Mohammad
Jafar Vs. Union of India [1994] INSC 187 (18 March 1994)
Sawant,
P.B. Sawant, P.B. Mohan, S. (J)
CITATION:
1994 SCC Supl. (2) 1 JT 1994 (2) 597 1994 SCALE (2)267
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by SAWANT, J.- The petitioner in the writ
petition is the Secretary-General of Jamat-e-Islami Hind (JEIH) which is an All
India organisation. Appellants in the civil appeal are the Presidents of Bihar Zone and Patna Circle of the said JEIH. On 10-12-1992, the Central Government issued
a notification declaring the JEIH an unlawful association under sub-section (1)
of Section 3 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter
referred to as 'the Act') and also gave immediate effect to the notification in
exercise of the powers conferred by the proviso to sub-section (3) of Section 3
of the Act. The challenge in the present writ petition and the appeal has been
restricted to the exercise of the powers under the proviso to sub-section (3)
of Section 3. The controversy, therefore, lies in a narrow compass.
2. The
scheme of the Act so far as it is relevant for our present purpose is as
follows. Under sub-section (1) of Section 3 the Central Government is empowered
to declare any association as unlawful, by notification in the Official
Gazette, which association in its opinion is or has become unlawful. Section
2(a) defines 'association' to mean "any combination or body of
individuals". Section 2(f) defines 'unlawful activity' in relation to an
individual or association to mean "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".
Section
2(g) defines 'unlawful association' to mean "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".
3.
Section 3(2) requires that the notification issued under Section 3(1) shall
specify the grounds on which it is issued and such other particulars as the
Central Government may consider necessary. The proviso to sub-section (2) of
the said section states that nothing in the said sub-section shall require the
Central Government to disclose any fact which it considers to be against the
public interest to disclose. Sub-section (3) of Section 3 states that 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.
The
proviso to sub-section (3) of the said section which falls for consideration
before us then states as follows :
"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
4.
Section 4 makes a provision requiring the Central Government to refer the
notification declaring an association unlawful, to the Tribunal within 30 days
from the date of the publication, for the purpose of adjudicating whether or
not there is sufficient cause for declaring the association unlawful.
Sub-section (2) of Section 4 requires the Tribunal on receipt of the reference
to call upon such association to show cause within 30 days from the date of the
service of the show-cause notice, why the association should not be declared
unlawful. Sub-section (3) of Section 4 then requires the Tribunal to consider
the cause, if any, shown by the association or its office-bearers or members,
and to hold an inquiry in the manner specified in Section 9 of the Act and to
adjudicate the issue as to whether there is sufficient cause or not for
declaring the association to be unlawful, 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, and make such order as it
deems fit either confirming the declaration made in the notification or cancelling
the same.
The
order so made by the Tribunal has to be published in the Official Gazette as
required by sub-section (4) of the said section.
5. The
adjudicating tribunal known as the 'Unlawful Activities (Prevention) Tribunal'
consisting of one person to be appointed by the Central Government is
constituted as per the provisions of Section 5 of the Act. The person
constituting the Tribunal has to be a Judge of the High Court. Sub-section (5)
of Section 5 gives power to the Tribunal to regulate its own procedure in all
matters arising out of the discharge of its functions. Sub-section (6) of the
said section read with Section 9 vests the Tribunal with the power of the civil
court as laid down in the Code of Civil Procedure for the purpose of holding
the inquiry.
6.
Section 10 visits any person who is or continues to be a member of an
association which is declared unlawful or takes part in the meeting of such
association or contributes or receives or solicits any contribution for the
purpose of such association or in any way assists the operations of such
association, with punishment of an imprisonment for a term which may extend to
two years, and also with fine.
Section
11 likewise imposes a penalty for dealing with the funds of such association
while Section 13 imposes punishment on anyone who takes part in or commits, or
advocates, abets, advises or incites the commission of any unlawful activity in
any way, of such association. It is not necessary to refer to any other
provision of the Act for our present purpose.
7. The
impugned notification reads as follows :
"Whereas
Shri Sirajul Hasan, Amir of the Jamaat-e-Islami Hind (hereinafter referred to
as JEIH) declared in a meeting at Delhi held on 275-1990 that the separation of Kashmir from India was inevitable;
And
whereas Shri Abdul Aziz, Naib-Amir of JEIH, addressing a meeting at Malerkotla
on 1- 8-199 1, 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 5 interest to disclose,
the Central Government is of the opinion that the JEIH is ail 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." It is apparent from the
notification that no additional reasons have been given for declaring the JEIH
as an unlawful association with immediate effect, viz., from the date of the
publication of the notification. In other words, the Central Government does
not give any further or added reasons for immediacy. On the contrary, it relies
on the same reasons which are stated in the notification for taking immediate
action under the proviso to sub-section (3) of Section 3 which prompted it to
declare JEIH as unlawful under subsection (1) of Section 3. Before us also, it
is not the case of the Union of India that it has some facts and material in
its possession to declare it unlawful with immediate effect in addition to the
facts and material for taking action against JEIH under subsection (1) of
Section
3. The
question, therefore, is whether the Central Government has to have facts and
material showing the need for immediate action under the proviso to sub-section
(3) of Section 3 which are in addition to and distinct from those which are
necessary for taking action under sub-section (1) of Section 3. We may here
reproduce sub-sections (1), (2) and (3) of Section 3. They read as under :
"(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 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."
8. An
analysis of the aforesaid provisions shows that for the purpose of declaring an
association unlawful, the Central Government has to have material on the basis
of which it forms its opinion that the association is or has become unlawful.
The declaration is to be made by a notification. Such a notification has to
specify the grounds on which the declaration is made and also such other
particulars as the Central Government may consider necessary. The proviso to 6 sub-section
(2) of Section 3 only enacts the usual privilege clause which entities the
Central Government not to disclose such fact as it considers to be against the
public interest to disclose. The main provision of sub-section (3) then makes
it clear that such a notification shall not have effect until the Tribunal
after a due adjudication has confirmed the notification. As pointed out above,
there is enough time-lag between the date of the issue of notification under
Section 3(1) and the date of the publication of the order of the Tribunal under
Section 4(4).
The
proviso vests the Central Government with a power to declare an organisation
unlawful with immediate effect.
This
means that all its activities come to an end the moment the notification is
issued under Section 3(1) even without waiting for the due adjudication of the
Tribunal under Section 4. It has obviously a situation in mind which cannot
brook delay and await the outcome of the adjudication. The proviso, therefore,
envisages a situation which has to be remedied urgently and cannot be met
except by putting an end to the activities of the organisation with immediate
effect.
The
legislative intention to that effect is also clear otherwise. The proviso
requires firstly that the Government must be of opinion (i) that circumstances exist
which render it necessary for the Government to declare the association to be
unlawful with immediate effect and (ii) the reasons for such declaration must
be stated in writing. The language of the said proviso is different from the
language of sub-section (1) of Section 3 which merely states that the
Government has to be of opinion that any association is or has become an
unlawful association. The very fact further that the legislature has provided a
machinery in the form of the Tribunal to hold a full-fledged inquiry to
adjudicate on the issue whether the notification issued under Section 3(1)
should be confirmed or cancelled, shows that the legislature has no intention
of banning an organisation and its activities without giving it a due
opportunity to show cause and represent its case fully. It must be remembered
in this connection that Article 19(1 )(c) of the Constitution incorporates one
of the precious freedoms of the citizens, viz., to form associations or unions.
The provisions of the Act banning an organisation with immediate effect without
giving it an opportunity to represent its case would be violative of the
Constitution being in breach of the provisions of the said article, unless such
ban has been covered by the exception enacted by clause (4) of the said
article. It cannot be over emphasised that the invocation of the proviso to
sub-section (3) of Section 3 has a drastic effect of curtailing the freedom
under Article 19(1)(c) with immediate effect. If such a ban is imposed
arbitrarily it would operate till at least the date of the publication of the
Tribunal's order under Section 4(4). Thus the action taken under the proviso
amounts to suspension of the citizens' right under Article 19(1)(c), for the
period in question. Even a temporary suspension of the fundamental right, unless
it is covered by the exception provided under Article 19(4), would be invalid
in law. Hence it is necessary that the Central Government justifies its action
under the said proviso by bringing it within the exception of Article 19(4).
Thus both by the language of the said proviso as well as by the requirement of
the Constitution, it is necessary for the Central Government to justify by
adducing proper reasons, the immediacy by bringing it within the purview of
Article 19(4) which reads as follows:
"19.
Protection of certain rights regarding freedom of speech, etc.- 7 (4) Nothing
in sub-clause (c) of the said clause shall affect the operation of any existing
law insofar as it imposes, or prevent the State from making any law imposing,
in the interests of the sovereignty and integrity of India or public order or
morality, reasonable restrictions on the exercise of the right conferred by the
said sub-clause."
9.
Article 19(4) thus requires that the immediate action contemplated by the said
proviso is "in the interests of the sovereignty and integrity of India or public order or morality".
The article further requires the restrictions imposed even for the said
purpose, to be reasonable.
10.
The notification in question admittedly does not give any reasons for the
immediate ban in exercise of the power under the proviso to Section 3(3). The
reasons given as stated above are the same as are meant for imposing ban under
sub-section (1) of Section 3. Those reasons, as quoted above, are
(a) that
Shri Sirajul Hasan, Amir of the Jamaat-e-Islami Hind declared in a meeting at Delhi held on 27-5-1990 that the separation of Kashmir from India was inevitable,
(b) that
Shri Abdul Aziz, Naib-Amir of JEIH, addressing a meeting at Malerkotla on 1-8-1991, observed that the Government of India should hold
plebiscite on Kashmir,
(c) that
the JEIH has been disclaiming and questioning the sovereignty and territorial
integrity of India, and
(d) other
facts and materials in the possession of the Central Government which it
considers to be against the public interest to disclose.
As
regards the first two grounds, they are obviously stale one of 27-5-1990 and the other of 1-8-1991 and they cannot justify immediacy
on 10-12-1992 when the impugned notification was
issued. The language of the third ground shows that the association has been
indulging in the acts stated therein publicly from its inception or at least
for a long time which again negatives the need for immediate ban. As for the
last ground, viz., other facts and material in the possession of the
association which the Central Government considers to be against the public
interest to disclose, no privilege is claimed before us, against such other
facts and material.
If it
was claimed, the court would have looked into them and decided the question of
privilege.
11. Shri
Tulsi, the learned Additional Solicitor General contended that the expression
"for reasons to be stated in writing" did not necessarily mean that
the reasons have to be stated in the notification. It is enough if the reasons
are noted on the file of the case. We are unable to agree with the learned
counsel. The expression "to state" is obviously different from the
expression "to record". The word 'state' is defined in New Collins
Concise Dictionary to mean "... 19. to declare, formally or publicly......
It is defined in Shorter Oxford English Dictionary (3rd Edn.) as "... 5. To
declare in words; to represent (a matter) in all the circumstances of
modification; to set out fully or in a definite form 1647. b. To specify......
12. In
Black's Law Dictionary (5th Edn.) as "To express the particulars of a
thing in writing or in words; to set down or set forth in detail; to aver,
allege, or declare. To set down in gross; to mention in general terms, or by
way of reference; to refer". "To state" therefore, has a
distinct connotation of informing the party for whom the statement is meant. No
one makes a statement to himself. Hence, the Act requires that either it has to
be stated in the notification or in a communication accompanying the
notification or simultaneously issued with the notification or addressed to the
affected association. Reasons which are "recorded" in file are not
reasons which are stated for the benefit of the 8 aggrieved party. The
intention of the legislature is that the aggrieved party must know the reasons
why the grave step of banning it is taken without giving it an opportunity to
be heard. If the reasons are non-existent or irrelevant, the association has a
right to challenge the same by showing cause against it. The fundamental right
of the citizens and the associations cannot be taken away even temporarily for
reasons which are not known to the individual or the association. The counter
filed by the Government also states what Shri Tulsi has argued before us, viz........
there
are sufficient grounds and materials in the possession of the Government and
some of the reasons have been mentioned in the notification itself'. It is
stated that the reasons exist in the Government file. Some of these reasons,
according to the counter, have been stated in the notification as well. It is
further submitted that all facts and materials have been duly furnished to
JEIH. They were furnished with the statements against them and they have filed
their counter-affidavit before the Tribunal. The Tribunal, according to the
learned counsel, will decide the matter, in due course.
13. In
this connection, we may refer to CB. Gautam v. Union of India' where the case
arose out of an order for compulsory purchase of immovable property under the
provisions of Section 269-UD of the Income Tax Act. What fell for consideration
was the expression "for reasons to be recorded in writing" used in
Section 269-UD(1). The Court referred to the provisions of Section 269UD(2)
which casts an obligation on the authority to cause a copy of its order under
sub-section (1) to be served on the transferee. The Court, therefore, held as
follows: (SCC p. 105, para 32) "It is, therefore, inconceivable that the
order which is required to be served by the appropriate authority under
subsection (2) would be the one which does not contain the reasons for tile
passing of the order or is not accompanied by the reasons recorded in writing.
It may be permissible to record reasons separately but the order would be an
incomplete order unless either the reasons are incorporated therein or are
served separately along with the order on the affected party.
We
are, of the view, that reasons for the order must be communicated to the
affected party."
14.
The present petition was filed on 13-1-1993. In the documents supplied to the
petitioner and appellants before us, there is no material which makes out a
case for immediate ban under the said proviso. The material is the same for the
ban under Section 3(1). As stated earlier, for justification of the immediate
ban under the proviso in question, something distinct and different which calls
for the urgent step has to be in possession of the Central Government and the
same has to be communicated to the association. In this connection, it needs
emphasis that the need for communication of such reasons is all the more
because of the provisions of Sections 10, 11 and 13 which visit with the
penalty for being members of an unlawful association, for dealing with funds of
such association, and prescribes punishment for the unlawful activities of such
persons, respectively.
15. We
are, therefore, of the view that the Government has failed to justify the
immediate ban imposed on Jamaat-e- Islami Hind under the proviso to Section 3(3)
of the Act.
Accordingly
the part of the notification, viz., "and directs, in exercise of the
powers conferred by the proviso to sub-section (3) of 1 (1993) 1 SCC 78 9 that
section, that this notification shall.. have effect from the date of its publication
in the Official Gazette", is bad in a law and is struck down. We express
no opinion on the validity of the rest of the notification which is the
subject-matter of adjudication before the Tribunal.
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