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By Kirthi Jayakumar

The judgment of Chief Justice M.Y. Eqbal and Justice T.S. Sivagnanam of the Madras High Court, in P. Pugalenthi v. The Ministry of Home Affairs, The Unlawful Activities (Prevention) Tribunal, W.P. No. 23141 of 2010 and M.P. No. 1 of 2010, was delivered on September 30, 2010.

The petitioner had filed the writ petition under Article 226 of the Constitution of India and prayed for the quashing of an order passed by the Unlawful Activities (Prevention) Tribunal (“the Tribunal”), on October 6, 2010, that had rejected the petition filed by the petitioner under sub-section 4(3) of the Unlawful Activities (Prevention) Act, 1967 (“the Act”). The crux of the facts were that the first respondent, namely, the Union of India, had issued a notification dated May 17, 2010 under sub-section 3(1) and the allied proviso to sub-section 3(3) of the Act, in the course of which it declared that the Liberation Tigers of Tamil Eelam (“the LTTE”) was an unlawful association. The petition claimed that the petitioner was a sympathiser of the LTTE and had a right to appear before the Tribunal. It was further contended that the Tribunal was required to adjudicate whether or not there was sufficient cause for declaring the association unlawful. It was contended by the petitioner that the Tribunal was under an obligation to give an opportunity to be heard before declaring a person or association as unlawful under the Act.
The Tribunal rejected the petition filed by the petitioner on the grounds, inter alia, that the tribunal had had occasion to consider the submissions made by other persons, including the political leader Mr. Vaiko, and none of the submissions made by the petitioner transcended the arguments advanced by Mr. Vaiko. The core contentions of the petitioner were that the LTTE itself was not present in India, but that its supporters and sympathisers were. This being a given, it was contended that notices under sub-section 4(2) of the Act should not only have to be sent to the LTTE in Sri Lanka but also to the alleged sympathisers, supporters and agents, all of whom were present in India. It was submitted by the petitioner, that unless the process prescribed under sub-section 4(2) of the Act was completed, the tribunal could not have commenced the actual process of adjudication under sub-section 4(3) of the Act.

The respondents, however, drew the attention of the court to the relevant provisions of the Act, and went on to submit that the tribunal had fully complied with all the requirements under the Act. Section 3 of the Act empowers the Central Government to declare any association to be unlawful through a notification in the official gazette, if the Central Government is of the opinion that such an association has become an unlawful association. Sub-section (2) to section 3 of the Act provides that such notification shall specify the grounds on which it is issued and such other particulars as the Central Government may consider necessary. However, the Central Government is not required to disclose any fact which it considers to be against the public interest. Section 4 of the Act provides that if any association is declared unlawful under section 3, the Central Government shall within thirty days from the date of publication of the notification, refer it to the Tribunal for the purpose of adjudicating whether or not there is sufficient cause for declaring the association unlawful. The Tribunal shall then call upon the association affected by notice to show cause and then, after holding an enquiry and adjudicating upon it, either confirm or cancel the said notification.

Section 7 of the Act lays down the provisions with regard to the power of the Central Government to prohibit the use of funds of the unlawful association. According to this section, after the association has been declared unlawful by a notification issued under section 3, the Central Government may issue a prohibitory order for the use of funds of the unlawful association. Sub-section (4) of section 7 gives the right to any person aggrieved by such an order to make an application to the District Judge to establish that the moneys, securities or credits in respect of which prohibitory order has been made, are not being used or are not intended to be used for the purpose of the unlawful association. On receipt of such application, the Court of the District Judge shall decide the question.

Sub-section 8(8) of the Act makes it manifestly clear that any person aggrieved by the notification issued in respect of a place under sub-section 8(1) or by an order made under sub-section (3) of sub-section 8(4) may, within thirty days from the date of the notification or order, make an application to the Court of the District Judge for declaring that the place has not been used for the purpose of unlawful association, and the Court of the District Judge shall decide the same in accordance with law.

The Madras High Court held that the Tribunal had indeed given the petitioner a full opportunity to be heard, and it had, with due reasonableness, rejected the petition, thereby warranting no interference by the High Court. The writ petition was thus dismissed.

Although the case hinges upon an issue pertaining to natural justice, the judgment did not quite look at the merits of the case that were presented before the tribunal. In understanding natural justice, the court has not overreached itself. What natural justice mandates is the grant of an opportunity to be heard, and reasonably so. The Tribunal had, clearly, accorded that in the petitioner’s case. It is very essential that courts work in a way that is friendly to the aim of dispensing speedy justice. In keeping with this, the tribunal refused to hear the contentions of the petitioner, since they were essentially the same as those that were raised on an earlier occasion by Mr. Vaiko. The court cannot encourage the re-iteration of the same subject matter by hearing the very same line of arguments submitted in the context of the same dispute.

Counsel:

For Petitioner: Mr. M. Radhakrishnan

For Respondents: Mr. M. Ravindran, Additional Solicitor General of India; assisted by J.Ravindran, Assistant Solicitor General

Conciliation of the coerced!

Today would have been as good a day as any to hear the verdict of the Allahabad High Court in the Ayodhya title suit, writes Shadan Farasat.

Can two parties, who have been unable to come to a settlement for over 60 years, come to a settlement through an intervention of the Supreme Court? Two judges of the Supreme Court could not agree on an answer yesterday when they heard a Special Leave Petition to stay the impending decision of the Allahabad High Court on the title suit over the land where the Babri Masjid stood until 1992. The court eventually passed an order that abides with the Supreme Court’s tradition of issuing notice when two judges disagree on a grant of notice. The Court issued notice and granted a stay on delivery of judgment by the Allahabad High Court until September 28, 2010, when the matter is listed next before the Supreme Court. The Attorney General of India has been requested to be present in the Court for the next hearing.

Rear view of the Babri mosque before it was destroyed in 1992. Photograph by Shaid Khan.

But first, some background information. The Babri Masjid, as it was called, was built by Mir Baqi in Ayodhya in 1528 on the orders of Emperor Babur. It stood there as such until December 6, 1992 when it was demolished. On January 7, 1993 the President of India issued the Acquisition of Certain Area at Ayodhya Ordinance through which 67.703 acres of the Ram Janambhoomi-Babri Masjid Complex, as it came to be called by then, was acquired by the Central Government. Existing litigation in respect of this area abated. However, the President of India, under a reference under Article 143 of the Constitution, sought the opinion of the Supreme Court on whether such action on behalf of the government would be constitutional. In Ismail Faruqui v. Union of India, AIR 1995 SC 605, a five-judge bench of the Supreme Court held that this action of the Central Government was unconstitutional to the extent it abated all pending legal disputes before courts and referred the matter to the Allahabad High Court for decision on the multiple title suits, some of which had been pending since 1949. The Supreme Court has now stayed this judgment of the Allahabad High Court until September 28, 2010.

The odds against the petitioner before the Supreme Court were indeed high. A similar request had been made before the Allahabad High Court last week, and the majority had rejected it, with costs! If the High Court does not give the decision by October 1, one of the judges, Justice D.V. Sharma, will retire and the matter will have to be heard in its entirety once again by a reconstituted bench. The new decision will take a few more years. The Allahabad High Court had already tried mediation and conciliation, but failed. The petitioner, who is one of the twenty-seven parties in the suit, also had its bona fides in question, because it had failed to actively participate in the proceedings before the High Court. Finally and most importantly, none of the other parties to the suit were willing to consider a settlement at this belated stage and political settlement by various religious leaders and as many as three former prime ministers had also failed.

So what purpose did one of the judges of the Supreme Court see in coercing the parties into another (potentially) fruitless mediation process? The only answer is the resolution – or postponement – of possible law and order problems on the delivery of the judgment, if the judgment is seen as favouring one community over the other. However, unlike in 1992, the Central Government has already taken adequate measures, and all political parties and religious groups have advised restraint and promised to abide solely by the legal process. The mood of the country is also very different from 1992. So today would have been as good a day as any other to pass this judgment. While the Allahabad High Court decision would not have resolved all the disputes in respect of the issue, particularly relating to the emotions that may be attached to it, it would have been a step in that direction. By staying the decision of the Allahabad High Court, the Supreme Court may inadvertently be providing fodder to those who want to milk the issue politically in the future. While the Supreme Court does some more thinking until September 28, the country awaits anxiously.