By Abu Zafar, TwoCircles.net,
New Delhi: The Supreme Court of India on Monday issued notice to the central government on a writ petition challenging the constitutional validity of Unlawful Activities (Prevention) Act, 1967, (UAPA) that allows banning of associations, and which has been used to ban the Students Islamic Movement of India (SIMI) since September 2001.
The bench comprising Justices R.M. Lodha, H.L. Gokhale and Ranjan Gogoi issued notice and sought the central government’s response within ten weeks.
Arguing for the petition Uday U. Lalit, Senior Advocate, said that the central government’s ban on SIMI has run continuously for over 10 years. He added that several petitions challenging these bans were pending before the Supreme Court since 2002. Now, the central government has banned SIMI for the sixth time.
He argued that there was a need to examine the constitutional validity of the provisions of the UAPA. He further argued that such bans are illegal and violate the fundamental rights of citizens and erstwhile members.
Adv. Humam Ahmad Siddiqui and Misbahul Islam, the two former members of SIMI have moved the petition. They are also contesting the latest two year ban, imposed in February this year, before a tribunal headed by Justice V.K. Shali of Delhi High Court.
The writ petition argues that the provisions of the said Act are not only intrinsically flawed but the manner in which they are operationalised by the central government must inevitably lead to breach of articles 14, 19 and 21 of the Constitution. It states that even though SIMI ceased to exist after the first ban on September 27, 2001, the government insists that it continues to exist as an underground organisation. It submits that the government’s claim in this regard is based almost entirely upon alleged confessional statements of accused persons arrested in various cases throughout the country, recorded by police officers. The petition argues that such material is inadmissible even against the accused persons themselves, by any recognised cannon of appreciation of evidence, leave alone SIMI which has absolutely no connection with these persons and which has no opportunity to challenge what has been purportedly stated by them, the petition says.
Ban on SIMI since 2001
The petition argues that the UAPA has become a ‘lawless law’ in the hands of the state; a weapon to suppress legitimate protest and dissent by whimsical and arbitrary invocation of the spectre of terrorism. It states that in SIMI’s case five successive UAPA tribunals have failed to check the propensity of the law enforcement agencies to make anything and everything “incriminating”, and connect it all to an alleged, clandestine SIMI. Examples of such indiscriminate incrimination range from a couplet by the famous poet Mirza Ghalib to sundry books and magazines in Urdu, including a Delhi Government publication in Urdu.
The first ban on SIMI was imposed vide order dated 27.9 2001. Since then SIMI has been under continuous ban till date, except for a brief hiatus between September 2005 and February 2006. On each occasion when the ban was imposed/ renewed in on 27.9.2001, 26.9.2003, 8.2.2006, 7.2.2008 and 5.2.2010 – it has been contested by erstwhile members of SIMI. On four of the five occasions the SIMI Tribunals have upheld the ban. On one occasion, in August 2008, the Tribunal adjudicating upon the ban order dated 7.2.2008 quashed the ban holding that it was vitiated by non-application of mind as the order was identical to the earlier order dated 8.2.2006.
On each of the four occasions when the respective tribunals upheld the order of ban upon SIMI, the orders were appealed in the Supreme Court. Thus, between September 2001 and November 2010 five petitions/ appeals against the successive orders of ban, or the order quashing the ban, have become pending before the Supreme Court.
The above mentioned writ petition is WP (Civil) No. 138 of 2012 before the Supreme Court. It was listed as Item No. 15 before the Court No. 7 on May 7, 2012 i.e. today. The petition was settled and argued by Uday U. Lalit, Senior Advocate.
Petitioners’ prayers
The petitioners have sought quashing of the order of the Home Ministry imposing sixth ban on SIMI.
Text of the prayers:
In the circumstances mentioned hereinabove, this Hon’ble court may be pleased to:
1. Quash notification No. S.O. 224 (E) dated February 3, 2012 published by the Ministry of Home Affairs in the Gazette of India Extraordinary, Part II Sec 3 Sub-section (ii) as being violative of Article 14, 19 and 21 of the Constitution.
2. Quash sections 2(1)(m), 2(1)(o), 2(1)(p), 3, 4, 10, 13, 35 and 41 of the Unlawful Activities (Prevention) Act 1967 as ultra vires the basic structure of the Constitution, particularly Articles 14, 19 and 21 of the Constitution;
3. Declare that the bans on Students Islamic Movement of India (SIMI), imposed vide notification numbers, (i) S.O. 960 (E) dated 27.09.2001, (ii) S.O. 1113 (E) dated 26.09.2003, (iii) S.O. 191 (E) dated 08.02.2006, (iv) S.O. 276 (E) dated 07.02.2008, and (v) S.O. 260 (E) dated 260(E) dated 05.02.2010 under the Unlawful Activities Prevention Act, 1967 were void ab initio, being ultra vires Articles 14, 19 and 21 of the Constitution.
4. Declare that the Unlawful Activities (Prevention) Rules, 1968 are vague, unreasonable, unguided and violative of Article 14 19 and 21 of the Constitution;
5. Pass such other and further orders as this Hon’ble Court may deem fit and proper.