Power and Position
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This case analysis is written by Shivani Sharma, a student of Symbiosis Law School, NOIDA. The topic deals with Jamaat -e-Islami  Hind and Ors. v/s Union Of India. 

Introduction 

Jamaat-e-Islami Hind is an all India organization which was declared as an unlawful association “by the central government as per the notification issued by the ministry of home affairs. So JEIH filed a suit against the government of India. Basically, in this case, the question was put up on this issue whether the said Act is a part of the constitutional body or not. This was the case where the investigation report of the tribunal board was challenged by the appealing through a special leave petition.

This case came before the Supreme Court of India. The decision was given in fifteen pages and was given by Justice Jagdish saran Verma, S.P Bharucha and K.S Paripoornan. 

Basically, in this research project I am going to do a critical analysis of the case with the help of skills of legal reasoning and logic. Here I am going to describe the facts and the related issues with the applicability of receptive laws, and on which ground the respective judges gave the judgment also included a pretend case and also gave my own example to make my point longer. 

Facts 

Jamaat-e-Islami-Hind is an all India organization which was established in the year april1948. They claim that their main objective is to profess a political, spiritual and secular power, they also believe that the god is one with the feeling of universal brotherhood. They claim that whatever Activities they performed by the association are done for the sake of promoting and to accomplish their objective.

On December, 10 1992official gazette declared notification which was issued on the same date by the ministry of home affair under Section 3(1) of Unlawful Activities (prevention) Act, 1967. 

This notification is stated that Jamaat-e-Islami hind is an unlawful association under Section 5 of the Unlawful Activities (Prevention) Act 1967. Because Shree Sirajul Hasan was the head of the association called a meeting at Delhi where he stated that matter of separation of Kashmir from India was inescapable in other words they are in the favor of separation of Kashmir from India. They further start questioning the supremacy or the country’s unity and integrity.

But this fact was denied by the appellant and said that the government of India took it wrongly. A writ request was likewise recorded notwithstanding the said intrigue, in the other option, for a presentation that the arrangements of the said Act and the Rules surrounded thereunder are unlawful and ultra vires a portion of the essential rights ensured in the Constitution of India.

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Issues

  1. The first issue was put up in front of the tribunal board that whether or not the central government was given a sufficient or reasonable reason for declaring the said association an unlawful association under the respective and prescribed Act?
  2. The second issues were raised before the court that unlawful Activities (prevention) Act 1967 is said to be constitutional or not?

Relevant Laws 

Section 2(f) and Section 2(g) defines unlawful associations [1] follows

Section 2(f) of Unlawful Activities (Prevention) Act defines unlawful associations an association should have the potential so as to declare the association unlawful.

Section 2(g)(1) of the Unlawful Activities Act defines unlawful association in relation of unlawful Activities. According to this unlawful association should have indulged in unlawful Activities where sub clause (2) gives an extension and describes that unlawful association should commit an offense under Section 153A and Section 153 of Indian Penal Code.

Section 4 of the unlawful Activities (prevention) Act defines tribunal duty and states that this is the duty of the tribunal that it should confirm the order that declared the organization unconstitutional.

Article 19 of the Constitution of India which defines right to freedom of speech and expression.

Section 2 of the Unlawful Activities (Prevention) Act which defines all the replant definitions which are related to this case such as association, tribunal (in respect of Section 5 of the said Act), unlawful Activities.

Section 10 of Unlawful Activities (Prevention) Act 1967 which defines that whosoever is continuing to be member of the unlawful association is entitled for the punishment of two years or shall be entitled to give fine.

Section 11 of unlawful Activities (prevention) Act, 1967 which defines that whosoever is dealing with the funds of unlawful association is entitled for punishment of three years or entitled to give fine.

Section12[2] of Unlawful Activities (Prevention) Act 1967 which defines the punishment for the one year or shall be entitled for the fine

Section 13 of Unlawful Activities (Prevention) Act, 1967 which defines the punishment for the persons who are involved in unlawful activities.

Section 14 of Unlawful Activities (Prevention) Act, 1967 which defines the offenses which are said to be cognizable in nature.

Section 3 of Unlawful Activities (Prevention) Act, 1967 which defines that tribunal board and district judges should follow the rules of the Indian Evidence Act 1872.

Section 6 of Unlawful Activities (Prevention) Act, 1967 which defines the time period regarding operations and cancellation of notification.

Section7 of Unlawful Activities (Prevention) Act, 1967 which defines the power to prohibit the use of funds of unlawful association.

Section 153(A) and 153(B) of Indian Penal code

Section 193 of Indian Penal code which defines the punishment for showing false evidence.

Section 258 of Indian Penal code which defines sale of fake government stamps.

Judgement

This judgment was given by justice Jagdish Saran Verma, in this case, the supreme court held that Unlawful Activities (Prevention) Act, 1967 is constitutional in nature that why the writ petition was dismissed because it challenged the constitutionality of the Act. The Order dated 11-4-1994 by the Tribunal affirming the presentation of the Central Government that the Jamaat-E-Islami-Hind is an “unlawful affiliation” isn’t economical under law.

Analysis 

Judge’s Reasoning

Issue 1

This issue was first raised in front of Allahabad high court judge in tribunal board, so in this context tribunal board held that central government gave a sufficient reason or cause as to declare Jamaat-e-Islami hind is an unlawful association. But when it further appealed in supreme court so justice Jagdish Saran Verma said that they are going to examine all the rules which are related to it.

In his context supreme court said that the main material created by the Central Government to help the notice gave by it under Section 3(1) of the Act,  Tribunal board only examined the reports, affidavits or the investigation which was done by the central government only on the face of it. They examined only those facts and information which are presented by the central government and also central government did not disclose all the information because they declare that there are some information they are not the subject to disclose because they are against the public interest. Tribunal board also did not check the credibility of the information which was presented by the central government.so in this way the tribunal board did not follow the rules of natural justice.

Clearly, the Tribunal didn’t appropriately acknowledge and completely grasp its job in the plan of the resolution and the idea of arbitration required to be made by it.

Issue 

There are two definitions which are given in Section 4 of CPC which defines adjudication, a judge of Allahabad high court followed the exact procedure which are mentioned in above section and therefore it can be regarded as being valid under the provisions of the constitution. For the second issue, Justice Jagdish Saran Verma also gave the reason and said that the procedure which was established for the judicial inquiry in Preventive Detention Act is different from the unlawful Activities (prevention) Act. In the preventive detention Act, a declaration must be issued first, thereafter it will be reviewed. But in Unlawful Activities (Prevention) Act notification was reviewed first thereafter it was declared.

He further said that as per subsection 1 of Section 5 of the Act which defines that high court judge should be the part of the inquiry. In this case a judge of Allahabad high court sat and performed all the judicial scrutiny of the available testimony and material.

The learned judges have compared the precedent case State of Madras v/s V.G Row.[3] where it was held that the declaration of the association as illegal is a violation of fundamental right provided under Article 18 of the constitution the judges, in this case, contended that the restrictions were unreasonable in nature. Unlike the above case Jamaat-e-Islami Hind v. Union of India the restrictions imposed was reasonable and therefore had a constitutional validity, as they were imposed to ensure that the sovereignty and the integrity of India is maintained. 

Critique

First, more emphasis is given on the point of resendable restrictions in this context with agreement with the judgment of the Supreme Court that the restrictions were imposed on association was reasonable and therefore it had constitutional validity because if the law does not provide proper restrictions then it leads to a lot of disturbance which imbalanced the sovereignty and integrity of India. I will explain it in the form of a replant example if we talk about the right to privacy which is defined under Article 12 of the Constitution that no one can interfere in the home, family etc. Reasonable restrictions should be imposed on the right to privacy in order to safeguard the interest of the public at large and ensure that peace and tranquility prevails in India.

But total disagreement with the fact of dismissing the decision of tribunal court on this basis that tribunal board not try to find out the credibility of the information and just rely on the information which was given by central government because tribunal board followed the procedure which is mentioned in the respective Act and if the Act gives the power not to disclose the information which is against the public interest to the central government. I think this is the reason why the tribunal board is only restricted to the information presented by the central government because they have no way to only do analysis of the given information and think beyond. If judges will think about the facts which are not produced before them, judgment will be on the ground of assumption. Also, while giving the judgment the supreme court said that for the time being this association is declared to be lawful on the grounds on the facts which are presented.

Finally, I want to say that according to my opinion the tribunal board performs their functions properly in respect of investigation of the facts. 

I also put an emphasis on the objective of the association which believes that god is one and universal brotherhood so why they interfere in that matter which automatically harm the universal brotherhood because in the face got it seems like they are supporting a community 

Conclusion

If we talk about the present situation of the association it is divided into many segments and now they are also involved in terrorist Activities.

The judgment of the case was given by the supreme court of India in which they declared that Unlawful Activities (Prevention) Act is constitutionally valid and the notification which declared Jamaat-e-Islami hind is an unlawful association was declared invalid by the court.

I agree with the point of reasonable restriction which I mentioned above but I have different points of view in respect of dismissing the decision of tribunal board and start questioning on the functioning of the tribunal court because I think that tribunal board performs all the functions as per prescribed by the Act.

References 

[1] Unlawful Activities (Prevention) Act

[2] Penalty for contravention of an order made in respect of notified place

[3] 1952AIR196,SCR597


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