Jamaat-E-Islami Hind Vs. Union of
India [1994] INSC 647 (7 December 1994)
VERMA, JAGDISH SARAN (J) VERMA, JAGDISH SARAN
(J) BHARUCHA S.P. (J) PARIPOORNAN, K.S.(J)
CITATION: 1995 SCC (1) 428 JT 1995 (1) 31
1994 SCALE (5)107
ACT:
HEADNOTE:
The Judgment of the Court was delivered by
J.S. VERMA, J.-
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 B.M. 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- 1 2-1992 issued under sub-section (1) of Section 3 of the Act that Jamaat-E-Islami-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 apolitical,
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 SO 898(E). Whereas Shri Sirajul Hasan, Amir
of the Jamaat-EIslami 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;
434 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 and 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
(Prevention) Act, 1967 (37 of 1967), the Central Government hereby declares the
'Jamaat-E-Islami Hind' to be an unlawful association, and directs, in exercise
of the powers conferred by the proviso to sub- section (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. 11/14034/2(i)/92-IS(DV)] T.N.
SRIVASTAVA, Jt. 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, IB, 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 435 "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 enactment 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 for 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;
436 (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;
(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 undertake any such activity:
Provided that nothing contained in sub-clause
(ii) shall apply to the State of Jammu and Kashmir.
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:
437 Provided that nothing in this sub-section
shall require the Central Government to disclose any fact which it considers to
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, confirmed 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.
4.Reference to Tribunal.-(1) Where 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 unlawful 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.
438 (5)Subject to the provisions of Section
9, the Tribunal shall have power to regulate its own procedure in all matters
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 confirmed 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
confirmed by the Tribunal.
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, 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.
(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, 439 he may make an order prohibiting any
person from using the articles save in accordance with the written orders of
the District Magistrate.
(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 subsection (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 III 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 under 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 subsection (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 440 such contravention may also impose on the 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 willfully 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
sub-section (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 meaning 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 sub-section
(8) of Section 8, the Tribunal or the District Judge, as the case may be, shall
441 subject to the provisions of sub-rule (2), follow as far as practicable,
the rules of evidence laid down in the Indian Evidence Act, 1872.
(2)Notwithstanding anything contained in the Indian
Evidence Act, 1872, where any books of account 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.
5.Documents which should accompany a
reference to the Tribunal.- Every reference made to the Tribunal under
sub-section (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 to disclose any fact to the Tribunal which that
Government considers against the public interest to disclose.
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 sub-section (1) of Section 3 of the Act.
Clause (g) defines "unlawful association" with reference to
"unlawful activity" in sub-clause (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 IPC while in sub-clause (i) it is 442 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 153-A or Section 153-B IPC. It
is only on 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 sub-section (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 subsection (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 443 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 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. Subsection (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 444 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:
"An 'adjudication' essentially implies a
hearing by a court, after notice, of legal evidence on the factual issue
involved.
Generally, 'adjudication' of any question
implies submission of question to a court of record." 16.Volume I of the
Shorter Oxford English Dictionary on Historical Principles, 3rd Edn., 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. VG.
Row 1 on which both sides place reliance.
18.In State of Madras v. VG. Row1 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 1 1952 SCR 597: AIR 1952 SC 196 445 public order or morality.
The significance, however, is that in VG. Row1 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: (SCR p.
607) "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." The argument of the learned Attorney General in VG.
Row1 placing reliance on the decision in N.B. Khare (Dr) v. State of Delhi2
wherein the subjective satisfaction of the Government regarding the necessity
for the externment of a person coupled with a reference of the matte r 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: (SCR pp.
609 and 61 1) "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) For all these reasons the
decision in Dr Khare case2, 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."
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 2 1950 SCR 519: AIR 1950 SC 211 446 associations, in
the scheme of the Unlawful Activities (Prevention) Act, 1967, is equally
applicable in accordance with the decision in VG. 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, 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 lesser interest.
This is also evident from tile 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
non-disclosure 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, 1 872
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 447 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
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 full 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 there under 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 lion-disclosure to
the Tribunal as well. In such cases where the Tribunal is satisfied that
nondisclosure 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 448
jeopardising the public interest. This would also ensure that the process of
adjudication is not denuded of its content and 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 G. Donald Booher
v. Lou B. Brewer3 the United States Supreme Court, in a case of parole
revocation, indicated the minimum requirements to be followed, as under: (L Ed
pp. 498-99) "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 factfinders as to the
evidence relied on and reasons for revoking parole. We emphasise 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)
24. In Paul Ivan Birzon v. Edward S. King4
placing reliance on Morrissey3, while dealing with a similar situation, when
confidential information had to be acted 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 determination 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 the 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 3 408 US 471 : 3 3 L Ed
2d 484 (1972) 4 469 F 2d 1241, 1244-45 (1972) 449 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 parole 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." 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 element 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 requirement 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. Judicial scrutiny implies a fair
procedure to prevent the vitiating element of arbitrariness. What is the fair
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 are 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 450 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 are 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, IB. 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-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 camera, 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 451 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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