Holding

A declaration of an unlawful association under the Act must be based on an objective determination, and the Tribunal must conduct a judicial adjudication with appropriate disclosure or independent testing of the material, otherwise its order is invalid.

Summary

The Central Government declared Jamaat‑e‑Islami Hind an unlawful association under the Unlawful Activities (Prevention) Act, 1967, based on alleged statements questioning India's sovereignty. The declaration was referred to a Tribunal, which, relying on a résumé of intelligence reports and affidavits from officials who had no personal knowledge, confirmed the notification without allowing the association to effectively challenge the material. The Supreme Court held that the Central Government must make an objective determination and that the Tribunal's inquiry is a judicial proceeding requiring disclosure of the material or a procedure to test its credibility, in line with natural‑justice principles. The Court found that the Tribunal had merely accepted the Government’s version without independent assessment, rendering its order unsustainable. Consequently, the Court declared Sections 3(1) and 4 of the Act constitutional but quashed the Tribunal’s order and dismissed the writ petition, emphasizing that future tribunals must ensure a fair adjudicatory process.

Issues considered

The constitutionality of Sections 3(1) and 4 of the Unlawful Activities (Prevention) Act, 1967.
Whether the Central Government’s declaration of an association as unlawful requires an objective determination.
Whether the Tribunal’s inquiry under Section 4 is a judicial proceeding subject to the requirements of natural justice.
Whether the material on which the Tribunal relied must be disclosed to the association or examined by the Tribunal itself.
Whether the association’s right to form under Article 19(1)(c) is unreasonably restricted.

Legislation cited

Code of Civil Procedure, 1908
Constitution of Indias. Article 19(1)(c), s. Article 193, s. Article 19(4), s. Article 228
Indian Evidence Act, 1872
Indian Penal Code, 1860s. 153A, s. 153B
Unlawful Activities (Prevention) Act, 1967s. 3(1), s. 4, s. 5, s. 6, s. 9

Subjects

unlawful associationpreventive detentionnatural justiceobjective determinationtribunal adjudicationArticle 19confidentialityevidence disclosuredue process

Judgment

A JAMAAT-E-ISLAMI HIND
v.
UNION OF INDIA

DECEMBER 7, 1994

B [J. S. VERMA, S. P. BHARUCHA AND K. S. PARIPOORNAN, JJ.]

Unlawful Activities (Prevention) Act 1967-Sections 3 (1) and 4-
Constitutionality of-- Nature ofdetermination under-- Association declared
unlawful by the Central Government by notification- Confirmed by
Tribunal Materials before the Tribunal based on records and not personal
c knowledge of officers deposing before Tribunal-Sources of information
not disclosed either to association or to Tribunal-Whether Act requires
objective ·determination by Central Government-Whether proceedings
before Tribunal judicial in character-Nature of materials required for
determination by Trubuna/-Held objective determination by the Central
D Government requisite for declaring an association unlawful Proceedings
before Tribunal, held of an adjudicatory nature, distinguishing it from
opinion of Advisory Board under preventive detention law-Tribunal
cannot addicate its function to the Central Government-Materials on
which adjudication to be made must be in consonace with materials for
judicial determination-Tribunal can devise procedure to examine the
E materials and decide on non-disclosure-On this construction Act, held,
constitutional-Tribunal having merely acted on the version of the Central
Government, order in instant case, held unsustainable.

Constitution ofIndia. Article 19 (1) (CJ-Judicial Review.
F
Unlawful Activities (Prevention) Act 1967-Section 4-Natural -•
Justice- Confidentiality and non-disclosure of materials Jn public
interest-Disclosure of materials relied upon by Central Government, held,
subject to requirement of public interest and ordinary rules of evidence-
Confidentiality does not extend to Tribunal-Tribunal not to merely accept
G the opinion of the Central Government-Tribunal may devise suitable
procedure to itself examine the materials-Such course would satisfy the
m1mmum requirement of natural justice words and phrases-
"Adjudicating" and "decide"-Meaning of held, have a legal connotation
in an inquiry by Tribunal constituted by sitting judge of High Court-They
are the essential attributes of a judicial decision-Unlawful Activities
H (Prevention) Act 1967, Section 4.
316
JAMAAT-E-ISLAMI HIND v. U. 0. I. 317

By notification dated December 10, 1992, the Government of India A
declared the appellant-association to be an unlawful associa~ion within
the meaning of the Unlawful Activities (Prevention) Act 1967~ Citing
two instances, the notification stated that leaders of the appellant-
association had disclaimed and questioned the sovereignty and integrity
of India. The notification was referred to the Tribunal constituted
under the Act to adjudicate whether or not there was sufficient cause B
for declaring the association unlawful. The Tribunal confirmed the
notification.

The material before the Tribunal comprised a resume prepared on
the basis of intelligence reports, and the affidavits of two officers on
behalf of the Central Government, both of whom spoke only on the C
basis of records and not personal knowledge; affidavits in rebuttal on
behalf of the association; and the cross-examination of the deponents of
the affidavits.

The association appealed from the order of the Tribunal, and also
challenged the constitutionality of the Act and the Rules made D
thereunder in a writ petition.

It was contended for the appellant-association that none of the
grounds on which the notification was based, even if proved, would
constitute unlawful activity to render it an unlawful association under
the Act. It was further contended that the material produced by the E
Central Government was, at best, hearsay and even that without
disclosing the source, disabling the association from effectively
rebutting it. On the question of constitutionality, it was contended that
the inquiry contemplated under the Act was judicial in nature, which
must be in the form of an adjudication of a /is giving a reasonable
opportunity to the association to rebut the correctness of the allegations F
against it. If the provisions were not so construed, it was urged, they
would suffer the vice of unconstitutionality.

For the Central Government it was contended that the Act is in the
nature of a preventive detention law, and that the opinion under the
Act can be formed not only on the basis of legal evidence but also other G
materials including intelligence reports from undisclosed sources. It
was urged that the requirement of natural justice is satisfied by mere
disclosure of the information without disclosing the source of the
information.

Allowing the petition and appeal, this Court H
318 SUPREME COURT REPORTS· [1994] SUPP. 6 S.C.R

A HELD : (1) The determination by the Central Government of the
question whether any association is, or has become, an unlawful
association to justify a declaration under Section 3, must be based on
objective decision. It is only on the conclusion so reached in an
objective determination that a declaration can be made by the Central
Government. (332 BJ
B
(2) The inquiry before the Tribunal constituted under the Act is in
the nature of the a judicial proceeding. It is in the nature of an
adjudication of a /is between two parties. In Section 4, the words
"adjudicating" and "decide" have a legal connotation in an inquiry by
a Tribunal constituted by a sitting judge of a High Court. The Tribunal
c is required to 'decide' after notice to show cause by the process of
adjudicating the points in controversy. These are the essential
attributes of a judicial decision. [333 C, 334 DJ

Words and Phrases, Permanent Edition, Volume 2 and Shorter
Oxford English Dictionary on Historical Principles (3rd edn.), referred to.
D
(3) The penal consequences support the view that the inquiry
contemplated by the Tribunal under Section 4 of the Act is judicial in
char.acter since the adjudication made by the Tribunal is visited with
drastic consequences. (334 BJ
E (4) The test of factual existence of grounds amenable to objective
determination for adjudging the reasonableness of restrictions placed
on the right conferred by Article 19 (1) (c) to form associations is in the
scheme of the Act. (336 GJ

State ofMadras v. V. G. Row, [1952J SCR 597, followed.
F
(5) The nature of the inquiry preceding the order made by the
Tribunal under Section 4, and its binding effect, give to it the
characteristic of a judicial determination distinguishing it from the
opinion of the Advisory Board under the preventive detention laws.
The requirement of specifying the grounds, the disclosure of the facts
G
on which they are based, the adjudication of the existence of sufficient
cause for declaring the association to be unlawful after considering the
cause, if any, shown by the association are all consistent only with an
objective determination of the points raised in controversy in a judicial
scrutiny conducted by a Tribunal c9nstituted by a sitting High Court
H judge. It distinguishes the scheme under this Act from the requirement
JAMAAT-E-ISLAMI HIND v. U. 0. I. 319

under the preventive detention laws to justify the anticipatory action of A
preventive detention based on suspicion reached by a process of
subjective satisfaction. (334 C, 337 B to DJ

(6) Subject to the requirement of public interest, which must
always outweigh every other lesser interest, including the interest of the
association and its members, the ordinary rules of evidence and B
requirement of natural justice must be followed by the Tribunal.
Subject as aforesaid, all information and evidence relied on by the
Central Government has to be disclosed to the association to enable it
to show cause against the same. (337 H, FJ

(7) Unlawful activities of an association may quite often be
clandestine, and the source of the evidence of the unlawful activities C
may require continued confidentiality in the public interest. The non-
disclosure of sensitive information and evidence to the association and
its office bearers, whenever justified in public interest, does not imply
its non -disclosure to the tribunal as well. The Tribunal may, therefore,
devise a suitable procedure whereby it can itself examine and test the
credibility of the material before it decides to accept it for determining D
the existence of sufficient cause for declaring the association unlawful.
The materials need not be confined to legal evidence in the strict sense.
Such a course would satisfy the minimum requirement of natural
justice tailored to suit the circumstances of each case, while protecting.
the rights of the association and its member, without jeopardising the
public interest. This would also ensure that the process of adjudication E
is not denuded of its content and the decision ultimately rendered by
the Tribunal is reached by it on all points in controversy after
adjudication and not by mere acceptance of the opinion already formed
by the Central Government. (338 E, F, H, 339 A, BJ

John J. Morrissey and G. Donald Booher v. Lou B. Brewer 33 L Ed 2d F
484 and Paul Ivan Birzon v. Edward S. King, 469 F 2d 1241 [1972)
referred to.

(8) Judicial scrutiny implies a fair procedure to prevent the
vitiating element of arbitrariness. What is fair procedure in a given
case, would depend on the materials constituting the factual foundation G
of the notification and the manner in which the Tribunal can assess its
true worth. This has to be determined by the Tribunal keeping in view
the nature of its scrutiny, the minimum requirement of natural justice,
the fact that the materials in such matters are not confined to legal
evidence in the strict sense, and that the scrutiny is not a criminal trial.
[341 C, DJ H
320 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R

A (9) On the above construction, Section 3 (1) and 4 of the Act are
'declared to be constitutional. [341 H]

(10) In the instant case, no person has deposed from personal
knowledge whose veracity could be tested by cross-examination.
Assuming that it was not in public interest to disclose the identity of
B those persons or to produce them for cross-examination, some method
should have been adopted by the Tribunal to test the credibility of the
version. Tile Tribunal has merely proceeded to accept the version of the
Central Government without taking care to know even itself the source
from which it came or to assess the credibility of the version and
whether it is sufficient to inspire confidence justifying its acceptance in
c preference to the sworn denial of the witnesses examined by the other
side. The order of the tribunal cannot, therefore, be sustained.
(342 E, G, H]

CIVIL APPELLA~E JURISDICTION: Civil Appeal No. 3960 of
1994.
D
From the Judgment and Order dated 11.4.94 of the Unlawful Activities
(Prevention) Tribunal, New Delhi.

D. P. Gupta, Solicitor General, Soli J. Sorabjee, P. P. Malhotra, V. M.
Tarkunde, Raju Ramachandran, Ejaz Maqbool, Braj Kishore, (Ms. A.
E
Subhashini). Shakeel Ahmed, P. Panneshwaran, A. Subba Rao, M. Rama
Jois, A. K. Goel, S. R. Bhat for the appearing parties.

The Judgment of the Court was delivered by.

F J.S.VERMA, J. The above appeal by special leave is against the order
dated 11.4.1994 passed under Section 4 of the Unlawful Activities
(Prevention) Act, 1967 (hereinafter referred to as "the Act") by the one
- member Tribunal comprising of B. M. Lal, J., a judge of the Allahabad
High Court constituted under Section 5 of the Act, confirming the
declaration made by the Central Government in the notification dated
G 10.12.1992 issued under sub-section (1) of Section 3 of the Act that Jamaat-
E-Islami-Hind is an "unlawful association" as defined in the said Act. The
above writ petition has been filed in addition to the said appeal, in the
alternative,. for a declaration that the provisions of the said Act and the
Rules framed thereunder are unconstitutional and ultra vires some of the
H fundamental rights guaranteed in the Constitution oflndia.
JAMAAT-E-ISLAMI HIND v. U. 0. I. [J.S.VERMA, J.] 321

The Broad submission of Shri Soli J. Sorabjee on behalf of the saict A
association is, that in the event a construction is made of the provisions of
the said Act and Rules framed thereunder, which give a reasonable
opportunity to the association to show cause why it should not be declared
unlawful, these provisions would be saved from the vice of
unconstitutionality. The alternative challenge to the constitutionality of the
provisions is made, only if such a construction cannot be made. It is, B
therefore, appropriate that the proper construction of these provisions be
first made to enable consideration of the contention in the true perspective.

The material facts are these : The said association, namely, Jamaat- E -
Islami Hind, established in April 1948, is an All India organisation
professing a political, secular and spiritual credentials with belief in the C
oneness of God and universal brotherhood. Its activities are said to be for
promoting this objective. A notification dated 10.12.1992 published in the
official Gazette the same day was issued by the Government of India in the
Ministry of Home Affairs, as under:-

"MINISTRY OF HOME AFFAIRS D
NOTIFICATION

New Delhi, the 10th December, 1992
I

S.O. 898 (E). Whereas Shri Sirajul Hasan Amir of the E
Jamaat- e- Islami Hind (hereinafter referred to us JEIH)
declared in a meeting at Delhi held on the 27th May, 1990
that the separation of Kashmir from India was inevitable;

And whereas Shri Abdul Aziz, Naib Amir of JEIH,
addressing a meeting at Malerkotla on the 1st August, 1991, F
observed that the Government of India should hold Plebiscite
on Kashmir;

And whereas JEIH has been disclaiming and questioning the
sovereignty and territorial integrity of India ; ·

And whereas for all or any of the grounds set out in the G
preceding Paragraphs, as also on the basis of other facts, and
materials in its possession which the Central Government
considers to be against the public interest to disclose, the
Central Government is of the opinion that the JEIH is an
urilawful association : H
322 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R

A Now, therefore, in exercise of the Powers conferred by Sub-
section (1) of section 3 of the Unlawful Activities
(Prevention) Act 1967 (37of1967), the Central Government
hereby declares the 'Jamaat- e- lslami Hind' to be an
unlawful association, and directs, in exercise of the powers
conferred by the proviso to sub-section (3) of that section,
B that this notification shall, subject to any order that may be
made under section 4 of the said Act, have effect from the
date publication in the Official Gazette.

[No. Il/14034/2(i)/92-IS (DV)]

c T.N. SRIVASTAVA, Jt.Secy."

In accordance with the proviso to sub-section (3) of Section 3 of the
Act, the notification was brought into effect from the date of its publication
in the official Gazette. However, the act of bringing into effect the
notification from the date of its publication in the Official Gazette was
D struck down by the court and so the notification became effective from the
date of its confirmation by the Tribunal. The Central Government referred
the notification to the Tribunal for the purpose of adjudicating whether or
not there is sufficient cause for declaring the association unlawful, in
accordance with sub-section (1) of Section 4 of the Act. The Tribunal has
decided that there is sufficient cause for declaring the association .to be
E unlawful and, therefore, it has confirtned the said notification. In the
inquiry before the Tribunal, the only material produced by the Central
Government was a resume prepared on the basis of some intelligence
reports and the affidavits ofT. N. Srivastava, Joint Secretary in the Ministry
of Home Affairs and N. C. Padhi, Joint Director, I. B., both of whom spoke
only on the basis of the records and not from personal knowledge. In
F rebuttal, affidavits were filed on behalf of the association of persons whose
acts, it was alleged, constituted the grounds for issue of the notification
under Section 3(1) of the Act. The deponents of the affidavits were also
cross-examined. This constitutes the entire material on which the tribunal
rendered its decision on the question of existence of sufficient cause for
G declaring the association unlawful. The matter has, therefore, to be decided
on this material alone.

Briefly stated, the submission of Shri Soli J. Sorabjee leamed counsel
for the appellant-association is that none of the grounds on which the
notification is based, even assuming them to be proved, constitutes
H "unlawful activity" as defined in Section 2(f) of the Act to render the
JAMAAT-E-ISLAMI HIND v. U. 0.1. [J.S.VERMA, J.) 323

appellant an unlawful association within the meaning of Section 2(g) of the A
Act. Learned counsel also submitted that the only material produced at the
inquiry does not constitute legal evidence for the purpose inasmuch as it is ,
at best, here say and that too without disclosing the source from which it
emanates to give an opportunity to the appellant to effectively rebut the
same. The further submission is that in rebuttal there is legal evidence in the
form of sworn testimony of the persons to whom the alleged activitie~s are B
attributed. Shri Sorabjee contended that the inquiry contemplated by the
Tribunal under the Act is judicial in nature, which must be in the form of
adjudication of a /is giving a reasonable opportunity to the association to
rebut the correctness of allegations against it, and negative the same. It was
urged by Shri Sorabjee that in the absence of the provisions being so
construed they would suffer from the vice of unconstitutionality. The writ C
petition has been filed to project the alternative argument.

The learned Solicitor general, on the other hand contended that this
enactment is, in substance, in the nature of a preventive detention law and
the tribunal constituted under the Act is like an Advisory Board under the
preventive detention law required to examine only the existence of material D
sufficient to sustain formation of the opinion of the kind required for
preventive detention. Learned Solicitor General submitted that such opinion
can be formed not only on the basis of legal evidence . but also other
materials including intelligence reports received from undisclosed sources.
According to the learned Solicitor General, the requirement of natural
justice in such a situation is satisfied by mere disclosure of the information E
without disclosing the source of the information. This submission of the
learned Solicitor general is in addition to the claim of privilege "based on
public interest available under the general law.

The Central Government's right to claim privilege against disclosure of
certain information, in public interest, in the manner prescribed by law, is F
not in controversy. Confidentiality of matters in respect of which the
Central Government's claim of privilege is upheld by the Tribunal is not
questioned. The question is only of the material in respect of .which no
such privilege is claimed in the manner prescribed or of which the claim of
privilege is not upheld by the Tribunal.
G
It is in this background, the debate regarding the kind of material
required for examining the sufficiency of cause for declaring the
association unlawful in the inquiry held by the Tribunal, has to be
examined. We would now examine the provisions of the Act and the Rules
framed thereunder. The relevant provisions of the Act and the Rules are as
under:- H
324 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R

A The On/awful Activities (Prevention) Act, 1967

"2. Definitions- In this Act, unless the context otherwise requires,

(a) "Association" means any combination or body of individuals;

(b) "Cession of a part of the territory of India" includes admission of
B the claim of any foreign country to any such part ;

( c) "Prescribed" means prescribed by rules made under this Act;

(d) "Secession of a part of the territory of India from the Union"
includes the assertion of any claim to determine whether such part
C will remain a part of the territory oflndia;

(e) "Tribunal" means the Tribunal constituted under Section 5;

(f) "Unlawful activity", in relation to an individual or association,
means any action taken by such individual or association (whether
by committing an act or by words, either spoken or written, or by
D
signs or by visible representation or otherwise)

(i) Which is intended, or supports any claim, to bring about, on any
ground whatsoever, the cession of a part of the territory of India or
the secession of a part of the territory of India from the Union, or
which incites any individual or group of individuals to bring about
E such cession or secession ;

(ii) Which disclaims, questions, disrupts or is intended to disrupt the
sovereignty and territorial integrity of India :

(g) "Unlawful association" means any association -
F
(i) Which has for its object any unlawful activity, or which
encourages or aids persons to undertake any unlawful activity, or
of which the members undertake such activity ; or

(ii) Which has for its object any activity which is punishable under
G Section 153-A or Section 153B oflndian Penal Code, 1860 (45 of
1860) , or which encourages or aids persons to undertake any such
activity, or of which the members undertake any such activity:

Provided that nothing contained in sub-clause (ii) shall apply
to the State of Jammu and Kashmir.
H xxx xxx xxx
JAMAAT-E-ISLAMI HIND v. U. 0. I. [J.S.VERMA, J.] 325

CHAPTER II A
UNLAWFUL ASSOCIATIONS

3. Declaration of an association as unlawful (1) if the Central
Government is of opinion that any association is or has become, an
unlawful association, it may, by notification in the Official B
Gazette, declare such association to be unlawful.

(2) Every such notification shall specify the grounds on which it is
issued and such other particulars as the Central Government may
consider necessary :
c
Provided that nothing in this sub-section shall require the Central
Government to disclose any fact which it considers to be against
the public interest to disclose.

(3) No such notification shall have effect until the Tribunal has, by an
order made under Section 4, confirmed the declaration made D
therein and the order is published in the Official Gazette:

Provided that if the Central Government is of opinion that
circumstances exist which render it necessary for that Government·
to declare an association to be unlawful with immediate effect, it
may, for reasons to be stated in writing, direct that the notification E
shall, subject to any order that may be made under Section 4, have
effect from the date of its publication in the Official Gazette.

xxx xxx xxx
4. Reference to Tribunal (l) where any association has been declared F
unlawful by a notification issued under sub-section (1) of Section
3, the Central Government shall, within thirty days from the date
of the publication of the notification under the said sub-section,
refer the notification to the Tribunal for the purpose of
adjudicating whether or not there is sufficient cause for declaring G
the association unlawful.

(2) On receipt of a reference under sub-section (1) the Tribunal shall
call upon the association affected by notice in writing to show
cause, within thirty days from the date of the service of such
notice, why the association should not be declared unlawful. H
326 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R

A (3) After considering the cause, if any shown by the association or the
office-bearers or members thereof, the Tribunal shall hold an
inquiry in the manner specified in Section 9 and after calling for
such further information as it may consider necessary from the
Central Government or from any office-bearer or member of the
association, it shall decide whether or not there is sufficient cause
B for declaring the association to be unlawful and make, ·as
expeditiously as possible and in any case within a period of six
months from the date of the issue of the notification under sub-
section (1) of Section 3, such order as it may deem fit either
confirming the declaration made in the notification or cancelling
the same.
c
(4) The order of the Tribunal made under sub-section (3) shall be
published in the Official Gazette.

5. Tribunal-(1) The Central Government may, by notification in the
Official Gazette, constitute, as and when necessary, a tribunal to be
D known as the "Unlawful Activities (Prevention) Tribunal"
consisting of one person, to be appointed by the Central
Government :

,Provided that no person shall be so appointed· unless he is a judge
of a High Court.
E xxx xxx xxx
(5) Subject to the Provisions of Sections 9, the Tribunal shall have
power to regulate its own procedure in all matters arising out of
the discharge of its functions including the place or places at
which it will hold its sittings.
F
· (6) The Tribunal shall , for the purpose of making an inquiry under
this Act, have the same powers as are vested in a civil court under
the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit,
in respect of the following matters, namely : -

G (a) the summoning ~d enforcing the attendance of any witness and
examining him on oath;

(b) the discovery and production of·any document or other material
object producible as evidence;

(c) the reception of evidence of affidavits ;
H
JAMAAT-E-ISLAMI HIND v. U. 0. I. [J.S.VERMA, J.] 327

(d) the requisitioning of any public record from any court or office; A
(e) the issuing of any commission for the examination of witnesses.

(7) Any proceeding before the Tribunal shall be deemed to be a
judicial proceeding within the meaning of Section 193 and 228 of
the Indian Penal Code (45 of 1860) and the tribunal shall be B
deemed to be a civil court for the purposes of Section 195 and
Chapter XXXV of the Code of Criminal Procedure, 1898 (5 of
1898).

6. Period of operation and cancellation of notification.- (1) Subject
to the provisions of sub section (2), a notification issued under C
Section 3 shall, if the declaration made therein is confirmed by the
Tribunal by an order made under Section 4, remain in force for a
period of two years from the date on which the notification
becomes effective.

(2) Notwithstanding anything contained in sub-section (1), the Central
Government may, either on its own motion or on the application of D
any person aggrieved, at any time, cancel the notification issued
under section 3, whether or not the declaration made therein has
been confirmed by the Tribunal.

7. Power to prohibit the use of funds of an unlawful association ........ .
E
8. Power to notify places for the purpose of an unlawful assoc:iation.-
( I) Where an association has been declared unlawful by a
notification issued under section 3 which has became effective
under sub section (3) of that Section, the Central Government may,
by notification in the Official Gazette, notify any place which in its
opinion is used for the purpose of such unlawful association. F
Explanation-For the purpose of this sub-section, "Place"
includes a house or building or part thereof or a tent or vessel.
xxx xxx xxx

(3) If, in the opinion of the District Magistrate, any articles specified G
in the list are or may be use for the purpose of the unlawful
association, he may make an order prohibiting any person from
using the articles save in accordance with the written orders of the
District Magistrate.
xxx xxx xxx H
328 SUPREME COURT REPORTS [1994) SUPP. 6 S.C.R

A (8) Any person aggrieved by a notification issued in respect of place
under sub section (1) or by an order made under sub-section (3) or
sub-section (4) may, within thirty days from the date of the
notification or order, as the case may be, make an application to
the Court of the District Judge within the local limits of whose
jurisdiction such notified place is situate : -
B
(a) for declaration that the place has not been used for the purpose of
the unlawful association ; or

(b) for setting aside the order made under sub-section (3) or sub-
section (4),
c
and on receipt of the applications the Court of the District Judge
shall, after giving the parties an opportunity of being heard, decide
the question.

9. Procedure to be followed in the disposal of applications under this
D Act. Subject to any rules that may be made under this Act the
procedure to be followed by the tribunal in holding any inquiry
under sub-section (3) of Section 4 or by a court of a District Judge
in disposing of any applicaion under sub-section (4) of Section 7
or sub-section (8) of Section 8 shall, so far as may be, the
procedure laid down in the Code of Civil Procedure, 1908 (5 of
E
1908) , for the investigation of claims and the decision of the
Tribunal or the Court of the District Judge, as the case may be,
shall be final.

CHAPTER III
F OFFENCES AND PENALTIES

10. Penalty for being members of an unlawful association.- Whoever
is and continues to be a member of an association declared
unlawful by a notification issued under Section 3 which has
become effective under sub-section (3) of that section, or takes
G
part in meetings of any such unlawful association, or contributes
to, or receives or solicits any contribution for the purpose of , any
such unlawful association, or in any way assists the operations of
any such unlawful association, shall be punishable with
imprisonment for a term which may extend to two years, and shall
H also be liable to fine.
JAMAAT-E-ISLAMI HIND v. U. 0.1. [J.S.VERMA, J.] 329

11. Penalty for dealing with funds of an unlawful association.- If any A
person on ·whom a prohibitory order has been served under sub-
section (1) of Section 7 in respect of any money, securities or
credits pays, delivers, transfers or otherwise deals in any manner
whatsoever with the same ·in contravention of the prohibitory
order, he shall be punishable with imprisoment for term which
may extend to three years, or with fine or with both, and B
notwithstanding anything contained in the code of Criminal
Procedure, 1898 (5 of 1898), the court trying such contravention
may also impose on the person convicted an additional fme to
recover from him the amount of the moneys or credit or the market
value of the securities in respect of which the prohibitory order has C
been contravened or such part thereof as the court may deem fit.

12. Penalty for contravention of an order made in respect of an
notified place.- (I) Whoever uses any article in contravention of
a prohibitory order in respect thereof made under sub-section (3)
of Section 8 shall be punishable, with imprisonment for a term D
which may extend to one year, and shall also be liable to fme.

(2) Whoever knowingly and wilfully is in, or effects or attempts to
effect entry into, a notified place in contravention of an order
made under sub-section (4) of Section 8 shall be punishable with
imprisonment for a term which may extend to one year, and shall E
also be liable to fme.

13. 'Punishment for unlawful activities-(1) Whoever

(a) takes part in or commits, or
:
(b) advocates, abets, advises or incites the commission of,
F

any unlawful activity, shall be punishable with imprisonment for a
term which may extend to seven years, and shall also be liable to
fme.

(2) Whoever, in any way, assists any unlawful activity of any G
association, declared unlawful under Section 3, after the
notification by which it.has been so declared has become effective
under sub-section (3) of that section, shall be punishable with
imprisonment for a term which may extend to five years, or with
fine, of with both. H
330 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R

A (3) Nothing in this section shall apply to any treaty, agreement or
convention entered into between the Government of India and the
Government of any other country or to any negotiations therefor
carried on by any person authorised in this behalf by the
Government of India.

B 14. Offences to be cognizable. Notwithstanding anything contained in
the Code of Criminal Procedure, 1898 (5 of 1898), an offence
punishable under this Act shall be cognizable."

The Unlawful Activities (Prevention) Rules, 1968

C "2. Definitions.-In these rules unless the context otherwise
requires,-

(a) "the Act" means the Unlawful Activities (Prevention) Act, 1967
(37of1967);

D (b) "section" means a section of the Act;

(c) words and expressions used in these rules but not defined, and
defined in the Act, shall have the meaning respectively assigned to
them in the Act.

E 3. Tribunal and District Judge to follow rules of evidence.- (1) In
holding an inquiry under sub-section (3) of Section 4 or disposing
of any application under sub-section (4) of Section 7 or sub-
section (8) of Section 8, the Tribunal or the District Judge, as the
case may be, shall, subject to the provisions of sub-rule (2),
follow, as far as practicable, the rules of evidence laid down in the
F Indian Evidence Act, 1872 (1of1872). ·•
(2) Notwithstanding anything contained in the Indian Evidence Act,
1872 (1 of 1872), where any books ofaccount or other documents
have been produced before the Tribunal or the Court of the District
Judge by the Central Government and such books of account or
G other documents are claimed by that Government to be of a
confidential nature then, the Tribunal or the Court of the District
Judge, as the case may be, shall not,-

(a) make such books of account or other documents a part of the
H records of proceedings before it ; or
JAMAAT-E-ISLAMI HIND v. U. 0. I. [J.S.VERMA, J.) 331

(b) allow inspection of, or grant a copy of, the whole of or any extract A
from, such books of account or other documents by or to any
person other than a party to the proceedings before it.-

xxx xxx xxx

5. Documents which should accompany a reference to the Tribunal. B
Every reference made to the Tribunal under sub-section (1) of
Section 4 shall be accompanied by-

(i) a copy of the notification made sub-section (1) of Section 3, and

(ii) all the facts on which the grounds specified in the said notification C
are based:

Provided that nothing in this rule shall require the Central
Government to disclose any fact to the Tribunal which that
Government considers against the public interest to disclose.

xxx xxx xxx D

14. Power of Tribunal or District Judge to sit in private.- Where any
request is made by the Central Government so to do, it shall be
lawful for the Tribunal or the District Judge, as the case may be ,
to sit in private and to admit at such sitting such persons whose
presence is considered by the Tribunal or the District Judge, as the E
case may be, to be necessary for the proper determination of the
matter before it or him."

Clauses (f) and (g) of Section 2 contain definitions of "unlawful
activity" and "unlawful association" respectively. An "unlawful activity",
defined in clause (f), means "any action taken" of the kind specified therein F
and having the consequence mentioned. In other words, any action taken by
such individual or association constituting an "unlawful activity" must have
the potential specified in the definition. [Determination of these facts
constitutes the foundation for declaring an association to be unlawful under
sub -section (I) of Section 3 of the Act.] Clause (g) defines "unlawful G
association" with reference to "unlawful activity" in sub-clause (i) thereof,
and in sub-clause (ii) the reference is to the offences punishable under
section 153-A or Section 153-B of the Indian Penal Code. In sub-clause (ii),
the objective determination is with reference to the offences punishable
under Section 153-A of Section 153-B of the I. P. C. while in sub clause (i)
it is with reference to "unlawful activity" as defined in clause (f). These H
332 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R

A definitions make it clear that the determination of the question whether any
association is, or has become an unlawful association to justify such
declaration under sub-section (1) of Section 3 must be based on an
objective decision ; and the determination should be that "any action taken"
by such association constitutes an "unlawful activity" which is the object of
the association or the object is any activity punishable under Section 153-A
B or Section 153-B, I. P. C. It is only on the conclusion so reached in an
objective determination that a declaration can be made by the Central
Government under sub-section (I) of Section 3.

Sub-section (2) of Section 3 requires the notification issued under sub-
section (1) to specify the grounds on which it is issued and such other
c particulars as the Central Government may consider necessary. This
requirement indicates that performance of the exercise has to be objective
together with disclosure of the basis of action to the association. The
proviso to sub-section (2) permits the Central Government not to disclose
any fact which it considers to be against the public interest to disclose.
Ordinarily a notification issued under sub-section (1) of Section 3 becomes
D effective only on its confirmation by the Tribunal by an order made under
Section 4 after due inquiry; but in extraordinary circumstances, which
require that it may be brought into effect immediately, it may be so done
for 'reasons to be stated in writing' by the Central Government, and then
also it is subject to any order made by the Tribunal under Section 4 of the
Act. Section 3 requires an objective determination of the matter by the
E Central Government and Section 4 requires confirmation of the act of the
Central Government by the Tribunal.

Section 4 deals with reference to the Tribunal. Sub-section (1) requires
the Central Government to refer the notification issued under sub-section
( 1) of Section 3 to the Tribunal "for the purpose of adjudicating whether or
F not there is sufficient cause for declaring the association unlawful". The
purpose of making the reference to the Tribunal is an adjudication by the
Tribunal of the existence of sufficient cause for making the declaration. The
words "adjudicating" and "sufficient cause" in the context are of
significance. Sub-section (2) requires the Tribunal, on receipt of the
reference, to call upon the association affected 'by notice in writing to show
G
cause' why the association should not be declared unlawful. This
requirement would be meaningless unless there is effective notice of the
basis on which the declaratfon is made and a reasonable opportunity to
show cause against the same. Sub section (3) prescribes an inquiry by the
Tribunal, in the manner specified, after considering the cause shown to the
H said notice. The Tribunal may also call for such other information as it may
JAMAAT-E-ISLAMI HIND v. U. 0.1. [J.S.VERMA, J.] 333

consider necessary from the Central Government or the association to A
decide whether or not there is sufficient cause for declaring the association
to be unlawful. The Tribunal is required to make an order which it may
deem fit "either confirming the declaration made in the notification or
cancelling the same". The nature of inquiry contemplated by the Tribunal
requires it to weigh the material on which notification under sub-section {l)
of Section 3 is issued by the Central Government, the cause shown by the B
association in reply to the notice issued to it and take into consideration
such further information which it may call for, to decide the existence of
sufficient cause for declaring the association to be unlawful. 111e entire
procedure contemplates an objective determination made on the basis of
material placed before the Tribunal by the two sides ; and the inquiry is in
the nature of adjudication of a /is between two parties, the outcome of C
which depends on the weight of the material produced by them. Credibility
of the material should, ordinarily be capable of objective assessment. The
decision to be made by the Tribunal is "whether or not there is sufficient
cause for declaring the association unlawful". Such a determination requires
the Tribunal to reach the conclusion that the material to support the
declaration outweighs the material against it and the additional weight to D
support the declaration is sufficient to sustain it. The test of greater
probability appears to be the pragmatic test applicable in the context.

Section 5 relates to constitution of the Tribunal and its powers. Sub-
section (l) of Section 5 clearly provides that no person would be appointed
"unless he is a Judge of a High Court". Requirement of a sitting Judge of a E
High Court to constitute the Tribunal also suggests that the function is
judicial in nature. Sub-section (7) says that any proceeding before the
tribunal shall be deemed to be a "judicial proceeding" and the Tribunal
shall be deemed to be a "Civil Court" for the purposes specified. Section 6
deals with the period of operation and cancellation of notification. Section 8 F
has some significance in this context. Sub-section (8) of Section 8 provides
the remedy to any person aggrieved by a notification issued in respect of a
place under sub-section (1) or by an order made under sub-section (3) or
sub-section (4) by an application made to the District Judge who is required
to decide the same after giving the parties an opportunity of being heard.
This also indicates the judicial character of the proceeding even under G
Section 8. Section 9 prescribes the procedure to be followed in the disposal
of applications under the Act. Provisions of Section 9 of the Act lay down
that the procedure to be followed by the Tribunal in holding an inquiry
under sub-section (3) of Section 4 or by the District Judge under Section 8
shall, so far as may be, be the procedure prescribed by the code of Civil
Procedure for the investigation of claims. Sections 10 to 14 in Chapter lII H
334 SUPREME COURT REPORTS · [1994) SUPP. 6 S.C.R

A relate to "offences and penalties" which indicate the drastic consequences
of the action taken under the Act including a declaration made that an
association is unlawful. The penal consequences provided are another
reason to support the view that the inquiry contemplated by the Tribunal
under Section 4 of the Act is judicial in character since the adjudication
m..,de by the tribunal is visited with such drastic consequences.
B
In our opinion, the above scheme of the Act clearly brings out the
distinction between this statute and the scheme in the preventive detention
laws making provision therein for an Advisory Board to review the
detention. The nature of the inquiry preceding the order made by the
Tribunal under section 4 of the Act, and its binding effect, give to it the
C characteristic of a judicial determination distinguishing it from the opinion
of the Advisory Board under the preventive detention laws.

In Section 4, the words "adjudicating" and "decide" have a legal
connotation in the context of the inquiry made by the Tribunal constituted
by a sitting Judge ofa High Court. The Tribunal is required to 'decide' after
D 'notice to show cause' by the process of 'adjudicating' the points in
controversy. These are the essential attributes of a judicial decision.

In Volume 2 of the Words and Phrases., Permanent Edition, by West
Publishing Co., some of the meanings given of "adjudicate; adjudication"
are as under : -
E
"An adjudication" essentially implies a .hearing by a court,
after notice oflegal evidence on the factual issue involved .....

xxx xxx xxx

Generally, "adjudication of any question implies submission
F
of question to a court ofrecord."

Volume I of the shorter Oxford English Dictionary on Historical
Principles, Third Edition , says, the word "adjudicate" means "to try and
determine judicially".
G
The reference to the Tribunal is for the purpose of adjudicating
whether or not there is sufficient cause for declaring the association
unlawful. Obviously the purpose is to obtain a judicial confirmation of the
existence of sufficient cause to support the action taken. The confirmation
is by a sitting High Court Judge after a judicial scrutiny of the kind
H indicated. This being the nature of inquiry and the purpose for which it is
JAMAAT-E-ISLAMI HIND v. U. 0. I. [J.S.VERMA, J.] 335

conducted, the materials on which the adjudication is to be made with A
opportunity to show cause given to the association, must be substantially in
consonance with the materials required to support a judicial determination.
Reference may be made at this stage of the decision in State of Madras v.
V.G. Row, [1952] SCR 597 on which both sides place reliance.

In State of Madras v. V.G. Row, [1952] S.C.R. 597, the question for B
decision related to the constitutional validity of a law empowering the state
to declare associations illegal by notification, wherein there was no
provision for judicial inquiry or for service of notification on the
association or its office bearers. The absence of a provision for judicial
inquiry and notice to the association of the basis for the action taken was
held to be an unreasonable restriction on the right to form associations C
under Articles 19(1) (c) read with Article 19 (4) of the Constitution as it
then stood. By the constitution (Sixteenth Amendment) Act, 1963, the
expression "the sovereignty and integrity of India or" was inserted prior to
"public order or morality" to permit reasonable restrictions to be imposed
also in the interests of the sovereignty and integrity of India in addition to
those in the interests of public order or morality. The significance, however, D
is that in V. G. Row, the absence of a provision for judicial inquiry to
scrutinise the reasonableness of restrictions on the exercise of the right
conferred by sub- clause (c) of clause (1) of Article 19 was the ground on
which the law was held to be constitutionally invalid. The test of
reasonableness of the restrictions imposed was indicated thus:-
E
" ....... .It is important in this context to bear in mind that the
test of reasonableness, wherever prescribed, should be
applied to each individual statute impugned, and no abstract
standard, or general pattern of reasonableness can be· laid
down as applicable to all cases. The nature of the right F
alleged to have been infringed, the underlying purpose of the
restrictions imposed, the extent and urgency of the evil
sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time, should all
enter into the judicial verdict. ...... "
G
(at page 607)

The argument of the learned Attorney General in V. G. Row placing
reliance of the decision in Dr. N. B. Khare v. The State of Delhi, [1950]
S.C.R. 519, wherein the subjective satisfaction of the Government
regarding the necessity for the externment of a person coupled with a H
•
336 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R

A reference of the matter to an Advisory Board was considered to be
reasonable procedure for restricting the right conferred by Article 19 (1)
(b)., was rejected. A distinction was drawn between the requirement for
preventive detention or externment of a person with declaration of an
association to be unlawful on the ground that the former was anticipatory or
based on suspicion whereas the latter was based on grounds which are
B factual and capable of objective determination by the Court. This
distinction was emphasised as under : -

" ...... These grounds, taken by themselves, are factual and not
anticipatory or based on suspicion. An association is allowed
to be declared unlawful because it "constitutes" a danger or
c "has interfered or interferes " with the maintenance of public
order or "has such interference for its object", etc. The
factual existence of these grounds is amenable to objective
determination by the court, ....... "

(emphasis supplied)
D (at page 609)

" ..... For all these reasons the decision in Dr. Khare 's case,
[1950] S.C.R. 519, is distinguishable and cannot -rule the
present case as claimed by the learned Attorney General.
Indeed, as we have observed earlier, a decision dealing with
E the validity of restrictions imposed on one of the rights
conferred by article 19 (1) cannot have much value as a
precedent for adjudging the validity of the restrictions
imposed on another right, even when the constitutional
criterion is the same, namely reasonableness, as the
conclusion must depend on the cumulative effect of the
F varying facts and circumstances of each case. "
c
(at page 611) I.

In· our opinion, tha test of factual existence of grounds amenable to
objective determination by the court for adjudging the reasonableness of
G restrictions placed on the right conferred by Article 19 (1) (c) to form
associations, in the scheme of the Unlawful Activities (Prevention) Act ,
1967, is equally applicable in accordance with the decision in V. G. Row. It
is, therefore, this test which must determine the meaning and content of the f
adjudication by the Tribunal of the exist!hce of sufficient cause for '
declaring the association to be unlawful rinder the Act. A different
H construction to equate the requirement of this Act with mere subject~ve
S. F. S. (P) LTD. v. RASULJEE [VENKATACHALA, J.] 237

property. The position will change only when partition takes A
place. It is, therefore, not possible to accept the submission
that the plaintiff who is admittedly the landlord and co-owner
of the premises is not the owner of the premises within the
meaning of section 13 (l) (f). It is not necessary to establish
that the plaintiff is the only owner of the property for the
purpose of section 13 (I) (f) as long as he is a co-owner of B
the property being at the same time the acknowledged
landlord of the defendants ......... We are of the opinion that
co-owner is as much an owner of the entire property as any
. sole owner of a property is."

The owner in the expression 'if he is the owner' in Section 13 (l) (f) of C
the West Bengal Tenancy Act, 1956 when as opined by this Court ought to
be regarded as 'the co-owner; inasmuch as 'the owner', like any sole owner
of property, there would be no justification for us to hold that 'the non-
residential building which is his own' in Section 10 (3) (a) (iii) of the Act,
can only be that of its absolute 'owner' and not of its 'co-owner'.
D
Therefore, we have no hesitation in reaching the conclusion that the
respondents, who are carrying on the business of Mis Fakruddin and
Company in non-residential building No. 151, Linghi Chetty Street Madi:as,
of which they are co-owners can be regarded as landlords, who are
occupying their own non-residential building envisaged under clause (iii) of E
Section IO (3) (a) of the Act, as would disentitle them to retain the benefit
of the- eviction order made by the Rent Controller against the tenant in
respect of the petition non-residential building at the instance of the
deceased respondent-I, for carrying on his business on the ground that he
did not occupy his own non-residential building for the purpose.
Consequently, the eviction order of the Rent Controller as affirmed by the F
Appellate, Authority and the High Court, which is under challenge in this
appeal, calls to be set aside taking into consideration the developments
which have taken place during its pendency in this Court.

However, it was argued on behaif of respondents 2 to 11 that even if
the non-residential building where respondent- I was carrying on the G
partnership business of Mis Fakruddin and Company, for the carrying on of
which he wanted to get possession of the non-residential building in
occupation of the appellant-tenant had come to be owned by respondents 2
·to I I because of the death of respondent- I during the pendency of the
present appeal, they could not be denied the benefit of eviction order under H
238 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R . )
,r
'
A appeal got by the deceased respondent-I under section IO (3)(a) (iii) of the
Act. What was submitted on behalf of respondents 2 to I I was that a
proceeding for eviction under the Act should be regarded as having created
a vested right when the eviction order of the Controller was affirmed by the
High Court in a revision petition allowed under the Act and an appeal
pending in this Court under Article I36 of the Constitution against that
eviction order, being special appeal provided for under the Constitution
cannot be considered as a continuation eviction proceeding as would entitle
this Court to deny the relief got by a party from the Rent Controller and the
High Court because of the subsequent developments taking place during the
pendency of the appeal in this Court. We find it difficult to accede to the
c said submission ma4e on behalf of respondents 2 to I I in this appeal.

Section IO (3) (a) (iii) of the Act confers a right on a landlord to ~e
advantage of the ground available thereunder to evict his/her tenant from a
non-residential building. The right conferred under that provision of the Act
is not an accrued right. As held by the Privy Council in Abbott v. Ministers
D for Land, [I895] AC 425, that a mere right to take advantage of the
provision of an Act is not an accrued right and this position is accepted by
this Court in Kanaya Ram and Others v. Rajender Kumar and Others,
[I 985] 1 SCC 436, as well. Therefore, if a landlord under the Act obtains an
eviction order in respect of a non-residential building against the tenant
taking advantage of the right conferred upon him in that regard under
E section IO (3) (a) (iii) of the Act such eviction order does not create in him
an indefeasible vested right when it has not become final and conclusive,
having become the subject of an appeal under Article 136 of the
Constitution, where this Court has the power to annual such eviction order,
if the circumstances so warrant. In Pasupuleti Venkateswarlu v. The Motor
F and General Trade, (1975] 1SCC770, where a three Judge Bench of this
Court had an occasion to deal about the jurisdiction and property of Court
taking note of the circumstances which come into being after the
commencement of the eviction proceeding under a Rent Control
Legislation, which will have a fundamental impact on the right to relief or
the manner of moulding it, explained the legal position thus :
G
" .. It is basic to our processual jurisprudence that the right to
relief must be judged to exist as on the date a suitor institutes
the legal proceeding. Equally cleru- is the principle that the
procedure is the handmaid and not the mistress of the judicial
process. If a fact, arising after the /is has come to court and
H
JAMAAT-E-ISLAMI HIND v. U. 0. I. [J.S.VERMA, J.) 339

need not be confined only to legal evidence in the strict sense. Such a A
procedure would ensure that decision of the Tribunal is an adjudication
made on the points in controversy after assessing the credibility of the
material it has chosen to accept, without abdicating its function by merely
acting on the ipse dixit of the Central Government. Such a course would
satisfy the minimum requirement of natural justice tailored to suit the
circumstances of each case, while protecting the rights of the association B
and its members, without jeopardising the public interest. This would also
ensure that the process of adjudication is not denuded of its content and the
decision ultimately rendered by the Tribunal is reached by it on all points in
controversy after adjudication and not be mere acceptance of the opinion
already formed by the Central Government.
c
In John J. Morrissey and G. Donald Booher v. Lou B. Brewer, 33 L.
Ed. 2nd 484, the United States Supreme Court, in a case of parole
revocation, indicated the minimum requirements to be followed, as under :

"..... Our task is limited to deciding the minimum
requirements of due process. They include (a) written notice D
of the claimed violations of parole; (b) disclosure to the
parolee of evidence against him; (c) opportunity to be heard
in person and to present witnesses and documentary
evidence; (d) the right to confront and cross examine adverse
witnesses (unless the hearing officer specifically finds goods
cause for not allowing confrontation) (e) a "neutral and E
detached" hearing body such as a traditional parole board,
members of which need not be judicial officers or lawyers;
and (t) a written statement by the factfinders as to the
evidence relied on and reasons for revoking parole. We
emphasize there is no thought to equate this second stage of
parole revocation to a criminal prosecution in any sense. It is F
a narrow inquiry : the process should be flexible enough to
consider evidence including letters, affidavits, and other
material that would not be admissible in an adversary
criminal trial."

(Emphasis supplied) G

(at pages 498-499)

In Paul Ivan Birzon v. Edward S. King, 469 F. 2d. 1241 (1972),
placing reliance on Morrissey, while dealing with a similar situation, when
confidential information had td be acted ·on, it was indicated that the H
340 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R

A credibility issue could be resolved by the Board retaining confidentiality of
the information but assessing the credibility itself, and a modified
procedure was indicated as under :-
'-.
".... the board was required to decide whether it would
believe the informants or the parolee and his witnesses. The
B infirmity that we see in the hearing and determination by the
parole board is that it resolved the credibility issue solely on
the basis of the state report, without itself taking the
statement from the informants. Thus the board had no way of
knowing how reliable the informants were and had no real
basis on which to resolve the credibility issue against the
c parolee ....

We do not mean to intimate that the board should have taken
testimony from the informants at the hearing and given the
parolee the opportunity to cross-examine. What we do mean
is that the board should have received the information
D directly from the informants (although not necessarily in the
presence of the parolee), instead of relying solely on the state
report.• The board could then have reached its own
conclusions about the relative reliability of the informants'
statements and those of the parolee ~d his witnesses.

E Similarly, the board could then have made its own decision
about how realistic were the claims of potential danger to the
informants or the state parole officer if their identity was
disclosed, instead of placing exclusive reliance on the state
report. Thus, we hold that, in relying exclusively on the
written synopsis. in the state report, which was the only
F evidence of a parole violation, in the face of the parolee's
denial and his presentation of the testimony of other
witnesses, the revocation of Satz's parole was fundamentally
unfair to him and was a denial of due piOcess of law."

(at pages 1244-1245)
G
Such a modified procedure while ensuring confidentiality of such
information and its source, in public interest, also enables thef adjudicating
authority to test the credibility of the confidential information for the
purpose of deciding whether it hit;; to be preferred to the conflicting
evidence of the other side. This modified procedure satisfies the minimum
H requirements of natural justice and also •retains the :basic elements of an
JAMAAT-E-ISLAMI HIND v. U. 0. I. [J.S.VERMA, J.] 341

adjudicatory process which involves objective determination of the factual A

.. basis of the action taken.

An authorised restriction saved by Article 19(4) on the 'freedom
conferred by Article 19 ( 1) (c) of the Constitution has to be reasonable. In
this statute provision is made for the notification to become effective on its
confirmation by a Tribunal constituted by a sitting High Court Judge, on B
adjudication, after a show cause notice to the association, that sufficient
cause exists for declaring it to be unlawful. The provision for adjudication
by judicial scrutiny, after a show cause notice, of existence of sufficient
cause to justify the declaration must necessarily imply and import into the
inquiry, the minimum requirement of natural justice to ensure that the
decision of the Tribunal is its own opinion, formed on the entire available C
material, and not a mere imprimatur of the Tribunal affixed to the opinion
of the Central Government. Judicial scrutiny implies a fair procedure to
prevent the vitiating element of arbitrariness. What is the fair procedure in a
given case, would depend on the materials constituting the factual
foundation of the notification and the manner in which the Tribunal can
assess its true worth. This has to be determined by the Tribunal keeping in D
view the nature of its scrutiny, the minimum requirement of natural justice,
the fact that the materials in such matters are not confined to legal evidence
in the strict sense, and that the scrutiny is not a criminal trial. The Tribunal
should form its opinion on all the points in controversy after assessing-for
itself the credibility of the material relating to it, even though it may not be
disclosed to the association, ifthe public interest so requires. E
It follows that, ordinarily, the material on which the Tribunal can place
reliance for deciding the existence of sufficient cause to support the
declaration, must be of the kind which is capable of judicial scrutiny. In this
context, the claim of privilege on the ground of public interest by the
Central Government would be permissible and the tribunal is empowered to F
devise a procedure by which it can satisfy itself of the credibility of the
material without disclosing the same to the association, when public interest
so requires. The requirements of natural justice can be suitably modified by
the Tribunal to examine the material itself in the manner it considers
appropriate, to assess its credibility without disclosing the same to the
association. This modified procedure would satisfy the minimum G
requirement of natural justice and judicial scrutiny. The decision would
then be that of the Tribunal itself.
0

On the above construction made of the provisions of the Act, the
alternative argument relating to constitutionality does not merit
consideration. H
342 SUPREME COURT REPORTS (1994] SUPP. 6 S.C.R

A Having indicated the requirements of a valid adjudication by the
Tribunal made under the Act, we now proceed to examine the merit of this
case.

The allegations made by the Central Government against the ·<
association Jamaat-E-Islami Hind- were totally denied. It was , therefore,
B necessary that the Tribunal should have adjudicated the controversy in the
manner indicated. Shri Soli J. Sorabjee, learned counsel for the association,
Jamaat-E-Islami Hind, contended that apart from the allegations made
being not proved, in law such acts even if proved, do not constitute
"unlawful activity" within the meaning of that expression defined in the
Act. In the present case, the alternative submission of Shri Sorabjee does
C not arise for consideration on the view we are taking on his first
submission. The only material produced by the Central Government to
support the notification issued by it under Section 3 (1) of the Act, apart
from a resume based on certain intelligence reports, are the statements of
Shri T. N. Srivastava, Joint Secretary, Ministry of Home Affairs and Shri
N. C. Padhi, Joint Director, I. B. Neither Shri Srivastava nor Shri Padhi has
D deposed to any fact on the basis of personal knowledge. Their entire version
is based on official record. The resume is based on intelligence reports
submitted by persons whose names have not been disclosed on the ground
of confidentiality. In other words, no person has deposed from personal
knowledge whose veracity could be tested by cross-examination. Assuming
that it was not in public interest to disclose the identity of those persons or
E to produce them for cross-examination by other side, some method should
have been adopted by the Tribunal to test the credibility of their version.
The Tribunal did not require production of those persons before it, even in
camera, to question them and test the credibility of their version. On the
other hand, ilie persons to whom the alleged unlawful acts of the
associations are attributed filed their affidavits denying the allegations and
F also deposed as witnesses to rebut these allegations. In such a situation, the
Tribunal had no means by which it could decide objectively, which of the
two conflicting versions to accept as credible. There was thus no objective
determination of the factual basis of the notification to amount to
adjudication by the Tribunal, contemplated by the statute. The Tribunal has
merely proceeded to accept the version of the Central Government without
G t.aking care to know ev~n itself the source from which it came or to assess
credibility of the version sufficient to inspire confidence justifying its
acceptance in preference to the sworn denial of the witnesses examined by
the other side. Obviously, the Tribunal did not properly appreciate and fully
comprehend its role in the scheme of the statute and the nature of
adjudication required .to be made by it. "the order of the Tribunal cannot,
H therefore, be sustained.
JAMAAT-E-ISLAMI HIND v. U. 0. I. [J.S.VERMA, J.] 343

In this view of the matter, the challenge to the constitutionality of the A
said Act made in the writ petition does not survive.

Needless to say, our conclusion on the appeal is based upon the
material placed before the Tribunal and its treatment of it. Our conclusion
shall not be taken to debar action under the said Act against the association
hereafter if the necessary material is available. B
Consequently, the civil appeal is allowed. The order dated 11.4.1994
passed by the Tribunal is quashed. The writ petition is dismissed

U.R. Appeal allowed
Petition dismissed. C