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 the ministry through Home secretary after hearing 61-year-old MehrajAzeem of Nishat Srinagar through his counsel Syed Musaib.
Assistant solicitor general of India Tahir Shamsi accepted the notice on behalf of the Union ministry.
Azeem pleads that on February 28 this year, the government of India declared JeI as an unlawful organisation with immediate effect without specifying 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 Home ministry went against the Act, which clearly states that the notification should specify the grounds on which it is issued and such other particulars as the Central government might consider necessary. “Grounds are not opinions or subsidiary evidence, they should comprise of facts which substantiate the notification, it should include particulars with regard to the dates of the offences, details of the FIRs registered by the police or the details of the pending prosecution,” the petitioner said, citing a SC judgment titled Vakil Singh 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 not subsidiary facts or evidential details”.
“Merely relying on the subjective satisfaction of the respondents overrides the basic freedom as guaranteed by the apex court in V.G Row case, which had reiterated that such sanctions cannot receive judicial approval as a general pattern,” the petitioner pleads.
Rules also state that the organisation, which has been declared unlawful, must be served a copy of the notification.
“Presumably even if certain material is available with the respondents, the same would constitute incriminating material against a single individual of the organisation and not against the organisation as a whole, and 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,” the petition reads.
The petitioner also submits that it is beyond the competence of the respondents to seek creation of a tribunal, or even extending the jurisdiction of the existing tribunal in J&K, as the same is covered by the Act governing administration of justice. It adds that the Union government lacks executive competence to enact such provision for Jammu and Kashmir.
“Therefore, creation of a tribunal in order to ensure the safeguards of the Act cannot be ensured because of the incompetence of the respondents (Home ministry) to ensure formation of the tribunal,” he said.
The petitioner said that Jamaat activists were detained before the ban was announced so that confessional statements extracted from them could be later used before the tribunal.