The Supreme Court on Friday said that before they follow the decisions of US Courts, the Indian courts are required to consider the difference in the nature of the laws applicable in the respective countries.
A bench of Justices MR Shah, CT Ravikumar, and Sanjay Karol said that the three verdicts pronounced in 2011 which held that mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incites people to violence and does an act intended to create disorder or disturbance of public peace by resorting to violence “is not a good law.”
The three verdicts relied on US court decisions to arrive at their findings, the bench said.
“This Court ought to have considered the differences in the American laws and the Indian laws, more particularly the provisions in the Indian Constitution,” it said.
“… We do not say for a moment that in a given case the US Supreme Court decisions may not be taken into consideration and/or may not be a guidance. Before following the American decisions, the Indian Courts are required to consider the difference in the nature of the laws applicable in the respective countries,” it said.
The bench offered a contrast between the US and Indian laws, particularly Articles 19(1)(c) and 19(4) of the Constitution of India, which are subject to reasonable restrictions, as against in the US, where it is an absolute right as enshrined in its First Amendment.
“… this Court in the case of Arup Bhuyan and Raneep (2011 verdicts) has erred in straightaway and directly following the US Supreme Court decisions and that too without adverting to the differences and the position of laws in India,” the bench said.
It said that the two decisions without noticing the differences between the US Supreme Court and this Court just followed the American decisions, which is not agreeable.
Justice Karol, who concurred with the other two judges, gave his own reasons on reliance placed on American court verdicts, saying “the above mentioned decisions are in contradistinction to the scenario in question in India.”
He said that the US decisions primarily involve indictment on the basis of membership of political organisations or incidents of free speech advocating overthrow of the government.
“However, under Indian law, it is not membership of political organisations etc or free speech or criticism of the government that is sought to be banned, it is only those organisations 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 activities and for matters connected therewith. The distinction, therefore, is clear,” he said.
He said that the UAPA provides for a system of checks and balances.
“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,” Karol said.
