Finally, The Law is King

On February 28, 2019, Union Ministry of Home Affairs of the Central Government of India issued Notification under Sub-section (1) and (3) of Section 3 of The Unlawful Activities (Prevention) Act, 1967 (37 of 1967). Under the said Act, Jamaat-e-Islami Jammu and Kashmir was declared as “Unlawful Association”. Relevant Notification issued for this purpose directed that this Notification shall, subject to any order that may be made under Section 4 of the said Act, have effect for a period of five years from the date of publication in the National Gazette”.

The ban came into force following February 14, 2019 terrorist attack in Pulwama (J&K) in which 40 CRPF personnel were martyred. Thereafter, arrests of its leaders including their activists are being made throughout the State. For every patriotic citizen of the country, the after effect of the ban is sending shivers down their spines after realising that this unlawful Organisation has been able to spread its tentacles not only throughout all the Districts of Kashmir Valley but also every District of Jammu Region, too, which includes Jammu city of Temples. It is quite possible its dreaded viruses may have affected Ladakh, the most peaceful Region of in the state.

Going back to the history of this banned organisation, it is found that its parent organisation known as Jamaat-e-Islami Hind (JeIH) was established in 1945 before Partition of India. In 1952, JeIH decided to split its Kashmir Branch on the ground that territory of J&K State has an alleged disputed status. Accordingly, a separate wing was established under the name of JeI J&K. Legal formalities were completed in November 1953 under the leadership of Maulana Ahrar and Ghulam Rasool Abdulla. Both of them had drafted its Constitution.

The then Chief Justice of Jammu & Kashmir High Court Late S Murtaza Fazal Ali under the provisions of the above said Act was appointed by the Central Government of India as Chairman of the Unlawful Activities (Prevention) Tribunal. The Tribunal held its proceedings in Delhi. The full text of the hotly-contested judgment is published in the aforesaid book in Pages 342 to 345. By way of co-incidence or otherwise under some nefarious designs recently declared unlawful organisation (JeI J&K) also raised its ugly head to sow seeds of separatism in the State of Jammu and Kashmir in that very year i.e. 1953. In the above stated Notification the Central Government has, in brief given the reasons: “JeI J&K is supporting claims for secession of a part of the Indian Territory from the Union and supporting terrorist and separatist groups fighting for this purpose by indulging in activities and articulations intended to disrupt the territorial integrity of India,” The Notification further says that if not banned it would continue advocating secession of the State of J&K from the Union of India while disputing the Accession.

In its history, for the first time, JeI had to face ban in the year 1975 during “national emergency period” when Sheikh Mohammad Abdullah after entering into accord with Smt. Indira Gandhi was ruling the State as Chief Minister and that accord had brought back the Sheikh Abdullah’s National Conference organisation into the mainstream politics. Sheikh Abdullah got an opportunity to impose ban in the State because in the rest of the country Indira Gandhi after the promulgation of ‘Emergency’ had also imposed ban on RSS. Sheikh Abdullah, had realised the threat to his existence in the State as an unchallenged ruler from JeI, and for this reason he availed of the opportunity to curb the activities of JeI. It was a short-lived ban because, after the lifting of the ‘Emergency’, the elections were held throughout the country and Indira Gandhi lost the power.

The second ban was imposed by the Central Government of India in the year 1990 when VP Singh was the Prime Minister and Jagmohan was the Governor of the J&K State and the State was under Governor’s Rule. This ban was imposed not under the Central Act but under the Jammu and Kashmir Criminal Law Amendment Act of 1983. JeI J&K was declared to be an ‘Unlawful Association’ by Notification SRO 146 dated April 16, 1990, which reads as under:

“Which encourages or aids persons and its sympathisers to undertake unlawful activities within the meaning of the Jammu and Kashmir Criminal Law Amendment Act of 1983;

Such persons and sympathisers and members aforesaid have for its objects, activities and actions which interfere and aim at interference with the public administration, the administration and the maintenance of law and order and which constitute a danger to the public peace;

Such persons and sympathisers and members aforesaid have for its objects, activities and action which are intended to encourage and which encourage, aid and incite the people to undertake activities which are offences punishable under Section 153-A and 153-B of the state Ranbir Penal Code;

Such persons and sympathisers and members aforesaid have for its objects, activities and actions which are intended or which may form a part of the scheme intend to threat or likely to threat or disrupt or likely to disrupt harmony between different religious groups of the State;

Such persons and sympathisers and members aforesaid have for its objects, activities and actions which are intended or which form part of the scheme intend to cause or likely to cause, fear, alarm and feeling of insecurity amongst members of different religious groups and communities in the State;

Such persons, sympathisers and members aforesaid by words, either spoken or written, or by signs or visible representation have indulged in activities e.g. on 3rd January, 1989, Ashraf Sahrai General Secretary in a statement criticised Shimla Agreement as a conspiracy and claimed that Kashmir issue could be settled only through self-determination. Similarly, on 1st February 1989, Syed Ali Shah Geelani asserted that elections were no substitute for self-determination; and Whereas, for all or any of the grounds set out in the preceding paragraphs as also on the basis of other facts and materials in the possession which the State Government considers to be against the public interest to disclose, the State Government is of opinion that the said Jamaat-e-Islami is an Unlawful Association.

Now, therefore, in exercise of the powers conferred by Sub- Section (1) of Section 3 of the Jammu and Kashmir Criminal law Amendment Act 1983, the Government of J&K hereby declares the aforesaid party to be an Unlawful Association.

Any person, whether an office bearer or a member of the aforesaid Association or otherwise interested, can make a representation in respect of this Notification to the Government of Jammu and Kashmir within a period of thirty days from the date of issuance of this notification, if he so desires. By order of the Governor

Sd/-

Addl. Chief Secretary to Government Home Department”

The writer of this piece was appointed as the Chairman of the Judicial Tribunal which was established under the above stated Act to go into the legal veracity of the administratively issued ban within a period of two years. The ban had expired thereafter within three years. Initially, the Tribunal had its two other members namely, Qazi Muzafar-ul-Din and Sardar Harcharan Singh Bahri. The members were of the cadre of District and Sessions Judges junior to me. At that time, I was the Senior District and Sessions Judge and placed in Special Grade. The first senior member was a Kashmiri Muslim, who initially attended one or two meetings in Jammu where Head Office of this Tribunal was established. Mr. Qazi received constant threats to his life and to his family members from the militants and he showed his inability to me to continue as member in those prevailing circumstances. I too experienced such type of threats but did not succumb. I conveyed the oral request of Mr Qazi to the then Governor (Late Shri Garesh Chander Saxena) who appointed Shri Harbans Lal, District & Sessions Judge as second Member in place of Mr Qazi.

The Tribunal thus became functional and proceedings started. The plaintiff State in the plaint filed before the Tribunal was accompanied by voluminous record consisting of the details of some international and prejudicial activities, copy of the Constitution of the Organisation, lists of schools, battle orders, extract of relevant DISIS which means Dosiers. In the plaint, the government had arrayed JeI as Defendant No. 1, Hakim Ghulam Nabi S/o Mubarak Shah R/o Muloo Chitragan-Shopian as Defendant No. 2. Defendant No. 3 was Mohammad Ashraf Sahrai and Defendant No. 4 was Syed Ali Shah Gelani. Service of the summons issued by the Tribunal could not be affected on Defendant No. 2 as he had gone underground. Defendant No. 3 after filing the counter to the plaint did not take part in the proceedings whileas, Defendant No. 4 Syed Ali Shah Geelani who is being projected as leader of the Association contested this case. Mr Geelani was lodged in Central Jail Naini (Allahabad now Prayagraj). The Tribunal held its proceedings on February 19, 1991 in the premises of above Central Jail Naini where all the relevant record of the case was handed over to him for filing the counter which was received in the Head Office of the Tribunal at Jammu on March 27, 1991.

Defendant No. 3—Ashraf Sahrai on September 4, 1991, had informed the Tribunal not to take part in the proceedings. Meanwhile, Mr Geelani Defendant No. 4 was shifted to Tihar Jail, Delhi. Further proceedings were held in the premises of Tihar Jail Delhi. Specially a Court was established within the Jail premises Mr. Geelani had personally appeared along with his Advocate Mr MH Baig, who remained “Dy Chief Minister of coalition Government of Cong-I & PDP and presently is the Member of Indian Parliament”. On the request of learned Advocate, the case was adjourned as he had made a request that he had to go through the record and the next date was fixed for September 7, 1991. These proceedings were resumed in the premises of Tihar Jail Delhi. Mr Baig (Advocate) had made written as well as oral statement that Mr Geelani onwards do not wish to take part in the proceedings. The plaintiff state in the accompanying Dossiers with the plaint in detail enumerated 48 incidents in seriatim showing the anti-national activities of the said Organisation.

Defendant No. 4 (Mr Geelani) had himself drafted the counter which was sketchy and lengthy prepared in high profile Urdu language, replete with parables quoted from holy Arabic literature expressed in Persian and Urdu Poetry. On the contrary, he had failed to give specific replies to the allegations made against his organisation as well as his person in a specific, precise legal manner. In a summary way I have recorded the crux of those objections in my above said book at pages 355 to 357. This could be done because I have a gift of the gab of having some working knowledge of eight constitutionally recognised languages (inclusive of Kashmiri) besides almost all the main local dialects which are spoken in the State of Jammu and Kashmir including a part of Pak occupied area (PoJK) of the State. With this gift of the Nature, I was able to read the mindset of thousand numbers of detained militants with whom I directly had conversations as senior Member of the Tribunal constituted under J&K Public Safety Act (PSA) as well as while acting as a Judge of J&K High Court because mostly I remained stationed in Srinagar. The findings of the Tribunal in a summary way are reproduced hereunder:-

“After carefully appreciating the voluminous evidence both documentary and oral led by the Plaintiff/State the Tribunal came to the view that it was proved beyond doubt that the Association in question ‘Jamaat-e-Islami’ J&K is preaching, propagating and advocating the following feelings, theories, ideologies, cults and claims:

“The Association aims to carve out Islamic State out of the present government established by law. The Association disputes the accession of J&K State with India and preaches time and again Secession of the State from the Union fold and induces youth by exhorting them that it would be Kashmiri’s who have to decide the fate of Kashmir and no one else. The Association levels unfounded allegations that the Central and the State Governments are taking measures to reduce the Muslim majority character of the State. The Association had also been criticising the authorities that the special status conferred on State vide Article 370 of the Indian Constitution stands eroded from time to time. The Association does not accept the validity of the J&K Constitution. The Association had been alleging that Kashmir issue is still unsolved and needs to be decided in accordance with the resolutions of UNO. The Association had been carrying on propaganda, which was spreading communal hatred in the State. Its activities and actions had an objective which was likely to threat or disrupt harmony between different religious groups of the State. The activities of the Association had been causing fear, alarm and feelings of insecurity amongst different religious groups and communities in the State by exhorting the general public to observe frequent hartaals. The Association had been interfering with the maintenance of supplies and services essential to the life of the people at large. Furthermore, the aims and objects of the Association are also to earn the odium of the people in general against the established government by levelling unsubstantiated charges of atrocities. These activities resulted in the interference with the public administration, administration of law and the maintenance of public order.

The aiding, undertaking and the propagation of the above stated feelings, cults, objective, claims etc as stated above by the Association in question or by its office bearer or activists fall squarely within the ambit of Section 2(b) and (c) of the Act as being the Commission of ‘Unlawful’ Activities by the Association in question.

For the reasons given above, the reference is accepted and the declaration that the JeI J&K is an ‘Unlawful Association’ made in the impugned notification number 146 dated April 16, 1990 is hereby confirmed. Let the copy of the judgment be sent to the Home Secretary, Government of J&K. Let the records of the case be also sent to the Home Ministry for safe custody.

Before parting with the judgment, we are constrained to observe it with a sincere hope that militancy in the Kashmir Valley—a heaven on this earth, would end sooner than expected. Violence is no solution to any problem. It only breeds hatred and adds to the miseries of innocent common people. The unity and integrity of the country must be preserved at all costs. It is above politics, above individual gain and above the interests of one group or another. It is fundamental to the prosperity of the nation as a whole. Communalism is an extremely dangerous virus, India is a multi-religious nation and communalism adds to the miseries of all. Much of our nation’s energy and resources have to be diverted to the containment of communal violence. The nation can ill afford this. And lastly, let there be no doubt that India belongs to all of us, we are citizens of this great country. All of us to whatever religion we may belong are equally the children of India with equal rights; privileges and obligations. Let us all play our role to fulfil the basic objections of our Constitution which include strengthening communal harmony and national integration”, as quoted in the judgement delivered by the tribunal court under the chairmanship of Justice GD Sharma.

At the end, I, in my personal capacity as a citizen of India, would say that democratic setup as established under the Constitution of India, it is only the people of the country who are Sovereign. They have fundamental authority to ask the elected members both from the State legislature as well as in the Parliament why they failed to follow the mandates of law when J&K Public Safety Act (PSA) mandates that all assets of a judicially confirmed unlawful Association are to be confiscated and its activists require to be prosecuted? Rather, phenomenal spread of this Unlawful Organisation was allowed which have now spread their roots in every District of the State of Jammu & Kashmir. On the contrary, those people who have ruled the State as elected heads of the Executive are giving their verdicts about the legality on the ban in question. Its legality or illegality under the Central Act still awaits the judicial verdict of the Tribunal to be yet established by the Central Government. The concerned party/parties can contest the case before the Tribunal. I would remind the concerned people about the ancient wisdom of our Rishis who thousands years ago before the dawn of modern Western civilisation had realised that every action of the State is maintainable before the court of law. Sanskrit translation done from the concern text is reproduced: “The Law is the King of Kings more powerful than they are because with its prowess as that of the highest monarch the weakest shall prevail over the strongest”.

The sum and substance of this legal adage is about supremacy of rule of law and equality of everybody before law. These principles are recognised in Indian Constitution as fundamental Rights. Besides, their essence pervades in some Natural Human Rights recognised throughout the world fora.