Permanent Imprint Leading Cases

Declaration by Central Government that an organisation is an unlawful Association

Jamaat-E-Islami Hind v. Union of India, (1995) 1 SCC 428: 1994 (5) SCALE 107

This appeal by special leave was against the order dated
11-4-1994 passed under section 4 of the Unlawful Activities (Prevention) Act, 1967 (the Act) by the Tribunal constituted under section 5 of the Act, confirming the declaration made by the Central Government in the notification dated 10-12-1992 issued under section 3(1) of the Act that Jamaat-E-Islami-Hind is an “unlawful association” as defined in the said Act. A writ petition was also 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.

1. Constitutionality of the Unlawful Activities (Prevention) Act, 1967.

2. Sustainability in law of the order dated 11-4-1994 by the Tribunal confirming the declaration of the Central Government that the Jamaat-E-Islami-Hind is an “unlawful association”.

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.

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. 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. ……….The inquiry contemplated by the Tribunal under section 4 of the Act is judicial in character.

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.

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, I.B., neither of whom 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. 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. However the challenge to the constitutionality of the Act made in the writ petition does not survive.

The Unlawful Activities (Prevention) Act, 1967 is constitutionally valid.

The Order dated 11-4-1994 by the Tribunal confirming the declaration of the Central Government that the Jamaat-E-Islami-Hind is an “unlawful association” is not sustainable under law.

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