SRINAGAR The J&K High Court on Monday issued notice returnable within two weeks to the Home Secretary, Ministry of Home Affairs, on a petition, challenging its ban on Jamaat-e-Islami for five years from February 28 this year.
A bench of Justice Tashi Rabstan issued the notice which was waived in open court by Assistant Solicitor General of India in open court and the MHA has been asked to file its response within two weeks.
The petition has been filed by one Mehraj Azeem (61) of Nishat Srinagar, a former member of Jamaat who said that the JeI has been in existence for more than six decades with the sole intent of socio-religious well being of the society.
The organisation has been actively engaging itself social voluntary work, one such recent example is that off unfortunate floods of 2014 the organisation played a tremendous role in uplifting of the society and bring lives to normalcy in valley, the contribution of the JeI in the field of education and other such sectors is commendable, he said. The JeI had contested elections both parliamentary as well as assembly and has a registered election symbol.
The petition has challenged as the ban, contending that it was illegal and arbitrary to declare JeI unlawful association with immediate effect without specifying the grounds as is mandated under Section 3(2) of Unlawful Activities (Prevention) Act, 1967.
He said that the MHA has made an unsupported and sweeping allegations without specifically providing specific grounds
(2) Every such notification shall specify the grounds on which it is issued and such other particulars as the Central government may consider necessary..
Grounds are not opinions or subsidiary evidence, they should comprise of facts which substantiate the notification and should include particulars with regards to the dates of the offences, details of the FIRs registered by the police or the details of the pending prosecution, he said. Grounds as it has been marked in the case of Vakil Singh V/S State of J&K, 1974; must contain the pith and substance of primary facts but not subsidiary facts or evidential details, the petitioner said.
The decision to declare an association unlawful cannot be merely effected by the production of the notification that the grounds have to be spelt out, he said. Free speech and right to form unions/associations is intrinsic to a democratic polity, he said, and challenged the notification on February 28 and provisions of the Act under grounds available to him under law.
He said there are no circumstances mentioned in the notification which justify the exercise of powers for imposition of ban with immediate effect. The reasons for issuance of the notification and imposition of ban with immediate effect are the same, which is impermissible as the law laid down Mohammad Jafar Versus Union Of India.
The MHA, he said, has not followed the procedure while announcing the notification. Respondents should have stated the grounds to support its declaration. Section 3(4) (publication of notification) and Rule 4 (additional mode of service of notification u/s. 3) lay down that the organization which has been declared unlawful must be served a copy of the notification. Subsequently, the government has not cared to form a single judge (High Court) tribunal as the same had to be done within thirty days of the notification. Hence, the respondents cannot, at will, declare an association unlawful and proceed to use its executive powers against the association and its members.
Presumably even if certain material is available with the (MHA) the same would constitute an incriminating material against a single individual of the organisation and not against the
organisation as a whole, the same has to be dealt in accordance with the law of land and could not be used to muzzle and gag an entire political organisation having decades of existence.
it is therefore prayed that It is accordingly prayed that, this court may pass any writ, order or direction, directing stay on the immediate ban imposed on Jamaat-e-Islami, J&K by virtue of S.O 1069(E), dated 28.02.2019 till final disposal of the petition, the petitioner prayed.
Tribunal To Decide If Sufficient Cause For Declaring JeI Unlawful Association
The Centre has constituted a tribunal headed by a Delhi High Court judge to decide whether there is sufficient cause for declaring Jamaat-e-Islami Jammu and Kashmir as an unlawful association.
The Ministry of Home Affairs (MHA) on March 23 issued a notification which states that Justice Mukta Gupta would head the tribunal set up under the Unlawful Activities (Prevention) Act (UAPA).
Justice Gupta is presently heading another tribunal set up under UAPA to ascertain whether there was sufficient cause to extend the ban on the Students Islamic Movement of India (SIMI) as an unlawful association.
The tribunal’s proceedings with regard to the ban on SIMI commenced on February 28 and is ongoing.
As the proceedings against SIMI commenced, the same day, the Centre banned Jamat-e-Islami (JeI) Jammu and Kashmir for five years under the anti-terror law on grounds that it was “in close touch” with militant outfits and is expected to “escalate secessionist movement” in the state.
The government in its February 28 notification banning JeI said it was of the opinion that the Jamaat is “in close touch with militant outfits” and is supporting extremism and militancy in Jammu and Kashmir and elsewhere.
It said the outfit claims “secession of a part of the Indian territory from the union” and supporting militant and separatist groups fighting for this purpose.
The action came following the February 14 attack in Pulwama, in which 40 CRPF personnel were killed.
There have been allegations in the past that the group was a political outfit of banned militant organisation Hizbul Mujahideen but the group has denied.
The outfit, which was formed in 1945 as a chapter of the Jamaat-e-Islami Hind and separated in 1953 due to differences over political ideology with the parent body, was banned in 1990.
The previous ban lapsed in 1995 and since then it has never been invoked again.