A Judge Stirs A Hornet's Nest

Mere opinions, a stunning abscence of facts and gross violations of law in the Centre’s case against SIMI are what moved tribunal judge Geeta Mittal to reject the ban, Reports AJIT SAHI

The Righteous SIMI counsel Jawahar Raja and Mobin Akhtar weigh the evidence Photo: Shailendra Pandey

SHORTLY AFTER the 9 pm news began rolling out on major television networks on August 5, 2008, “sources” in the Union Home Ministry quietly let out that Delhi High Court judge Geeta Mittal had rejected the Centre’s ban on the Students’ Islamic Movement of India (SIMI) citing insufficient evidence to connect the group with unlawful activities as alleged by the Centre.

Media reports said that the tribunal judge had sent her report in a sealed cover to the Union Home Ministry. Certainly, her order had not been pronounced in an open court. Even the legal team that had contested the ban on behalf of SIMI’s ex-president, Shahid Badr Falahi, had heard of judge Mittal’s decision — certainly very welcome to them — only from the television networks.

Yet, the next day, on August 6, while the fact of the order having been passed had still not been communicated to either Falahi or his lawyers, Additional Solicitor General (ASG) Gopal Subramaniam appeared before Supreme Court Chief Justice KG Balakrishnan and sought a stay on the order of the tribunal — and got the order he wanted. The Supreme Court immediately stayed the order of the tribunal and ruled that the ban on SIMI will continue for at least three more weeks. The apex court also issued notices to SIMI asking it why the ban against it should not be maintained.

“The Supreme Court’s stay on the tribunal’s order is a murder of justice,” Falahi told TEHELKA (see interview on page 43). Falahi certainly has reason to feel the Supreme Court is being unfair to him on the matter. As per the provisions of the Unlawful Activities (Prevention) Act 1967, under which SIMI was banned, a tribunal headed by a sitting high court judge has to be constituted within 30 days from the day the ban is notified, “for the purpose of adjudicating whether or not there is sufficient cause for declaring the association unlawful”. The law also clearly stipulates that such a tribunal must declare its finding “within a period of six months from the date of the issue of the notification” banning the organisation. (As the last ban was imposed on February 7 this year, Judge Mittal’s report was due no later than August 6.)

SIMI was banned thrice before in 2001, 2003 and 2006. Each time, a new tribunal was constituted. Each tribunal returned its finding in favour of the government, upholding its ban on SIMI. Each time, Falahi appealed before the Supreme Court against the tribunal’s decision. While the Supreme Court showed great alacrity on August 6 in responding to the Centre’s plea to stay Judge Mittal’s order, it hasn’t taken up any of Falahi’s three appeals in all these years. Fundamentally, there should be no difference in the legal status of Falahi’s appeals and that of the Centre’s appeal before the Supreme Court. After all, both were equal parties before the four tribunals. Every time, the party that got an adverse order approached the apex court, but were not granted a hearing.

In any case, the government’s move to seek a stay from the Supreme Court also compromised Falahi’s legal rights in another way.

Iron Woman:Tribunal judge Geeta Mittal gave a fair ruling

As per practice, as soon as a party gets an order in its favour from one court, it has the option to file a caveat in the court, to which an appeal would lie, asking that no orders should be passed in the matter on appeal without intimation to it. However, if Falahi wanted to file such a caveat he would be required to clearly set down the date of the order that was given in his favour. But because Falahi hadn’t received any official intimation on Judge Mittal’s order, he was in no position to even comply with the formalities that the Supreme Court registry would have insisted upon if his caveat was to be entertained.

It is typical of the government’s skulduggery that it moved the Supreme Court without communicating the tribunal’s order to the contesting party, SIMI, which, in this case, actually won a hard-fought five-month battle against the government at the tribunal. “The appropriate step for the government would have been to at least inform us that an order has been passed in our favour and that it is going to appeal against it before the Supreme Court,” a lawyer connected with Falahi’s defence told TEHELKA.

It has also been suggested in the news media — no doubt based on off-the-record suggestions by Union Home Ministry officials and by the government’s lawyers — that tribunal judge Mittal threw out the Centre’s ban notification on some “technical grounds”. Nothing could be further from the truth. This reporter attended the tribunal’s hearings across nine cities over three months. The truth is that case after case that the Centre brought before the tribunal was either dubious in its evidence or on procedural issues before the trial court.

INDEED, RIGHT from the step of issuing the notification banning SIMI on February 7 this year, the Centre did not meet a variety of requirements laid down by the 1967 law, as well as the standard procedures of litigation and the principles of natural justice.

The ASG’s submissions before the Supreme Court on August 6 while urging for a stay of the tribunal’s order are of a piece with the deception that the government has practiced before the tribunal throughout. To begin with, the Central government’s notification banning an organisation under the 1967 law must state its opinion and the grounds that led it to the opinion. It is astounding that the notification, while giving out its opinion that SIMI must be banned because of its unlawful activities, set out no ground. During the last days of the hearings at the tribunal, Judge Geeta Mittal had virtually lost her cool with the counsel for the Central government on this issue.

Falahi’s counsel Jawahar Raja — a formidable young lawyer who kept his opponents on tenterhooks throughout the three months — demanded that the government set down in writing which part of the notification it considered as the “grounds” that substantiated its opinion that SIMI be banned. Initially, the government submitted in writing that “the last 4 sub paragraphs” of the notification are the grounds upon which SIMI has been declared an unlawful association. However, three months later when Additional Solicitor General KK Pathak, who led the government’s charge throughout in the tribunal, submitted a “Synopsis of Reply” arguments on July 30, he wrote: “The first 3 (three) sub paragraphs of the notification dated 7.2.2008 are the grounds”.

“It is evident, therefore, that even the Central government is desperately casting about in search of the grounds in the notification, which in fact contains no such grounds,” Falahi’s lawyer Raja submitted before the tribunal.

Before the Supreme Court, too, Subramaniam’s petition continued in the same vein as the notification did, laying down an unsubstantiated statement: “Being a group of students and youth, SIMI is easily influenced by hardcore Muslim terrorist organisations operating from Jammu and Kashmir. The Hizb-ul- Mujahideen and the Lashker-e-Taiba have successfully penetrated into SIMI cadre to achieve their goals.” Of course, Subramaniam made no reference to any grounds.

In his petition seeking the stay, Subramaniam referred to the notification, saying it clearly mentioned that if SIMI’s unlawful activities were not curbed immediately, it would continue with its “subversive activities” and reorganise its activists, who were still absconding; destroy the secular fabric of the country, polluting the minds of the people by creating communal disharmony; propagate anti-national sentiments and escalate secessionism by supporting militancy.

Once again, these are opinions not supported by an empirical grounds. The Supreme Court itself has established that “grounds of the opinion must mean the conclusion of facts on which the opinion is based”. But in case after case, as detailed in the personal histories of the various accused chronicled on other pages in this issue, the facts against the accused have turned out to be highly dubious. In fact, scores of the SIMI activists who have been accused of various crimes have been acquitted by lower courts across India. Indeed, an overwhelming majority of the judgements in the criminal cases against SIMI’s activists have gone in their favour and against the prosecution. (Read a report on such acquittals in TEHELKA next week.)

Another fundamental principle of natural justice that was severely compromised because of the Central government’s approach is

that of the right of the defence to cross-examine the witnesses directly linked with the investigation. Raja, who won the tribunal’s order, says, “My client Falahi had strongly questioned the veracity of cases brought against SIMI. The requirements of natural justice would not be served unless the facts that were sought to be proved were deposed to by witnesses from their direct personal knowledge in accordance with the requirements of the Indian Evidence Act.”

Battle absurdus Unexamined prejudice, not based on fact, underlies all the animus against SIMI

This means that the Centre should have brought the investigating officers of the various criminal cases against the alleged SIMI accused to depose before the tribunal, so that the SIMI lawyer could get a chance to cross-examine them on the various aspects of the case such as how the arrests and the seizures were made as well as about the confessions of the accused, etc. But an overwhelming number of the witnesses who were brought to the tribunal — nearly all of whom were police officers — were those who hadn’t directly led the investigations of the criminal cases, and hence took refuge in saying that they couldn’t answer the question put to them because they had no personal knowledge about the crime’s investigation, and were only deposing from their study of the documents.

ALSO, THE scheme of the 1967 law is such that an organisation will be banned only for two years at a time. If a fresh ban has to be promulgated after the lapse of the previous one, then it must be based on evidence of new unlawful activity arising after the first ban was notified. In other words, the second ban cannot be based on the basis of the unlawful activity that occurred before the first ban and had formed the grounds for its imposition. Such safeguards were considered necessary at the time the bill for the law was debated in Parliament. After all, the right to associate is a fundamental right guaranteed in the Constitution, and endless bans on an organisation without fresh cause to do so would severely compromise the constitutional right of that association to exist.

Thus, the Centre’s decision to ban SIMI on February 7, 2008 should be based on fresh ground arising only after February 7, 2006, when the previous ban was imposed. Despite this requirement, an overwhelming majority of the cases that the Centre brought to this tribunal from the various states pertained to periods as far back as 1999 which have been led in evidence in the previous three tribunals. (In fact, the Centre had so much as admitted before the third tribunal that it didn’t have any new cases against SIMI. Yet, the third tribunal had inexplicably upheld the ban notification.) The law also says that the ban notification can be based only on grounds arising before the notification is promulgated. The only valid period here is Februray 7, 2006 to February 6, 2008. Thus, the Centre could not bring cases arising after February 7, 2008 — like Safdar Nagori’s arrest in March this year — before the tribunal. Yet, in state after state, that is exactly what the Centre did.

Such was the indefensible weakness in the Centre’s case before the tribunal that Judge Geeta Mittal, who throughout the hearings relied extensively on points of law, found that the Centre’s ban of SIMI was unsustainable. Kudos must go to the judge for a decision that goes against the prevalent widespread prejudice against SIMI in the government, the police and most certainly in the media. Even if it has promptly been stayed. •