# JAMAAT-E-ISLAMI HIND v. UNION OF INDIA

- **Citation:** [1994] Supp. 6 S.C.R. 316
- **Court:** Supreme Court of India
- **Decided:** 1994-12-07
- **Bench:** J. S. Verma, S. P. Bharucha, K. S. Paripoornan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jamaat-e-islami-hind-v-union-of-india-12624
- **Pages:** 28

## Headnote

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Unlawful Activities (Prevention) Act 1967-Sections 3 (1) and 4Constitutionality of-- Nature of determination under-- Association declared
unlawful by the Central Government by notification- Confirmed by
Tribunal Materials before the Tribunal based on records and not personal
knowledge of officers deposing before Tribunal-Sources of information
not disclosed either to association or to Tribunal-Whether Act requires
objective ·determination by Central Government-Whether proceedings
before Tribunal judicial in character-Nature of materials required for
determination by Trubuna/-Held objective determination by the Central
Government requisite for declaring an association unlawful Proceedings
before Tribunal, held of an adjudicatory nature, distinguishing it from
opinion of Advisory Board under preventive detention law-Tribunal
cannot addicate its function to the Central Government-Materials on
which adjudication to be made must be in consonace with materials for
judicial determination-Tribunal can devise procedure to examine the
materials and decide on non-disclosure-On this construction Act, held,
constitutional-Tribunal having merely acted on the version of the Central
Government, order in instant case, held unsustainable.
Constitution of India. Article 19 (1) (CJ-Judicial Review.
Unlawful Activities (Prevention) Act 1967-Section 4-Natural
JusticeConfidentiality and non-disclosure of materials Jn public
interest-Disclosure of materials relied upon by Central Government, held,
subject to requirement of public interest and ordinary rules of evidenceConfidentiality does not extend to Tribunal-Tribunal not to merely accept
the opinion of the Central Government-Tribunal may devise suitable
procedure to itself examine the materials-Such course would satisfy the
m1mmum
requirement of natural justice
words
and phrases-
"Adjudicating" and "decide" -Meaning of held, have a legal connotation
in an inquiry by Tribunal constituted by sitting judge of High Court-They
are the essential attributes of a judicial decision-Unlawful Activities
(Prevention) Act 1967, Section 4.
316
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JAMAAT-E-ISLAMI HIND v. U. 0. I.
317
By notification dated December 10, 1992, the Government of India A
declared the appellant-association to be an unlawful associa~ion within
the meaning of the Unlawful Activities (Prevention) Act 1967~ Citing
two instances, the notification stated that leaders of the appellantassociation had disclaimed and questioned the sovereignty and integrity
of India. The notification was referred to the Tribunal constituted
under the Act to adjudicate whether or not there was sufficient cause B
for declaring the association unlawful. The Tribunal confirmed the
notification.
The material before the Tribunal comprised a resume prepared on
the basis of intelligence reports, and the affidavits of two officers on
behalf of the Central Government, both of whom spoke only on the C
basis of records and not personal knowledge; affidavits in rebuttal on
behalf of the association; and the cross-examination of the deponents of
the affidavits.
The association appealed from the order of the Tribunal, and also
challenged the constitutionality of the Act and the Rules made D
thereunder in a writ petition.
It was contended for the appellant-association that none of the
grounds on which the notification was based, even if proved, would
constitute unlawful activity to render it an unlawful association under
the Act. It was further contended that the material produced by the E
Central Government was, at best, hearsay and even that without
disclosing the source, disabling the association from effectively
rebutting it. On the question of constitutionality, it was contended that
the inquiry contemplated under the Act was judicial in nature, which
must be in the form of an adjudication of a /is giving a reasonable
opportunity to the association to rebut the correctness of the allegations F
against it. If the provisions were not so construed, it was urged,

## Text

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A
JAMAAT-E-ISLAMI HIND
v.
UNION OF INDIA
DECEMBER 7, 1994
B
[J. S. VERMA, S. P. BHARUCHA AND K. S. PARIPOORNAN, JJ.]
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Unlawful Activities (Prevention) Act 1967-Sections 3 (1) and 4Constitutionality of-- Nature of determination under-- Association declared
unlawful by the Central Government by notification- Confirmed by
Tribunal Materials before the Tribunal based on records and not personal
knowledge of officers deposing before Tribunal-Sources of information
not disclosed either to association or to Tribunal-Whether Act requires
objective ·determination by Central Government-Whether proceedings
before Tribunal judicial in character-Nature of materials required for
determination by Trubuna/-Held objective determination by the Central
Government requisite for declaring an association unlawful Proceedings
before Tribunal, held of an adjudicatory nature, distinguishing it from
opinion of Advisory Board under preventive detention law-Tribunal
cannot addicate its function to the Central Government-Materials on
which adjudication to be made must be in consonace with materials for
judicial determination-Tribunal can devise procedure to examine the
materials and decide on non-disclosure-On this construction Act, held,
constitutional-Tribunal having merely acted on the version of the Central
Government, order in instant case, held unsustainable.
Constitution of India. Article 19 (1) (CJ-Judicial Review.
Unlawful Activities (Prevention) Act 1967-Section 4-Natural
JusticeConfidentiality and non-disclosure of materials Jn public
interest-Disclosure of materials relied upon by Central Government, held,
subject to requirement of public interest and ordinary rules of evidenceConfidentiality does not extend to Tribunal-Tribunal not to merely accept
the opinion of the Central Government-Tribunal may devise suitable
procedure to itself examine the materials-Such course would satisfy the
m1mmum
requirement of natural justice
words
and phrases-
"Adjudicating" and "decide" -Meaning of held, have a legal connotation
in an inquiry by Tribunal constituted by sitting judge of High Court-They
are the essential attributes of a judicial decision-Unlawful Activities
(Prevention) Act 1967, Section 4.
316
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JAMAAT-E-ISLAMI HIND v. U. 0. I.
317
By notification dated December 10, 1992, the Government of India A
declared the appellant-association to be an unlawful associa~ion within
the meaning of the Unlawful Activities (Prevention) Act 1967~ Citing
two instances, the notification stated that leaders of the appellantassociation had disclaimed and questioned the sovereignty and integrity
of India. The notification was referred to the Tribunal constituted
under the Act to adjudicate whether or not there was sufficient cause B
for declaring the association unlawful. The Tribunal confirmed the
notification.
The material before the Tribunal comprised a resume prepared on
the basis of intelligence reports, and the affidavits of two officers on
behalf of the Central Government, both of whom spoke only on the C
basis of records and not personal knowledge; affidavits in rebuttal on
behalf of the association; and the cross-examination of the deponents of
the affidavits.
The association appealed from the order of the Tribunal, and also
challenged the constitutionality of the Act and the Rules made D
thereunder in a writ petition.
It was contended for the appellant-association that none of the
grounds on which the notification was based, even if proved, would
constitute unlawful activity to render it an unlawful association under
the Act. It was further contended that the material produced by the E
Central Government was, at best, hearsay and even that without
disclosing the source, disabling the association from effectively
rebutting it. On the question of constitutionality, it was contended that
the inquiry contemplated under the Act was judicial in nature, which
must be in the form of an adjudication of a /is giving a reasonable
opportunity to the association to rebut the correctness of the allegations F
against it. If the provisions were not so construed, it was urged, they
would suffer the vice of unconstitutionality.
For the Central Government it was contended that the Act is in the
nature of a preventive detention law, and that the opinion under the
Act can be formed not only on the basis of legal evidence but also other G
materials including intelligence reports from undisclosed sources. It
was urged that the requirement of natural justice is satisfied by mere
disclosure of the information without disclosing the source of the
information.
Allowing the petition and appeal, this Court
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SUPREME COURT REPORTS·
[1994] SUPP. 6 S.C.R
HELD : (1) The determination by the Central Government of the
question whether any association is, or has become, an unlawful
association to justify a declaration under Section 3, must be based on
objective decision. It is only on the conclusion so reached in an
objective determination that a declaration can be made by the Central
Government. (332 BJ
(2) The inquiry before the Tribunal constituted under the Act is in
the nature of the a judicial proceeding. It is in the nature of an
adjudication of a /is between two parties. In Section 4, the words
"adjudicating" and "decide" have a legal connotation in an inquiry by
a 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. [333 C, 334 DJ
Words and Phrases, Permanent Edition, Volume 2 and Shorter
Oxford English Dictionary on Historical Principles (3rd edn.), referred to.
(3) The penal consequences support the view that the inquiry
contemplated by the Tribunal under Section 4 of the Act is judicial in
char.acter since the adjudication made by the Tribunal is visited with
drastic consequences. (334 BJ
(4) The test of factual existence of grounds amenable to objective
determination for adjudging the reasonableness of restrictions placed
on the right conferred by Article 19 (1) (c) to form associations is in the
scheme of the Act. (336 GJ
State of Madras v. V. G. Row, [1952J SCR 597, followed.
(5) The nature of the inquiry preceding the order made by the
Tribunal under Section 4, 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.
The requirement of specifying the grounds, the disclosure of the facts
on which they are based, the adjudication of the existence of sufficient
cause for declaring the association to be unlawful after considering the
cause, if any, shown by the association are all consistent only with an
objective determination of the points raised in controversy in a judicial
scrutiny conducted by a Tribunal c9nstituted by a sitting High Court
judge. It distinguishes the scheme under this Act from the requirement
JAMAAT-E-ISLAMI HIND v. U. 0. I.
319
under the preventive detention laws to justify the anticipatory action of A
preventive detention based on suspicion reached by a process of
subjective satisfaction. (334 C, 337 B to DJ
(6) Subject to the requirement of public interest, which must
always outweigh every other lesser interest, including the interest of the
association and its members, the ordinary rules of evidence and B
requirement of natural justice must be followed by the Tribunal.
Subject as aforesaid, all information and evidence relied on by the
Central Government has to be disclosed to the association to enable it
to show cause against the same. (337 H, FJ
(7) Unlawful activities of an association may quite often be
clandestine, and the source of the evidence of the unlawful activities C
may require continued confidentiality in the public interest. The nondisclosure of sensitive information and evidence to the association and
its office bearers, whenever justified in public interest, does not imply
its non -disclosure to the tribunal as well. The Tribunal may, therefore,
devise a suitable procedure whereby it can itself examine and test the
credibility of the material before it decides to accept it for determining D
the existence of sufficient cause for declaring the association unlawful.
The materials need not be confined to legal evidence in the strict sense.
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 member, without jeopardising the
public interest. This would also ensure that the process of adjudication E
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. (338 E, F, H, 339 A, BJ
John J. Morrissey and G. Donald Booher v. Lou B. Brewer 33 L Ed 2d F
484 and Paul Ivan Birzon v. Edward S. King, 469 F 2d 1241 [1972)
referred to.
(8) Judicial scrutiny implies a fair procedure to prevent the
vitiating element of arbitrariness. What is fair procedure in a given
case, would depend on the materials constituting the factual foundation G
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.
[341 C, DJ H
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SUPREME COURT REPORTS
[1994] SUPP. 6 S.C.R
(9) On the above construction, Section 3 (1) and 4 of the Act are
'declared to be constitutional. [341 H]
(10) In the instant case, 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, some method
should have been adopted by the Tribunal to test the credibility of the
version. Tile 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 the credibility of the version and
whether it is sufficient to inspire confidence justifying its acceptance in
preference to the sworn denial of the witnesses examined by the other
side. The order of the tribunal cannot, therefore, be sustained.
(342 E, G, H]
CIVIL APPELLA~E JURISDICTION: Civil Appeal No. 3960 of
1994.
From the Judgment and Order dated 11.4.94 of the Unlawful Activities
(Prevention) Tribunal, New Delhi.
D. P. Gupta, Solicitor General, Soli J. Sorabjee, P. P. Malhotra, V. M.
Tarkunde, Raju Ramachandran, Ejaz Maqbool, Braj Kishore, (Ms. A.
Subhashini). Shakeel Ahmed, P. Panneshwaran, A. Subba Rao, M. Rama
Jois, A. K. Goel, S. R. Bhat for the appearing parties.
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 of 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
10.12.1992 issued under sub-section (1) of Section 3 of the Act that JamaatE-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 oflndia.
JAMAAT-E-ISLAMI HIND v. U. 0. I. [J.S.VERMA, J.]
321
The Broad submission of Shri Soli J. Sorabjee on behalf of the saict A
association is, that in the event a construction is made of the provisions of
the said Act and 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, B
therefore, appropriate that the proper construction of these provisions be
first made to enable consideration of the contention in the true perspective.
The material facts are these : The said association, namely, Jamaat- E -
Islami Hind, established in April 1948, is an All India organisation
professing a political, secular and spiritual credentials with belief in the C
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
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NOTIFICATION
New Delhi, the 10th December, 1992
I
S.O. 898 (E). Whereas Shri Sirajul Hasan Amir of the E
Jamaat- e- Islami Hind (hereinafter referred to us JEIH)
declared in a meeting at Delhi held on the 27th May, 1990
that the separation of Kashmir from India was inevitable;
And whereas Shri Abdul Aziz, Naib Amir of JEIH,
addressing a meeting at Malerkotla on the 1st August, 1991, F
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 G
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
urilawful association :
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SUPREME COURT REPORTS
[1994] SUPP. 6 S.C.R
Now, therefore, in exercise of the Powers conferred by Subsection (1) of section 3 of the Unlawful Activities
(Prevention) Act 1967 (37of1967), the Central Government
hereby declares the 'Jamaat- e- lslami Hind' to be an
unlawful association, and directs, in exercise of the powers
conferred by the proviso to 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 publication in the Official Gazette.
[No. Il/14034/2(i)/92-IS (DV)]
T.N. SRIVASTAVA, Jt.Secy."
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 confirtned 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 ofT. N. Srivastava, Joint Secretary in the Ministry
of Home Affairs and N. C. Padhi, Joint Director, I. B., 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.
Briefly stated, the submission of Shri Soli J. Sorabjee leamed counsel
for the appellant-association is that none of the grounds on which the
notification is based, even assuming them to be proved, constitutes
"unlawful activity" as defined in Section 2(f) of the Act to render the
JAMAAT-E-ISLAMI HIND v. U. 0.1. [J.S.VERMA, J.)
323
appellant an unlawful association within the meaning of Section 2(g) of the A
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, here say 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 activitie~s are B
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 /is 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 C
petition has been filed to project the alternative argument.
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 D
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 E
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.
The Central Government's right to claim privilege against disclosure of
certain information, in public interest, in the manner prescribed by law, is F
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.
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:-
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SUPREME COURT REPORTS
[1994] SUPP. 6 S.C.R
The On/awful Activities (Prevention) Act, 1967
"2. Definitions- In this Act, unless the context otherwise requires,
(a)
"Association" means any combination or body of individuals;
(b) "Cession of a part of the territory of India" includes admission of
the claim of any foreign country to any such part ;
( c)
"Prescribed" means prescribed by rules made under this Act;
(d) "Secession of a part of the territory of India from the Union"
includes the assertion of any claim to determine whether such part
C
will remain a part of the territory oflndia;
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(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 153B oflndian 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:
xxx
Provided that nothing contained in sub-clause (ii) shall apply
to the State of Jammu and Kashmir.
xxx
xxx
JAMAAT-E-ISLAMI HIND v. U. 0. I. [J.S.VERMA, J.]
CHAPTER II
UNLAWFUL ASSOCIATIONS
325
A
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 B
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.
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(3) No such notification shall have effect until the Tribunal has, by an
order made under Section 4, confirmed the declaration made D
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 E
shall, subject to any order that may be made under Section 4, have
effect from the date of its publication in the Official Gazette.
xxx
xxx
xxx
4.
Reference to Tribunal (l) where any association has been declared F
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 G
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.
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SUPREME COURT REPORTS
[1994] SUPP. 6 S.C.R
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(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
B
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 subsection (1) of Section 3, such order as it may deem fit either
confirming the declaration made in the notification or cancelling
the same.
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(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
D
known as the "Unlawful Activities (Prevention) Tribunal"
consisting of one person, to be appointed by the Central
Government :
E
F
,Provided that no person shall be so appointed· unless he is a judge
of a High Court.
xxx
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xxx
(5) Subject to the Provisions of Sections 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 : -
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(a)
the summoning ~d enforcing the attendance of any witness and
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examining him on oath;
(b) the discovery and production of·any document or other material
object producible as evidence;
( c)
the reception of evidence of affidavits ;
JAMAAT-E-ISLAMI HIND v. U. 0. I. [J.S.VERMA, J.]
327
( d)
the requisitioning of any public record from any court or office;
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( 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 Section 193 and 228 of
the Indian Penal Code (45 of 1860) and the tribunal shall be B
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 C
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 D
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.
7.
Power to prohibit the use of funds of an unlawful association ........ .
8.
Power to notify places for the purpose of an unlawful assoc:iation.-
( I) Where an association has been declared unlawful by a
notification issued under section 3 which has became effective
under sub section (3) of that Section, the Central Government may,
by notification in the Official Gazette, notify any place which in its
E
opinion is used for the purpose of such unlawful association.
F
Explanation-For the purpose of this sub-section, "Place"
includes a house or building or part thereof or a tent or vessel.
xxx
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(3) If, in the opinion of the District Magistrate, any articles specified G
in the list are or may be use for the purpose of the unlawful
association, he may make an order prohibiting any person from
using the articles save in accordance with the written orders of the
District Magistrate.
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(8) Any person aggrieved by a notification issued in respect of place
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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 applications 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 applicaion under sub-section (4) of Section 7
or sub-section (8) of Section 8 shall, so far as may 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 PENAL TIES
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.
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11. Penalty for dealing with funds of an unlawful association.- If any A
person on ·whom a prohibitory order has been served under subsection (1) of Section 7 in respect of any money, 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 imprisoment for term which
may extend to three years, or with fine or with both, and B
notwithstanding anything contained in the code of Criminal
Procedure, 1898 (5 of 1898), the court trying such contravention
may also impose on the person convicted an additional fme 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 C
been contravened or such part thereof as the court may deem fit.
12. Penalty for contravention of an order made in respect of an
notified place.- (I) 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 D
which may extend to one year, and shall also be liable to fme.
(2) Whoever knowingly and wilfully 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 E
also be liable to fme.
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
fme.
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(2) Whoever, in any way, assists any unlawful activity of any G
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, of with both.
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(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.
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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
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"2. Definitions.-In these rules unless the context otherwise
requires,-
(a)
"the Act" means the Unlawful Activities (Prevention) Act, 1967
(37of1967);
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(b) "section" means a section of the Act;
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( 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 subsection (8) of Section 8, the Tribunal or the District Judge, as the
case may be, shall, 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 (1of1872).
(2) Notwithstanding anything contained in the Indian Evidence Act,
1872 (1 of 1872), where any books ofaccount 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
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records of proceedings before it ; or
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JAMAAT-E-ISLAMI HIND v. U. 0. I. [J.S.VERMA, J.)
331
(b) allow inspection of, or grant a copy of, the whole of or any extract A
from, such books of account or other documents by or to any
person other than a party to the proceedings before it.-
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5.
Documents which should accompany a reference to the Tribunal. B
Every reference made to the Tribunal under sub-section (1) of
Section 4 shall be accompanied by-
(i)
a copy of the notification made sub-section (1) of Section 3, and
(ii) all the facts on which the grounds specified in the said notification C
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.
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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 ,
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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 E
case may be, to be necessary for the proper determination of the
matter before it or him."
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 F
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 (I) of Section 3 of the Act.] Clause (g) defines "unlawful G
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 of Section 153-B of the I. P. C. while in sub clause (i)
it is with reference to "unlawful activity" as defined in clause (f). These H
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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, I. P. C. 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 (I) of Section 3.
Sub-section (2) of Section 3 requires the notification issued under subsection (1) to specify the grounds on which it is issued and such other
particulars as the Central Government may consider necessary. This
requirement indicates that performance of the exercise has to be objective
together with disclosure of the basis of action to the association. The
proviso to sub-section (2) permits the Central Government not to disclose
any fact which it considers to be against the public interest to disclose.
Ordinarily a notification issued under sub-section (1) of Section 3 becomes
effective only on its confirmation by the Tribunal by an order made under
Section 4 after due inquiry; but in extraordinary circumstances, which
require that it may be brought into effect immediately, it may be so done
for 'reasons to be stated in writing' by the Central Government, and then
also it is subject to any order made by the Tribunal under Section 4 of the
Act. Section 3 requires an objective determination of the matter by the
Central Government and Section 4 requires confirmation of the act of the
Central Government by the Tribunal.
Section 4 deals with reference to the Tribunal. Sub-section (1) requires
the Central Government to refer the notification issued under sub-section
( 1) of Section 3 to the Tribunal "for the purpose of adjudicating whether or
not there is sufficient cause for declaring the association unlawful". The
purpose of making the reference to the Tribunal is an adjudication by the
Tribunal of the existence of sufficient cause for making the declaration. The
words "adjudicating" and "sufficient cause" in the context are of
significance. Sub-section (2) requires the Tribunal, on receipt of the
reference, to call upon the association affected 'by notice in writing to show
cause' why the association should not be declared unlawful. This
requirement would be meaningless unless there is effective notice of the
basis on which the declaratfon 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
JAMAAT-E-ISLAMI HIND v. U. 0.1. [J.S.VERMA, J.]
333
consider necessary from the Central Government or the association to A
decide whether or not there is sufficient cause for declaring the association
to be unlawful. The Tribunal is required to make an order which it may
deem fit "either confirming the declaration made in the notification or
cancelling the same". The nature of inquiry contemplated by the Tribunal
requires it to weigh the material on which notification under sub-section {l)
of Section 3 is issued by the Central Government, the cause shown by the B
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. 111e 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 /is between two parties, the outcome of C
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".