unlawful associations as a preventive measure. While the judgment reinforces state capacity to contain secessionist or separatist threats, it simultaneously narrows the protective ambit earlier carved out for fundamental freedoms. The constitutional equilibrium between collective security and individual liberty therefore stands recalibrated, yet remains contestable in future litigation testing the intrinsic proportionality of Section 10.

Footnotes

  1. Section 10, UAPA 1967.
  2. Statement of Objects and Reasons, Unlawful Activities (Prevention) Bill, 1967.
  3. R.K. Krishna Kumar v. State of Assam, (1997) 2 SCC — anticipatory bail context.
  4. State of Kerala v. Raneef, (2011) 1 SCC 784; Arup Bhuyan v. State of Assam, (2011) 3 SCC 377; Indra Das v. State of Assam, (2011) 3 SCC 380.
  5. Amal Kumar Sonowal v. State of Assam, 2021 SCC OnLine GAU 1094.
  6. Nagamanickam v. State, 2016 SCC OnLine Mad 17089; Thasleem K.K. v. State of Kerala, 2016 Ker HC.
  7. Arup Bhuyan v. State of Assam (Home Dept.), 2023 SCC 8 745 (Constitution Bench).
  8. Ibid., paras 87–90.
  9. S. Abdul Rahman v. Regional Passport Officer, 2020 SCC OnLine Mad 3348.
  10. Subramanian Swamy v. Raju, (2014) 8 SCC 390.
  11. Constitution Bench, supra note 7, paras 98–104.
  12. Sections 38–39, UAPA 1967 (as amended 2004).