Ban without basis

Print edition : May 30, 2014

Bomb disposal experts at the Sabarmati Central Jail in Ahmedabad on February 11, 2013, after jail officials discovered a tunnel inside the prison. The government linked the jailbreak attempt to SIMI even though there was no evidence to suggest it was involved. Photo: PTI

June 7, 2002: Students in Srinagar demonstrate against the ban on SIMI. Photo: PTI

The continuation of the ban on SIMI raises questions about the functioning of the tribunal set up under the Unlawful Activities (Prevention) Act and the nature of the evidence brought before it to justify the extension of the ban.

WHILE a tribunal appointed by the Centre has begun hearings to review the seventh successive ban on the Students Islamic Movement of India (SIMI), a number of issues have emerged about the evidence used to justify the ban and about the functioning of the tribunal itself.

SIMI had launched a campaign in 1998 against the failure of the Centre to take appropriate action against those responsible for the demolition of the Babri Masjid in December 1992. The campaign, which included a critique of the Muslim leadership, soon gained popularity across the country, especially in Madhya Pradesh and Maharashtra.

In September 2001, the National Democratic Alliance (NDA) government declared SIMI an “unlawful association” under Section 3(1) the Unlawful Activities (Prevention) Act (UAPA), 1967, and imposed a two-year ban on it. Subsequently, the ban has been reimposed six times. In 2008, the tribunal headed by Justice Geeta Mittal quashed the ban on the grounds that the Centre’s notification was identical, word for word, to the 2006 notification. The Centre stayed the order and filed a special leave petition in the Supreme Court, which is still pending.

The most recent ban on SIMI was notified by the Centre on February 1, 2014. The Centre has appointed a tribunal, headed by Justice Suresh Kait, a sitting judge of the Delhi High Court, to adjudicate on the validity of the ban. The tribunal will travel across the country to examine evidence against the organisation.

During its hearing in Kerala, the State police and the National Investigation Agency (NIA) produced evidence to make a case for continuing the ban on the outfit.

The State police presented printed texts that allegedly spread communal hatred. The NIA presented details of the “Kashmir recruitment case” in which youth from Kerala were allegedly recruited for terror activities in Kashmir.

UAPA amendment

In December 2012, the UAPA was amended to extend the maximum duration of the ban under Section 3(1) of the Act from two years to five. Section 3 of the UAPA allows the Centre to ban an association on the basis of credible and cogent evidence that it is an “unlawful association”, as defined under Section 2(p) of the UAPA, or that the association and its members are indulging in “unlawful activity” as defined under Section 2(o) of the Act.

On May 2, the Supreme Court admitted a writ petition that challenged the extension of the period of the ban under the UAPA as arbitrary and unconstitutional. It posted the petition for hearing on August 14 along with six other pending appeals and another writ petition, all pertaining to the repeated orders that imposed the ban on SIMI since September 2001.

The perpetuation of the ban on a minority organisation without cogent evidence goes against the fundamental rights guaranteed under Article 19 of the Constitution, including the right to form associations guaranteed under Article 19(1)(c) and the right to freedom of speech and expression under Article 19(1)(a). SIMI was established in 1977 as an organisation for students and the youth with an emphasis on charity and social service. Though the organisation has focussed on the foundational principles of Islam, its membership was open to all Indian citizens below the age of 30 years, irrespective of religion.

Humam Ahmad Siddiqui, a lawyer from Sultanpur in Uttar Pradesh and a former member of SIMI, said, “There were no cases filed against SIMI from 1977 up to the time when it was banned in 2001.” He also felt that the NDA government imposed the ban without having any concrete evidence. The 2001 notification neither provided the grounds on the basis of which SIMI was declared unlawful nor did it give separate reasons, as required by the law, for the ban. Siddiqui alleged that subsequent governments used fabricated evidence to perpetuate the ban.

He emphasised that SIMI’s focus was on welfare programmes, social work and education. Siddiqui joined the organisation in 1991, inspired by the religious programmes organised by SIMI in Sultanpur. He was a high school student then. He admitted that the organisation was active in mobilising support in protest against the demolition of the Babri Masjid, but emphasised that this was not its sole focus.

Dodgy evidence

An analysis of the government’s February 1 notification brings out the arbitrary nature of the evidence it is using to justify its action. The ban has been sought on diverse grounds —communal flare-up, jailbreak attempts, ordinary criminal cases, and so on—for a number of which no clear connection with SIMI can be made out.

Advocate Ashok Agrwaal, who has challenged the ban in the Supreme Court, said: “Section 3 of the UAPA is meant only to be used against associations of persons and cannot be used against an individual or in individual crimes. The ban on SIMI is being upheld without any concrete evidence about ongoing subversive or anti-national activities by the organisation or even about the continued existence of the organisation.”

The petition heard by the Supreme Court on May 2 points to some of the ways in which the ban is being perpetuated, which it says are erroneous and arbitrary. This includes the attribution of unconnected and ordinary criminal cases to SIMI. An instance of violence between two groups of Muslims with no connection to SIMI is also cited as a ground for the ban. Another ground cited is a criminal case registered against one person at Kotwali police station, Khandwa, Madhya Pradesh, under Section 124(A) of the Indian Penal Code and Sections 3, 10 and 13 of the UAPA Act. Neither is the connection of SIMI with the crime nor the connection of the “accused person” with SIMI established. There is no mention of SIMI anywhere in the instance cited.

Ground (j) in the notification, which deals with a case registered at the Kalachowki police station in Mumbai, had been presented before the UAPA tribunal in 2012. The Centre has cited the same case again to justify the ban though the grounds mentioned in the notification should reflect ongoing activities (within the past two years) of the organisation that is sought to be banned. Similarly, grounds (o) to (u) are of old cases, many of which were registered immediately after the first ban on SIMI in 2001. Ground (s) deals with a case where the conviction was overturned in appeal and the accused was acquitted by the appellate court, but this fact is not mentioned. Agrwaal said: “Grounds (o) to (u) are cases registered in 1999, 2001, 2006 and 2008, all of which have been produced before previous tribunals.”

Ground (n) talks about a criminal case registered at Jalgaon in Buldana district in Maharashtra, where an alleged SIMI activist and three others were involved in “assaulting the complainant with stone causing him head injury”.

The cases cited in grounds (e) and (f) relate to alleged jailbreak attempts at the Sabarmati Central Jail with no ostensible link to SIMI. One case, registered in Ahmedabad, Gujarat, charges 14 accused persons, all undertrials in a bomb blast case, with “assembling and conspiring and trying to escape Sabarmati jail by digging the earth beneath the water tank”.

The other case involves nine accused persons, including jail officials, who allegedly helped and shielded the prisoners who dug a tunnel in the Sabarmati jail. Neither of these cases highlights SIMI as an association engaging in any subversive activity.

Similarly, grounds (g) to (i) talk about a jailbreak incident at Khandwa by 12 persons, with no evidence to link the incident to SIMI, except for an assertion that the accused persons are “ex-SIMI members”. The other “grounds” used to justify a fresh ban on SIMI also pertain to unrelated incidents of violence and old cases.

Siddiqui said the government had no sound basis for declaring an individual an “ex-SIMI member”. “In 2001, following the ban on SIMI, all the offices of the organisation were sealed and records were seized. We had submitted a list of members to the SIMI tribunal in 2001. There were 20,000 general members and about 400 special members of SIMI at the time of the ban, according to our records. But following the ban, our records were seized and we are not able to cross-check whether an individual was actually a SIMI member. A number of so-called ‘ex-SIMI members’ are declared as such only on the basis of their confessions in police custody. This is only a case of harassment of innocent Muslim youth. Also, there is no concrete evidence to show that SIMI as an organisation is active. Even if one concedes that an ex-SIMI member is involved in a crime, it is in his individual capacity and cannot be used to ban an organisation.”

Problems with the tribunal

The UAPA tribunals have to a large extent relied upon confessional statements extracted in police custody, recorded under Sections 161 and 162 of the Code of Criminal Procedure (CrPC), to validate the ban on SIMI. In 1994, the Supreme Court, in Jamaat-E-Islami Hind vs Union of India, observed that the decision of the tribunal is an adjudication made on the points in controversy “after assessing the credibility of the material produced before it”. If the tribunal fails to do so, “it will amount to an abdication of its role as an independent adjudicating authority, instead merely acting on the ipse dixit of the Central government”. The Supreme Court, in this judgment, laid down a standard to ensure that the decision rendered by the tribunal was not a mere acceptance of the opinion already formed by the Central government.

Further, the Supreme Court in 1981, in Khatri and Ors vs State of Bihar, held that a statement under Sections 161 and 162 of the CrPC would be admissible provided it was otherwise relevant under the Indian Evidence Act. Agrwaal said the Central government had not shown such relevance with respect to any of the statements produced by it, making them wholly inadmissible. “Unverified and untested statements made before police officers in connection with some other proceedings have no evidentiary value in the proceedings before the tribunals under the UAPA,” he said.

Pointing out some of the other problems with the functioning of the tribunal, he said, “The tribunals have accepted confidential material submitted by police officials and State governments in sealed envelopes which are not disclosed to the public. However, it is incumbent upon the Centre to place a proper reasoning or justification explaining why the disclosure of documents would be against the public interest. Also, the printed material allegedly seized from alleged SIMI activists was printed prior to 2001. This cannot be used as evidence. Printed material does not get banned automatically on the ban of an organisation or association under the UAPA. Such material has to be dealt with separately under Section 95 of the CrPC. The tribunal is taking on record old cases and old material to perpetuate a ban on the organisation.”

In the absence of cogent evidence to justify the ban on SIMI, the perpetuation of the ban based on “unreliable evidence” only stifles democratic dissent and frustrates the principles of natural justice. The profiling of youth as ex-SIMI members without concrete evidence is also leading to a communal profiling of innocent Muslim youth.