Full Judgment Text
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PETITIONER:
JAMAAT-E-ISLAMI HIND
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT07/12/1994
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
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:
JUDGMENT:
The Judgment of the Court was delivered by
J.S. VERMA, J.- 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
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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;
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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
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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
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"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 thereunder.
The relevant provisions of the Act and the Rules are as
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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;
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(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
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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.
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(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
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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
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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
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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."
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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
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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
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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
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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
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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
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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
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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
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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 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
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)
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"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
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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
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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
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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.
452