TMI Blog1994 (3) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose is as follows. Under sub-section (1) of Section 3 the Central Government is empowered to declare any association as unlawful, by notification in the Official Gazette, which association in its opinion is or has become unlawful. Section 2(a) defines 'association' to mean any combination or body of individuals . Section 2(f) defines 'unlawful activity' in relation to an individual or association to mean any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise), (i) which is intended, or supports any claim to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; (ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India . Section 2(g) defines 'unlawful association' to mean any association (i) which has for its object any unlawful activity, or which encourages or aids persons to under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as expeditiously as possible and in any case within a period of six months from the date of the issue of the notification under sub-section (1) of Section 3, and make such order as it deems fit either confirming the declaration made in the notification or cancelling the same. The order so made by the Tribunal has to be published in the Official Gazette as required by sub-section (4) of the said section. 5. The adjudicating tribunal known as the 'Unlawful Activities (Prevention) Tribunal' consisting of one person to be appointed by the Central Government is constituted as per the provisions of Section 5 of the Act. The person constituting the Tribunal has to be a Judge of the High Court. Sub-section (5) of Section 5 gives power to the Tribunal to regulate its own procedure in all matters arising out of the discharge of its functions. Sub-section (6) of the said section read with Section 9 vests the Tribunal with the power of the civil court as laid down in the Code of Civil Procedure for the purpose of holding the inquiry. 6. Section 10 visits any person who is or continues to be a member of an association which is declared unlawful or takes part in the meeting of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for taking immediate action under the proviso to sub-section (3) of Section 3 which prompted it to declare JEIH as unlawful under subsection (1) of Section 3. Before us also, it is not the case of the Union of India that it has some facts and material in its possession to declare it unlawful with immediate effect in addition to the facts and material for taking action against JEIH under subsection (1) of Section 3. The question, therefore, is whether the Central Government has to have facts and material showing the need for immediate action under the proviso to sub-section (3) of Section 3 which are in addition to and distinct from those which are necessary for taking action under sub-section (1) of Section 3. We may here reproduce sub-sections (1), (2) and (3) of Section 3. They read as under : (1) If the Central Government is of opinion that any association is, or has become, an unlawful association, it may, by notification in the Official Gazette, declare such association to be unlawful. (2) Every such notification shall specify the grounds on which it is issued and such other particulars as the Central Government may consider necessary : Provided that nothing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect is also clear otherwise. The proviso requires firstly that the Government must be of opinion (i) that circumstances exist which render it necessary for the Government to declare the association to be unlawful with immediate effect and (ii) the reasons for such declaration must be stated in writing. The language of the said proviso is different from the language of sub-section (1) of Section 3 which merely states that the Government has to be of opinion that any association is or has become an unlawful association. The very fact further that the legislature has provided a machinery in the form of the Tribunal to hold a full-fledged inquiry to adjudicate on the issue whether the notification issued under Section 3(1) should be confirmed or cancelled, shows that the legislature has no intention of banning an organisation and its activities without giving it a due opportunity to show cause and represent its case fully. It must be remembered in this connection that Article 19(1 )(c) of the Constitution incorporates one of the precious freedoms of the citizens, viz., to form associations or unions. The provisions of the Act banning an organisation with immediate effect without giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paration of Kashmir from India was inevitable, (b) that Shri Abdul Aziz, Naib-Amir of JEIH, addressing a meeting at Malerkotla on 1-8-1991, observed that the Government of India should hold plebiscite on Kashmir, (c) that the JEIH has been disclaiming and questioning the sovereignty and territorial integrity of India, and (d) other facts and materials in the possession of the Central Government which it considers to be against the public interest to disclose. As regards the first two grounds, they are obviously stale one of 27-5-1990 and the other of 1-8-1991 and they cannot justify immediacy on 10-12-1992 when the impugned notification was issued. The language of the third ground shows that the association has been indulging in the acts stated therein publicly from its inception or at least for a long time which again negatives the need for immediate ban. As for the last ground, viz., other facts and material in the possession of the association which the Central Government considers to be against the public interest to disclose, no privilege is claimed before us, against such other facts and material. If it was claimed, the court would have looked into them and decided the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that all facts and materials have been duly furnished to JEIH. They were furnished with the statements against them and they have filed their counter-affidavit before the Tribunal. The Tribunal, according to the learned counsel, will decide the matter, in due course. 13. In this connection, we may refer to CB. Gautam v. Union of India' where the case arose out of an order for compulsory purchase of immovable property under the provisions of Section 269-UD of the Income Tax Act. What fell for consideration was the expression for reasons to be recorded in writing used in Section 269-UD(1). The Court referred to the provisions of Section 269UD(2) which casts an obligation on the authority to cause a copy of its order under sub-section (1) to be served on the transferee. The Court, therefore, held as follows: (SCC p. 105, para 32) It is, therefore, inconceivable that the order which is required to be served by the appropriate authority under subsection (2) would be the one which does not contain the reasons for tile passing of the order or is not accompanied by the reasons recorded in writing. It may be permissible to record reasons separately but the order would be an inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
