Written by Muzamil Jaleel | New Delhi | May 3
A bench headed by Chief Justice of India R M Lodha Friday directed that all petitions and appeals filed by erstwhile SIMI members against the ban on the organisation be placed before a three-judge bench for final disposal on August 14.
The bench, however, refused to issue interim orders to the tribunal, which has been set up to examine the ban on SIMI for the seventh time in a row.
“The tribunal has to function in accordance with the orders of this court. Our orders are clear. We don’t have to keep repeating our orders. No interim directions (are to be issued) for now,” said the bench, as the counsel for the petitioners — two erstwhile SIMI members challenging the ban — sought directions for the tribunal judge.
The counsel, Ashok Agarwal, pleaded that the tribunal must be asked to adhere to the rules of evidence and not go only by the confessional statements, extracted from the alleged members. “The entire adjudication has become farcical since it is based either on these doubtful confessions or secret documents that are places only for the eyes of the judge,” he argued.
But the court opted to simply fix the matter for final hearing in August and asked the registry to place all related cases together.
There are six appeals against the decision to validate Centre’s ban on SIMI by various Unlawful Activities (Prevention) Tribunals since it was first banned in September 2001 and two writ petitions challenging the 2012 and 2014 ban notifications and various provisions of the UAPA Act pending before the apex court.
Agarwal said “the issues before the apex court have implications that transcend the issue of the ban on SIMI and affect the criminal justice jurisprudence as well as the fundamental rights jurisprudence of the country”.
Here’s what is before the apex court
* The Tribunal led by Justice Sanjiv Khanna had in 2010 treated confessions by accused persons to police or while in police custody, which were produced before the tribunal by the deposing police officers, as “admissions by deponent accused”. Counsel Ashok Agarwal says this is “misconceived and legally untenable attempt to overturn the rule against hearsay”. He says, “The rule against hearsay is fundamental to the criminal justice jurisprudence of this country. Therefore, the Supreme Court’s decision on this issue will have implications that transcend the issue of ban upon SIMI.”
* The other important issue is to adjudicate as to how should the tribunal interpret the expression “as far as practicable” in the UAPA rules regarding applicability of the evidence act. “In the Jamat-e-Islami Hind case, the apex court has held that the material produced before the tribunal should be ‘capable of objective assessment’. But most of the material produced before the SIMI tribunals by the government are confessions or secret material, neither of which is capable of objective assessment,” Agarwal says.
* The writ petition of the erstwhile SIMI members raises this issue. “Whether it would not be a grave error to interpret rule 3(1) of the UAP Rules to mean that ‘only general principles of evidence are applicable to the extent practicable’, merely because the said rule qualifies the requirement to follow ‘the rules of evidence laid down in the Indian Evidence Act, 1872’ with the prefix ‘as far as practicable’? The meaning of the first expression is completely different from the actual rule under the Act,” the writ petition says. “Whether the rule against hearsay is not part of the substantive law of evidence? If yes, then whether sacrificing this rule, allegedly on the altar of practicability, does not amount to negating the possibility of the tribunal constituted under the UAPA of making an independent, ‘judicial determination’ upon the reference made to it?”
* The erstwhile SIMI members have also questioned the permissibility “to rely upon alleged confessional statements, recorded by police in connection with various offences, to indict SIMI in proceedings before the UAPA tribunal”. Agarwal says these statements are not admissible. “To treat these statements as capable of forming the basis for imposing a ban under the UAPA is a travesty,” he says.
* The writ petition also questions the amendment to UAPA that enables the government to extend the duration of ban from two years to five years and terms it arbitrary. Agarwal says in its “background note” to the parliamentary select committee that scrutinised the proposed Amendment Act, the home ministry had sought to justify this amendment, saying it will reduce the cost of administering this Act. “This is hardly a basis to curb the fundamental rights of the citizens,” he says.* The petition questions the continuous ban on SIMI, asking “can the central government permanently deny the fundamental right of freedom of association under article 19 (1) (C)”. Agarwal says UAPA provides for a ban for a maximum period of two years, which was subsequently extended to five years by an amendment last year but SIMI is under uninterrupted ban for almost 13 years. “Is this uninterrupted ban legal? And can the central government rely upon older cases filed against alleged SIMI activists from the period as far as 2001 to justify its ban?” he says.