The High Court on Monday asked the Union home ministry to reply by April 22 to a petition challenging the banning of Jamaat-e-Islami, J&K.
A bench of Justice TashiRabstan issued the notice to theministry through Home secretary after hearing 61-year-old MehrajAzeem of NishatSrinagar through his counsel Syed Musaib.
Assistant solicitor general of India Tahir Shamsi acceptedthe notice on behalf of the Union ministry.
Azeem pleads that on February 28 this year, the governmentof India declared JeI as an unlawful organisation with immediate effect withoutspecifying the grounds, which is mandatory under the Unlawful Activities(Prevention) Act, 1967 that was invoked to ban it.
The petition said the notification issued by the Homeministry went against the Act, which clearly states that the notificationshould specify the grounds on which it is issued and such other particulars asthe Central government might consider necessary. “Grounds are not opinions orsubsidiary evidence, they should comprise of facts which substantiate thenotification, it should include particulars with regard to the dates of theoffences, details of the FIRs registered by the police or the details of thepending prosecution,” the petitioner said, citing a SC judgment titled VakilSingh vs State of J&K, 1974.
The petitioner said that according to the judgment the”grounds must contain the pith and substance of primary facts but notsubsidiary facts or evidential details”.
“Merely relying on the subjective satisfaction of therespondents overrides the basic freedom as guaranteed by the apex court in V.GRow case, which had reiterated that such sanctions cannot receive judicialapproval as a general pattern,” the petitioner pleads.
Rules also state that the organisation, which has beendeclared unlawful, must be served a copy of the notification.
“Presumably even if certain material is available with therespondents, the same would constitute incriminating material against a singleindividual of the organisation and not against the organisation as a whole, andthe same has to be dealt in accordance with the law of land and could not beused to muzzle and gag an entire political organisation having decades ofexistence,” the petition reads.
The petitioner also submits that it is beyond the competenceof the respondents to seek creation of a tribunal, or even extending thejurisdiction of the existing tribunal in J&K, as the same is covered by theAct governing administration of justice. It adds that the Union governmentlacks executive competence to enact such provision for Jammu and Kashmir.
“Therefore, creation of a tribunal in order to ensure thesafeguards of the Act cannot be ensured because of the incompetence of therespondents (Home ministry) to ensure formation of the tribunal,” he said.
The petitioner said that Jamaat activists were detainedbefore the ban was announced so that confessional statements extracted fromthem could be later used before the tribunal.