Jamaat-E-Islami
Hind Vs. Union of India [1994] INSC 644 (7 December 1994)
Verma,
Jagdish Saran (J) Verma, Jagdish Saran (J) Bharucha S.P. (J) Paripoornan, K.S.(J)
J.S. Verma, J.:
CITATION:
1995 SCC (1) 428 JT 1995 (1) 31 1994 SCALE (5)107
ACT:
HEAD NOTE:
1. The
above appeal by special leave is against the order dated 11.4.1994 passed under
Section 4 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter
referred to as "the Act") by the one member Tribunal comprising of
BM. Lal, J., a Judge of the Allahabad High Court constituted under Section 5 of
the Act, confirming the declaration made by the Central Government in the
notification dated 10.12.1992 issued under sub-section (1) of Section 3 of the
Act that Jamaat-EIslami-Hind is an "unlawful association" as defined
in the said Act. The above writ petition has been filed in addition to the said
appeal, in the alternative, for a declaration that the provisions of the said
Act and the Rules framed thereunder are unconstitutional and ultra vires some
of the fundamental rights guaranteed in the Constitution of India.
2. The
broad submission of Shri Soli J. Sorabjee on behalf of the said association is,
that in the event a construction is made of the provisions of the said Act and
the Rules framed thereunder, which give a reasonable opportunity to the
association to show cause why it should not be declared unlawful, these
provisions would be saved from the vice of unconstitutionality. The alternative
challenge to the constitutionality of the provisions is made, only if such a
construction cannot be made. It is, therefore. appropriate that the proper
construction of these provisions be first made to enable consideration of the
contention in the true perspective.
3. The
material facts are these. The said association, namely, Jamaat-E-Islami Hind,
established in April 1948, is an All India organisation professing a political,
secular and spiritual credentials with belief in the oneness of God and
universal brotherhood. Its activities are said to be for promoting this
objective. A notification dated 10.12.1992 published in the official Gazette
the same day was issued by the Government of India in the Ministry of Home
Affairs, as under:- "MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the
10th December, 1992 S.O. 898(E). - Whereas Shri Sirajul Hasan, Amir of the Jamaat-e-Islami
Hind (hereinafter referred to as JEIH) declared in a meeting at Delhi held on the 27th May, 1990 that the separation of Kashmir from India was inevitable.
And
whereas Shri Abdul Aziz, Naib Amir of JEIH, addressing a meeting at Malerkotla
on the 1st August. 1991, observed that the Government of India should hold
plebiscite on Kashmir;
And
whereas JEIH has been disclaiming and questioning the sovereignty territorial
integrity of India;
And
whereas for all or any of the grounds set out in the preceding paragraphs, as
also on the basis of other facts, and materials in its possession which the
Central Government considers to be against the public interest to disclose, the
Central Government is of the opinion that the JEIH is an unlawful association;
Now,
therefore. in exercise of the powers conferred by sub-section (1) of section 3
of the Unlawful Activities 36 (Prevention) Act, 1967 (37 of 1967), the Central
Government hereby declares the 'Jamaat-e-lslami Hind' to be an unlawful
association, and directs, in exercise of the powers conferred by the proviso to
subsection (3) of that section, that this notification shall, subject to any
order that may be made under section 4 of the said Act, have effect from the
date of its publication in the Official Gazette.
[No.
II/14034/2(i)/92-IS(DV)1 T.N. SRIVASTAVA, Jr. Secy."
4. In
accordance with the proviso to sub-section (3) of Section 3 of the Act, the
notification was brought into effect from the date of its publication in the
Official Gazette. However, the act of bringing into effect the notification
from the date of its publication in the Official Gazette was struck down by the
court and so the notification became effective from the date of its confirmation
by the Tribunal. The Central Government referred the notification to the
Tribunal for the purpose of adjudicating whether or not there is sufficient
cause for declaring the association unlawful, in accordance with sub- section
(1) of Section 4 of the Act. The Tribunal has decided that there is sufficient
cause for declaring the association to be unlawful and, therefore, it has
confirmed the said notification. In the inquiry before the Tribunal, the only
material produced by the Central Government was a resume prepared on the basis
of some intelligence reports and the affidavits of T.N. Srivastava, Joint
Secretary in the Ministry of Home Affairs and N.C. Padhi, Joint Director, lB.,
both of whom spoke only on the basis of the records and not from personal
knowledge. In rebuttal, affidavits were filed on behalf of the association of
persons whose acts, it was alleged, constituted the grounds for issue of the
notification under Section 3(1) of the Act. The deponents of the affidavits
were also cross-examined. This constitutes the entire material on which the
Tribunal rendered its decision on the question of existence of sufficient cause
for declaring the association unlawful. The matter has, therefore, to be
decided on this material alone.
5.
Briefly stated, the submission of Shri Soli J.
Sorabjee,
learned counsel for the appellant-association is that none of the grounds on
which the notification is based, even assuming them to be proved, constitutes
"unlawful activity" as defined in Section 2(f) of the Act to render
the appellant an unlawful association within the meaning of Section 2(g) of the
Act. Learned counsel also submitted that the only material produced at the
inquiry does not constitute legal evidence for the purpose inasmuch as it is,
at best, hearsay and that too without disclosing the source from which it
emanates to give an opportunity to the appellant to effectively rebut the same.
The further submission is that in rebuttal there is legal evidence in the form
of sworn testimony of the persons to whom the alleged activities are attributed
Shri Sorabjee contended that the inquiry contemplated by the Tribunal under the
Act is judicial in nature, which must be in the form of adjudication of a lis
giving a reasonable opportunity to the association to rebut the correctness of
allegations against it, and negative the same. It was urged by Shri Sorabjee
that in the absence of the provisions being so construed, they would suffer
from the vice of unconstitutionality. The writ petition has been filed to
project the alternative argument.
6. The
learned Solicitor General, on -the other hand, contended that this enact- 37 ment
is, in substance, in the nature of a preventive detention law and the Tribunal
constituted under the Act is like an Advisory Board under the preventive
detention law required to examine only the existence of material sufficient to
sustain formation of the opinion of the kind required for preventive detention.
Learned Solicitor General submitted that such opinion can be formed not only on
the basis of legal evidence but also other materials including intelligence
reports received from undisclosed sources. According to the learned Solicitor
General, the requirement of natural justice in such a situation is satisfied by
mere disclosure of the information without disclosing the source of the
information. This submission of the learned Solicitor General is in addition to
the claim of privilege based on public interest available under the general
law.
7. The
Central Government's right to claim privilege against disclosure of certain
information, in public interest, in the manner prescribed by law, is not in
controversy- Confidentiality of matters in respect of which the Central
Government's claim of privilege is upheld by the Tribunal is not questioned.
The question is only of the material in respect of which no such privilege is
claimed in the manner prescribed or of which the claim of privilege is not
upheld by the Tribunal-
8. It
is in this background, the debate regarding the kind of material required for
examining the sufficiency of cause lot declaring the association unlawful in
the inquiry held by the Tribunal, has to be examined. We would now examine the
provisions of the Act and the Rules framed there under. The relevant provisions
of the Act and the Rules are as under:- The Unlawful Activities (Prevention)
Act, 1967 "2. Definitions. - In this Act, unless the context otherwise
requires, - (a) "association" means any combination or body of
individuals;
(b)
"cession of a part of the territory of India" includes admission of the
claim of any foreign country to any such part;
(c)
"prescribed" means prescribed by rules made under this Act;
(d)
"secession of a part of the territory of India from the Union" includes the assertion of any claim to
determine whether such part will remain a part of the territory of India;
(e)
"Tribunal" means the Tribunal constituted under Section 5;
(f)
"unlawful activity", in relation to an individual or association,
means any action taken by such individual or association (whether by committing
an act or by words, either spoken or written, or by signs or by visible
representation or otherwise), - (i) which is intended, or suppOrts any claim,
to bring about, on any ground whatsoever, the cession of a part of the
territory of India or the secession of a part of the territory of India from
the Union, or which incites any individual or group of individuals to bring
about such cession or secession;
(ii) which
disclaims, questions, disrupts or is intended to disrupt the sovereignty and
territorial integrity of India.
38 (g)
"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 such activity; or (ii)
which has for its object any activity which is punishable under Section 153-A
or Section 153-B of the Indian Penal Code, 1860 (45 of 1860), or which
encourages or aids persons to undertake any such activity or of which the
members under take any such activity:
Provided
that nothing contained in sub-clause (ii) shall apply to the State of Jammu and Kashmir.
x x x
CHAPTER
II UNLAWFUL ASSOCIATIONS
3.
Declaration of an association as unlawful. - ( 1 ) If the Central Government is
of opinion that any association is, or has become, an unlawful association, it
may, by notification in the Official Gazette, declare such association to be
unlawful.
(2)
Every such notification shall specify the grounds on which it is issued and
such other particulars as the Central Government may consider necessary:
Provided
that nothing in this sub section shall require the Central Government to
disclose any fact which it considers 10 be against the public interest to
disclose.
(3) No
such notification shall have effect until the Tribunal has, by an order made
under Section 4, continued the declaration made therein and the order is
published in the Official Gazette:
Provided
that if the Central Government is of opinion that circumstances exist which
render it necessary for that Government to declare an association to be
unlawful with immediate effect, it may, for reasons to be stated in writing,
direct that the notification shall, subject to any order that may be made under
Section 4, have effect from the date of its publication in the Official
Gazette.
xxx xxx
xxx
4.
Reference to Tribunal. - (1) When any association has been declared unlawful by
a notification issued under sub-section (1) of Section 3, the Central
Government shall, within thirty days from the date of the publication of the
notification under the said sub-section, refer the notification to the Tribunal
for the purpose of adjudicating whether or not there is sufficient cause for
declaring the association unlawful.
(2) On
receipt of a reference under sub- section (1), the Tribunal shall call upon the
association affected by notice in writing to show cause, within thirty days
from the date of the service of such notice, why the association should not be
declared unlawful.
(3) After
considering the cause, if any, shown by the association or the office-bearers
or members thereof, the Tribunal shall hold an inquiry in the manner specified
in Section 9 and after calling for such further information as it may consider
necessary from the Central Government or from any office-bearer or member of
the association, it shall decide whether or not there is sufficient cause for
declaring the association to be unlaw- 39 ful and make, as expeditiously as
possible and in any case within a period of six months from the date of the
issue of the notification under sub-section (1) of Section 3, such order as it
may deem fit either confirming the declaration made in the notification or cancelling
the same.
(4)
The order of the Tribunal made under sub-section (3) shall be published in the
Official Gazette.
5.
Tribunal. - (1) The Central Government may, by notification in the Official
Gazette, constitute, as and when necessary, a tribunal to be known as the"
Unlawful Activities (Prevention) Tribunal" consisting of one person, to be
appointed by the Central Government:
Provided
that no person shall be so appointed unless he is a Judge of a High Court.
XXX xxX
xXX (5) Subject to the provisions of Section 9, the Tribunal shall have power
to regulate its own procedure in all mailers arising out of the discharge of
its functions including the place or places at which it will hold its sittings.
(6)
The Tribunal shall, for the purpose of making an inquiry under this Act, have
the same powers as are vested in a civil court under the Code of Civil
Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following
matters, namely '- (a) the summoning and enforcing the attendance of any
witness and examining him on oath;
(b) the
discovery and production of any document or other material object producible as
evidence;
(c) the
reception of evidence on affidavits;
(d) the
requisitioning of any public record from any court or office;
(e) the
issuing of any commission for the examination of witnesses.
(7)
Any proceeding before the Tribunal shall be deemed to be a judicial proceeding
within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of
1860) and the Tribunal shall be deemed to be a civil court for the purposes of
Section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (5 of
1898).
6.
Period of operation and cancellation of notification.
- (1 )
Subject to the provisions of sub-section (2), a notification issued under
Section 3 shall, if the declaration made therein is continued by the Tribunal
by an order made under Section 4, remain in force for a period of two years
from the date on which the notification becomes effective.
(2)
Notwithstanding anything contained in sub-section ( 1 ), the Central Government
may, either on its own motion or on the application of any person aggrieved, at
any time cancel the notification issued under Section 3, whether or not the
declaration made therein has been continued by the Tribunal.
7.
Power to prohibit the use of funds of an unlawful association. -
8.
Power to notify places for the purpose of an unlawful association. (1) Where an
association has been declared unlawful by a notification issued under Section 3
which has become effective under sub-section (3) of that Section.
40 the
Central Government may, by notification in the Official Gazette, notify any
place which in its opinion is used for the purpose of such unlawful
association.
Explanation. - For the purposes of this
sub-section, "place" includes a house or building, or part thereof,
or a tent or vessel.
xXX XXX
XXX (3) If, in the opinion of the District Magistrate, any articles specified
in the list are or may be used for the purpose of the unlawful association, he
may make an order prohibiting any person from using the articles save in
accordance with the written orders of the District Magistrate.
XXX XXX
XXX (8) Any person aggrieved by a notification issued in respect of a place
under sub-section (1) or by an order made under sub-section (3) or sub-section
(4) may, within thirty days from the date of the notification or order, as the
case may be, make an application to the Court of the District Judge within the
local limits of whose jurisdiction such notified place is situate - (a) for
declaration that the place has not been used for the purpose of the unlawful
association; or (b) for setting aside the order made under sub-section (3) or
sub-section (4), and on receipt of the application the Court of the District
Judge shall, after giving the parties an opportunity of being heard, decide the
question.
9.
Procedure to be followed in the disposal of applications under this Act. -
Subject to any rules that may be made under this Act, the procedure to be
followed by the tribunal in holding any inquiry under sub-section (3) of Section
4 or by a court of a District Judge in disposing of any application under
sub-section (4) of Section 7 or sub-section (8) of Section 8 shall, so far as
may be, be the procedure laid down in the Code of Civil Procedure, 1908 (5 of
1908), for the investigation of claims and the decision of the Tribunal or the
Court of the District Judge, as the case may be, shall be final.
CHAPTER
II1 OFFENCES AND PENALTIES
10.
Penalty for being members of an unlawful association. - Whoever is and
continues to be a member of an association declared unlawful by a notification
issued under Section 3 which has become effective trader sub-section (3) of
that section, or takes part in meetings of any such unlawful association, or
contributes to, or receives or solicits any contribution for the purpose of,
any such unlawful association, or in any way assists the operations of any such
unlawful association, shall be punishable with imprisonment for a term which
may extend to two years, and shall also be liable to fine.
11. Penalty
for dealing with funds of an unlawful association. - If any person on whom a
prohibitory order has been served under sub-section (1 ) of Section 7 in
respect of any moneys, securities or credits pays, delivers, transfers or
otherwise deals in any manner whatsoever with the same in contravention of the
prohibitory order, he shall be punishable with imprisonment for a term which
may extend to three years, or with fine or with both and notwithstanding
anything contained in the Code of Criminal Procedure. 1898 (5 of 1898), the
court. trying such contravention may also impose on the 41 person convicted an
additional fine to recover from him the amount of the moneys or credit or the
market value of the securities in respect of which the prohibitory order has
been contravened or such part thereof as the court may deem fit.
12.
Penalty for contravention of an order made in respect of a notified place. -
(1) Whoever uses any article in contravention of a prohibitory order in respect
thereof made under sub-section (3) of Section 8 shall be punishable with
imprisonment for a term which may extend to one year, and shall also be liable
to fine.
(2)
Whoever knowingly and wailfully is in, or effects or attempts to effect entry
into, a notified place in contravention of an order made under sub-section (4)
of Section 8 shall be punishable with imprisonment for a term which may extend
to one year, and shall also be liable to fine.
13.
Punishment for unlawful activities. - (1) Whoever- (a) takes part in or
commits, or (b) advocates, abets, advises or incites the commission of, any
unlawful activity, shall be punishable with imprisonment for a term which may
extend to seven years, and shall also be liable to fine.
(2)
Whoever, in any way, assists any unlawful activity of any association, declared
unlawful under Section 3, after the notification by which it has been so
declared has become effective under subsection (3) of that section, shall be
punishable with imprisonment for a term which may extend to five years, or with
fine, or with both.
(3)
Nothing in this section shall apply to any treaty, agreement or convention
entered into between the Government of India and the Government of any other
country or to any negotiations therefor carried on by any person authorised in this
behalf by the Government of India.
14.
Offences to be cognizable. Notwithstanding anything contained in the Code of
Criminal Procedure, 1898 (5 of 1898), an offence punishable under this Act
shall be cognizable." The Unlawful Activities (Prevention) Rules, 1968
"2. Definitions. - In these rules, unless the context otherwise requires,
- (a) "the Act" means the Unlawful Activities (Prevention) Act, 1967
(37 of 1967);
(b)
"section" means a section of the Act;
(c) words
and expressions used in these rules but not defined, and defined in the Act,
shall have the meanings respectively assigned to them in the Act.
3.
Tribunal and District Judge to follow rules of evidence. - (1) In holding an
inquiry under sub-section (3) of Section 4 or disposing of any application
under sub-section (4) of Section 7 or subsection (8) of Section 8, the Tribunal
or the District Judge, as the case may be, shall, subject to the provisions of subrule
(2), follow, as far as practicable, the rules of evidence laid down in the Indian
Evidence Act, 1872 (1 of 1872).
(2)
Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of
1872), where any books of account 42 or other documents have been produced
before the Tribunal or the Court of the District Judge by the Central
Government and such books of account or other documents are claimed by that
Government to be of a confidential nature then, the Tribunal or the Court of
the District Judge, as the case may be, shall not, - (a) make such books of
account or other documents a part of the records of proceedings before it; or
(b) allow inspection of, or grant a copy of, the whole of or any extract from,
such books of account or other documents by or to any person other than a party
to the proceedings before it.
xxx xxx
xxx
5.
Documents which should accompany a reference to the Tribunal. - Every reference
made to the Tribunal under subsection (1 ) of Section 4 shall be accompanied by
- (i) a copy of the notification made under sub- section (1) of Section 3, and
(ii) all the facts on which the grounds specified in the said notification are
based:
Provided
that nothing in this rule shall require the Central Government 10 disclose any
fact to the Tribunal which that Government considers against the public
interest to disclose.
xxx xxx
xxx
14.
Power of Tribunal or District Judge to sit in private.. - Where any request is
made by the Central Government so to do, it shall be lawful for the Tribunal or
the District Judge, as the case may be, to sit in private and to admit at such sitting
such persons whose presence is considered by the Tribunal or the District
Judge, as the case may be, to be necessary for the proper determination of the
matter before it or him."
9.
Clauses (f) and (g) of Section 2 contain definitions of "unlawful
activity" and "unlawful association" respectively. An
"unlawful activity", defined in clause (f), means "any action
taken" of the kind specified therein and having the consequence mentioned.
In
other words, "any action taken" by such individual or association
constituting an "unlawful activity "must have the potential specified
in the definition. Determination of these facts constitutes the foundation for
declaring an association to be unlawful under subsection (1) of Section 3 of
the Act. Clause (g) defines "unlawful association" with reference to
"unlawful activity" in subclause (i) thereof, and in sub-clause (ii)
the reference is to the offences punishable under Section 153-A or Section
153-B of the Indian Penal Code. In sub- clause (ii), the objective determination
is with reference to the offences punishable under Section 153-A or Section
153-B of the I.P.C. while in sub-clause (i) it is with reference to
"unlawful activity" as defined in clause (f).
These
definitions make it clear that the determination of the question whether any
association is, or has become, an unlawful association to justify such
declaration under sub- section (1) of Section 3 must be based on an objective
decision; and the determination should be that ' 'any action taken" by
such association constitutes an "unlawful activity" which is the
object of the association or the object is any activity punishable under
Section 153A or Section 153-B, 1.P.C. It is only on 43 the conclusion so
reached in an objective determination that a declaration can be made by the
Central Government under sub-section (1) of Section 3.
10.
Sub-section (2) of Section 3 requires the notification issued under subsection
(1) to specify the grounds on which it is issued and such other particulars as
the Central Government may consider necessary. This requirement indicates that
performance of the exercise has to be objective together with disclosure of the
basis of action to the association. The proviso to sub-section (2) permits the
Central Government not to disclose any fact which it considers to be against
the public interest to disclose. Ordinarily a notification issued under
sub-section (1) of Section 3 becomes effective only on its confirmation by the
Tribunal by an order made under Section 4 after due inquiry; but in
extraordinary circumstances, which require that it may be brought into effect
immediately, it may be so done for 'reasons to be stated in writing' by the
Central Government, and then also it is subject to any order made by the
Tribunal under Section 4 of the Act. Section 3 requires an objective
determination of the matter by the Central Government and Section 4 requires
confirmation of the act of the Central Government by the Tribunal.
11.
Section 4 deals with reference to the Tribunal. Sub- section (1) requires the
Central Government to refer the notification issued under sub-section (1) of
Section 3 to the Tribunal "for the purpose of adjudicating whether or not
there is sufficient cause for declaring the association unlawful". The purpose
of making the reference to the Tribunal is an adjudication by the Tribunal of
the existence of sufficient cause for making the declaration. The words
"adjudicating" and "sufficient cause" in the context are of
significance. Sub-section (2) requires the Tribunal, on receipt of the
reference, to call upon the association affected 'by notice in writing to show
cause' why the association should not be declared unlawful. This requirement
would be meaningless unless there is effective notice of the basis on which the
declaration is made and a reasonable opportunity to show cause against the
same. Sub- section (3) prescribes an inquiry by the Tribunal, in the manner
specified, after considering the cause shown to the said notice. The Tribunal
may also call for such other information as it may consider necessary from the
Central Government or the association to decide whether or not there is
sufficient cause for declaring the association to be unlawful. The Tribunal is
required to make an order which it may deem fit "either confirming the
declaration made in the notification or cancelling the same". The nature
of inquiry contemplated by the Tribunal requires it to weigh the material on
which the notification under sub-section (1) of Section 3 is issued by the
Central Government, the cause shown by the association in reply to the notice
issued to it and take into consideration such further information which it may
call for, to decide the existence of sufficient cause for declaring the
association to be unlawful. The entire procedure contemplates an objective
determination made on the basis of material placed before the Tribunal by the
two sides; and the inquiry is in the nature of adjudication of a lis between
two parties, the outcome of which depends on the weight of the material
produced by them. Credibility of the material should, ordinarily, be capable of
objective assessment. The 44 decision to be made by the Tribunal is
"whether or not there is sufficient cause for declaring the association
unlawful".
Such a
determination requires the Tribunal to reach the conclusion that the material
to support the declaration outweighs the material against it and the additional
weight to support the declaration is sufficient to sustain it. The test of
greater probability appears to be the pragmatic test applicable in the context.
12.
Section 5 relates to constitution of the Tribunal and its powers. Sub-section
(1) of Section 5 clearly provides that nO person would be appointed
"unless he is a Judge of a High Court". Requirement of a sitting
Judge of a High Court to constitute the Tribunal also suggests that the
function is judicial in nature. Sub-section (7) says that any proceeding before
the Tribunal shall be deemed to be a "judicial proceeding" and the
Tribunal shall be deemed to be a "Civil Court" for the purposes
specified. Section 6 deals with the period of operation and cancellation of
notification. Section 8 has some significance in this context. Sub-section (8)
of Section 8 provides' the remedy to any person aggrieved by a notification
issued in respect of a place under sub-section (1) or by an order made under
sub-section (3) or subsection 4, by an application made to the District Judge
who is required to decide the same after giving the parties an opportunity of
being heard. This also indicates the judicial character of the proceeding even
under Section 8. Section 9 prescribes the procedure to be followed in the
disposal of applications under the Act.
Provisions
of Section 9 of the Act lay down that the procedure to be followed by the
Tribunal in holding an inquiry under sub-section (3) of Section 4 or by the
District Judge under Section 8 shall, so far as may be, be the procedure
prescribed by the Code of Civil Procedure for the investigation of claims.
Sections 10 to 14 in Chapter III relate to "offences and penalties"
which indicate the drastic consequences Of the action taken under the Act
including a declaration made that an association is unlawful. The penal
consequences provided are another reason to support the view that the inquiry
contemplated by the Tribunal under Section 4 of the Act is judicial in
character since the adjudication made by the Tribunal is visited with such
drastic consequences.
13. In
our opinion, the above scheme of the Act clearly brings out the distinction
between this statute and the scheme in the preventive detention laws making
provision therein for an Advisory Board to review the detention. The nature of
the inquiry preceding the order made by the Tribunal under Section 4 of the
Act, and its binding effect, give to it the characteristic of a judicial
determination distinguishing it from the opinion of the Advisory Board under
the preventive detention laws.
14. In
Section 4, the words "adjudicating" and "decide" have a
legal connotation in the context of the inquiry made by the Tribunal
constituted by a sitting Judge of a High Court. The Tribunal is required to
'decide' after 'notice to show cause' by the process of 'adjudicating' the
points in controversy. These are the essential attributes of a judicial
decision.
15. In
Volume 2 of the Words and Phrases, Permanent Edition, by West Publishing Co.,
some of the meanings given of "adjudicate; adjudication" are as
under:- 45 "An "adjudication" essentially plies a hearing by a
court, after notice, of legal evidence on the factual issue involved ......
xxx XXX
XXX Generally, "adjudication" of any question implies submission of
question to a court of record."
16.
Volume 1 of the Shorter Oxford English Dictionary on Historical Principles,
Third edition, says, the word "adjudicate" means "to try and
determine judicially"
17.
The reference to the Tribunal is for the purpose of adjudicating whether or not
there is sufficient cause for declaring the association unlawful. Obviously the
purpose is to obtain a judicial confirmation of the existence of sufficient
cause to support the action taken. The confirmation is by a sitting High Court
Judge after a judicial scrutiny of the kind indicated. This being the nature of
inquiry and the purpose for which it is conducted, the materials on which the
adjudication is to be made with opportunity to show cause given to the
association, must be substantially in consonance with the materials required to
support a judicial determination. Reference may be made at this stage to the
decision in State of Madras v.V.G. Row, [1952] SCR 597 on which both sides
place reliance.
18. In
State of Madras v. V.G. Row, [1952] S.C.R. 597, the question for decision
related to the constitutional validity of a law empowering the State to declare
associations illegal by notification, wherein there was no provision for
judicial inquiry or for service of notification on the association or its
office bearers. The absence of a provision for judicial inquiry and notice to
the association of the basis for the action taken was held to be an
unreasonable restriction on the right to form associations under Article 19(1)(c)
read with Article 19(4) of the Constitution as it then stood. By the
Constitution (Sixteenth Amendment) Act, 1963, the expression "the
sovereignty and integrity of India or" was inserted prior to "public
order or morality" to permit reasonable restrictions to be imposed also
.in the interests of the sovereignty and integrity of India in addition to
those in the interests of public order or morality. The significance, however,
is that in V.G. Row, the absence of a provision for judicial inquiry to scrutinise
the reasonableness of restrictions on the exercise of the right conferred by
sub-clause (c) of clause (1) of Article 19 was the ground on which the law was
held to be constitutionally invalid. The test of reasonableness of the
restrictions imposed was indicated thus :- "........ It is important in
this context to bear in mind that the test of reasonableness, wherever
prescribed, should be applied to each individual statute impugned, and no
abstract standard, or general pattern of reasonableness can be laid down as
applicable to all cases. The nature of the right alleged to have been
infringed, the underlying purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time, should all enter into the
judicial verdict ............
"
(at page 607) The argument of the learned Attorney General in V.G. Row placing
reliance on the decision in Dr. N.B. Khare v. The State of 46 Delhi, [1950]
S.C.R. 519, wherein the subjective satisfaction of the Government regarding the
necessity for the externment of a person coupled with a reference of the matter
to an Advisory Board was considered to be reasonable procedure for restricting
the right conferred by Article 19(1)(b), was rejected. A distinction was drawn
between the requirement for preventive detention or externment of a person with
declaration of an association to be unlawful on the ground that the former was
anticipatory or based on suspicion whereas the latter was based on grounds
which are factual and capable .of objective determination by the Court. This
distinction was emphasised as under:- " ...... These grounds, taken by themselves,
are factual and not anticipatory or based on suspicion. An association is
allowed to be declared unlawful because it "constitutes" a danger or
"has interfered or interferes" with the maintenance of public order
or "has such interference for its object", etc. The factual existence
of these grounds is amenable to objective determination by the court,
.......... " (emphasis supplied) (at page 609) " ......... For all
these reasons the decision in Dr. Khare's case, [1950] S.C.R. 519, is
distinguishable and cannot rule the present case as claimed by the learned
Attorney General. Indeed, as we have observed earlier, a decision dealing with
the validity of restrictions imposed on one of the rights conferred by article
19(1) cannot have much value as a precedent for adjudging the validity of the
restrictions imposed on another right, even when the constitutional criterion
is the same, namely, reasonableness, as the conclusion must depend on the
cumulative effect of the varying facts and circumstances of each case." (at
page 611 )
19. In
our opinion, the test of factual existence of grounds amenable to objective
determination by the court for adjudging the reasonableness of restrictions
placed on the right conferred by Article 19(1)(c) to form associations, in the
scheme of the Unlawful Activities (Prevention) Act, 1967, is equally applicable
in accordance with the decision in V.G. Row It is, therefore, this test which
must determine the meaning and content of the adjudication by the Tribunal of
the existence of sufficient cause for declaring the association to be unlawful
under the Act. A different construction to equate the requirement of this Act
with mere subjective satisfaction of the Central Government, when the power to
declare an association to be unlawful depends on the factual existence of the
grounds which are amenable to objective determination, would result in denuding
the process of adjudication by the Tribunal of the entire meaning and content
of the expression "adjudication' '
20. As
earlier mentioned, the requirement of specifying the grounds together with the
disclosure of the facts on which they are based and an adjudication of the
existence of sufficient cause for declaring the association to be unlawful in
the form of decision after considering the cause, if any, shown by the
association in response to the show cause notice issued to it, are all
consistent only with an objective determination of the points in controversy in
a judicial scrutiny conducted by a Tribunal constituted by a sitting High Court
Judge, 47 which distinguishes the scheme under this Act with the requirement
under the preventive detention laws to justify the anticipatory action of
preventive detention based on suspicion reached by a process of subjective
satisfaction.
The
scheme under this Act requiring adjudication of the controversy in this manner
makes it implicit that the minimum requirement of natural justice must be
satisfied, to make the adjudication meaningful. No doubt, the requirement of
natural justice in a case of this kind must be tailored to safeguard public
interest which must always outweigh every lessor interest. This is also evident
from the fact that the proviso to sub-section (2) of Section 3 of the Act
itself permits the Central Government to withhold the disclosure of facts which
it considers to be against the public interest to disclose. Similarly, Rule
3(2) and the proviso to Rule 5 of the Unlawful Activities (Prevention) Rules,
1968 also permit nondisclosure of confidential documents and information which
the Government considers against the public interest to disclose. Thus, subject
to the non-disclosure of information which the Central Government considers to
be against the public interest to disclose, all information and evidence relied
on by the Central Government to support the declaration made by it of an
association to be unlawful, has to be disclosed to the association to enable it
to show cause against the same.
Rule 3
also indicates that as far as practicable the rules of evidence laid down in
the Indian Evidence Act, 1872 must be followed. A departure has to be made only
when the public interest so requires. Thus, subject to the requirement of
public interest which must undoubtedly outweigh the interest of the association
and its members, the ordinary rules of evidence and requirement of natural
justice must be followed by the Tribunal in making the adjudication under the
Act.
21. To
satisfy the minimum requirements of a proper adjudication, it is necessary that
the Tribunal should have the means to ascertain the credibility of conflicting
evidence relating to the points in controversy. Unless such a means is
available to the Tribunal to determine the credibility of the material before
it, it cannot choose between conflicting material and decide which one to
prefer and accept. In such a situation, the only option to it would be to
accept the opinion of the Central Government, without any means to test the
credibility of the material on which it is based. The adjudication made would
cease to be an objective determination and be meaningless, equating the process
with mere acceptance of the ipse dixit of the Central Government. The
requirement of adjudication by the Tribunal contemplated under the Act does not
permit abdication of its function by the Tribunal to the Central Government
providing merely its stamp of approval to, the opinion of the Central
Government. The procedure to be followed by the Tribunal must, therefore, be
such which enables the Tribunal to itself assess the credibility of conflicting
material on any point in controversy and evolve a process by which it can
decide whether to accept the version of the Central Government or to reject it
in the light of the other view asserted by the association. The difficulty in
this sphere is likely to arise in relation to the evidence or material in
respect of which the Central Government claims non-disclosure on the ground of
public interest.
22. It
is obvious that the unlawful 48 activities of an association may quite often be
clandestine in nature and, therefore, the source of evidence of the unlawful
activities may require continued confidentiality in public interest. In such a
situation, disclosure of the source of such information, and, may be, also lull
particulars thereof, is likely to be against the public interest. The scheme
of' the Act and the procedure for inquiry indicated by the Rules framed thereunder
provide for maintenance of confidentiality, whenever required in public
interest. However, the non-disclosure of sensitive information and evidence to
the association and its office bearers, whenever justified in public interest,
does not necessarily imply its non-disclosure to the Tribunal as well. In such
cases where the Tribunal is satisfied that non-disclosure of such information
to the association or its office bearers is in public interest, it may permit
its non- disclosure to the association or its office bearers, but in order to
perform its task of adjudication as required by the Act, the Tribunal can look
into the same for the purpose of assessing the credibility of the information
and satisfying itself that it can safely act on the same. In such a situation,
the Tribunal can devise a suitable procedure whereby it can itself examine and
test the credibility of such material before it decides to accept the same for
determining the existence of sufficient cause for declaring the association to
be unlawful, The materials need not be confined only to legal evidence in the
strict sense. Such a procedure would ensure that the decision of the Tribunal
is an adjudication made on the points in controversy after assessing the
credibility of the material it has chosen to accept, without abdicating its
function by merely acting on the ipse dixit of the Central Government. Such a
course would satisfy the minimum requirement of natural justice tailored to
suit the circumstances of each case, while protecting the rights of the
association and its members.
'without
jeopardising the public interest. This would also ensure that the process of
adjudication is not denuded of its content anti the decision ultimately
rendered by the Tribunal is reached by it on all points in controversy after
adjudication and not by mere acceptance of the opinion already formed by the
Central Government.
23. In
John J. Morrissey and (7. Donald Booher v. Lou B. Brewer, 33 L.Ed. 2d 484, the
United States Supreme Court, in a case of parole revocation, indicated the
minimum requirements to be followed, as under:
"
..... Our task is limited to deciding the minimum requirements of due process.
They include (a) written notice of the claimed violations of parole; (b)
disclosure to the parolee of evidence against him; (c) opportunity to be heard
in person and to present witnesses and documentary., evidence;
(d)
the right to confront and cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing confrontation); (e) a '
'neutral and detached" hearing body such as a traditional parole board,
members of which need not be judicial officers or lawyers; and (f) a written
statement by the fact finders as to the evidence relied on and reasons for
revoking parole. We emphasize there is no thought to equate this second stage
of parole revocation to a criminal prosecution in any sense. It is a narrow
inquiry; the process should be flexible enough to consider evidence including
letters, affidavits, and other material that would not be admissible in an
adversary criminal trial." (emphasis supplied) (at pages 498-499) 49
24. In
Paul Ivan Birzon v. Edward S. King, 469 F.2d. 1241 (1972), placing reliance on
Morrissey, while dealing with a similar situation, when confidential
information had to be noted on, it was indicated that the credibility issue
could be resolved by the Board retaining confidentiality of the information but
assessing the credibility itself; and a modified procedure was indicated as
under:- ". ...... the board was required to decide whether it would
believe the informants or the parolee and his witnesses. The infirmity that we
see in the hearing and dctemination by the parole board is that it resolved the
credibility issue solely on the basis of the state report, without itself
taking the statements from the informants.
Thus
the board had no way of knowing how reliable the informants were and had no
real basis on which to resolve the credibility issue against time parolee .....
We do
not mean to intimate that the board should have taken testimony from the
informants at the hearing and given the parolee the opportunity to
cross-examine.
What
we do mean is that the board should have received the information directly from
the informants (although not necessarily in the presence of the parolee),
instead of relying solely on the state report.* The board could then have
reached its own conclusions about the relative reliability of the informants'
statements and those of the parolee and his witnesses.
Similarly,
the board could then have made its own decision about how realistic were the
claims of potential danger to the informants or to state paro1e officers if
their identity was disclosed, instead of placing exclusive reliance_on the
state report. Thus, we hold that in relying exclusively on the written synopsis
in the state report, which was the only' evidence of a parole violation, in the
face of the parolee's denial and his presentation of the testimony of other
witnesses, the revocation of Satz's parole was fundamentally unfair to him and
was a denial of due process of law." (at pages 1244-.1245)
25.
Such a modified procedure while ensuring confidentiality of such information
and its source, in public interest, also enables the adjudicating authority to
test the credibility of the confidential information for the purpose of
deciding whether it has to be preferred to the conflicting evidence of the
other side. This modified procedure satisfies the minimum requirements of
natural justice and also retains the basic clement of' an adjudicatory process
which involves objective determination of the factual basis of the action
taken.
26. An
authorised restriction saved by Article 19(4) on the freedom conferred by
Article 19(1)(c) of the Constitution has to be reasonable. In this statute,
provision is made for the notification to become effective on its confirmation
by a Tribunal constituted by a sitting High Court Judge, on adjudication, after
a show cause notice to the association, that sufficient cause exists for
declaring it to be unlawful. The provision for adjudication by judicial
scrutiny, after a show cause notice, of existence of sufficient cause to
justify the declaration must necessarily imply and import into the inquiry, the
minimum requirements of natural justice to ensure that the decision of the
Tribunal is its own opinion, formed on the entire available material, and not a
mere imprimatur of the Tribunal affixed to the opinion of the Central
Government.
Judi--
50 cial scrutiny implies a fair procedure to prevent the vitiating element of
arbitrariness. What is the i'air procedure in a given case, would depend on the
materials constituting the factual foundation of the notification and the
manner in which the Tribunal can assess its; true worth.
This
has to be determined by the Tribunal keeping in view the nature of its
scrutiny, the minimum requirement of natural justice, the fact that the
materials in such matters arc not confined to legal evidence in the strict
sense, and that the scrutiny is not a criminal trial. The Tribunal should form
its opinion on all the points in controversy after assessing for itself the
credibility of the material relating to it, even though it may not be disclosed
to the association, if the public interest so requires.
27. It
follows that, ordinarily, the material on which the Tribunal can place reliance
for deciding the existence of sufficient cause to support the declaration, must
be of the kind which is capable of judicial scrutiny. In this context, the
claim of privilege on the ground of public interest by the Central Government
would be permissible and the Tribunal is empowered to devise a procedure by
which it can satisfy itself of the credibility of the material without
disclosing the same to the association, when public interest so requires. The
requirements of natural justice can be suitably modified by the Tribunal to
examine the material itself in the manner it considers appropriate, to assess
its credibility without disclosing the same to the association. This modified
procedure would satisfy the minimum requirement of natural justice and judicial
scrutiny. The decision would then be that of the Tribunal itself.
28. On
the above construction made of the provisions of the Act, the alternative
argument relating to constitutionality does not merit consideration
29.
Having indicated the requirements of a valid adjudication by the Tribunal made
under the Act, we now proceed to examine the merits of this case.
30.
The allegations made by the Central Government against the association Jamaat-E-Islami
Hind - were totally denied. It was, therefore, necessary that the Tribunal
should have adjudicated the controversy in the manner indicated. Shri Soli J. Sorabjee,
learned counsel for the association, Jamaat-E-Islami Hind, contended that apart
from the allegations made being not proved, in law such acts even if proved, do
not constitute "unlawful activity" within the meaning of that
expression defined in the Act. In the present case, the alternative submission
of Shri Sorabjee does not arise for consideration on the view we arc taking on
his first submission. The only material produced by the Central Government to
support the notification issued by it under Section 3(1) of the Act, apart from
a resume based on certain intelligence reports, are the statements of Shri T.N.
Srivastava, Joint Secretary, Ministry of Home Affairs and Shri N.C. Padhi,
Joint Director, lB. Neither Shri Srivastava nor Shri Padhi has deposed to any
fact on the basis of personal knowledge. Their entire version is based on
official record. The resume is based on intelligence reports submitted by
persons whose names have not been disclosed on the ground of confidentiality.
In other words, no person has deposed from personal knowledge whose veracity
could be tested by cross examination. Assuming that it was not in public
interest to disclose the identity of those persons or to produce them for
cross- 51 examination by the other side, some method should have been adopted
by the Tribunal to test the credibility of their version. The Tribunal did not
require production of those persons before it, even in earners, to question
them and test the credibility of their version. On the other hand, the persons
to whom the alleged unlawful acts of the association are attributed filed their
affidavits denying the allegations and also deposed as witnesses to rebut these
allegations. In such a situation, the Tribunal had no means by which it could
decide objectively, which of the two conflicting versions to accept as
credible. There was thus no objective determination of the factual basis for
the notification to amount to adjudication by the Tribunal, contemplated by the
statute. The Tribunal has merely proceeded to accept the version of the Central
Government without taking care to know even itself the source from which it
came or to assess credibility of the version sufficient to inspire confidence
justifying its acceptance in preference to the sworn denial of the witnesses
examined by the other side. Obviously, the Tribunal did not properly appreciate
and fully comprehend its role in the scheme of the statute and the nature of
adjudication required to be made by it. The order of the Tribunal cannot,
therefore, be sustained.
31. In
this view of the matter, the challenge to the constitutionality of the said Act
made in the writ petition does not survive.
32.
Needless to say, our conclusion on the appeal is based upon the material placed
before the Tribunal and its treatment of it. Our conclusion shall not be taken
to debar action under the said Act against the association hereafter if the
necessary material is available
33.
Consequently, the civil appeal is allowed. The order dated 11.4.1994 passed by
the Tribunal is quashed. The writ petition is dismissed.
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