Publishing the order of the UAP Tribunal in the matter of declaration of Muslim Conference Jammu and Kashmir Bhat faction as an unlawful association

रजिस्ट्री स.ं डी.एल.- 33004/99 REGD. No. D. L.-33004/99 सी.जी.-डी.एल.-अ.-10092024-257052 xxxGIDHxxx CG-DLxx-xEG-I1D0E0x9x2x0 24-257052 असाधारण EXTRAORDINARY भाग II—खण् ड 3—उप-खण्ड (ii) PART II—Section 3—Sub-section (ii) प्राजधकार स ेप्रकाजित PUBLISHED BY AUTHORITY स.ं 3539] नई दिल्ली, मगं लिार, जसतम्ब र 10, 2024/भाद्र 19, 1946 No. 3539] NEW DELHI, TUESDAY, SEPTEMBER 10, 2024/BHADRA 19, 1946 गहृ मत्रं ालय अजधसचू ना नई दिल् ली, 10 जसतम्ब र, 2024 का.आ. 3871(अ).— केंद्रीय सरकार न,े जिजधजिरुद्ध दियाकलाप (जनिारण) अजधजनयम, 1967 (1967 का 37) (जिसे इसम ें इसके पश्चात उक्त अजधजनयम कहा गया ह)ै की धारा 3 की उपधारा (1) द्वारा प्रित् त िजियों का प्रयोग करत े हुए, भारत सरकार के गृह मंत्रालय की भारत के रािपत्र, असाधारण, भाग-II, खंड 3, उपखंड (ii), तारीख 28 फ़रिरी, 2024 म ें प्रकाजित अजधसूचना संख यांक का.आ. 934(अ), तारीख 28 फ़रिरी, 2024 (जिसे इसम ें इसके पश्चात उक्त अजधसूचना कहा गया ह)ै के द्वारा मुजस्ट्लम कॉन्फ्रेंस िम्मू और कश्मीर (भट गुट) (एमसीिेके-बी) को जिजधजिरुद्ध संगम के रूप म ेंघोजित दकया था; और, केंद्रीय सरकार ने उक्त अजधजनयम की धारा 4 की उपधारा (1) के साथ पठित धारा 5 की उपधारा (1) द्वारा प्रित् त िजियों का प्रयोग करते हुए, भारत सरकार के गृह मंत्रालय की भारत के रािपत्र, असाधारण, भाग-II, खंड 3, उपखंड (ii), तारीख 18 माच,च 2024 म ें प्रकाजित अजधसूचना संख यांक का.आ. 1461(अ), तारीख 18 माच,च 2024 के द्वारा जिजधजिरुद्ध दियाकलाप (जनिारण) अजधकरण (जिसे इसम ें इसके पश्चात उक्त अजधकरण कहा गया ह)ै का गिन दकया था, जिसम ें दिल् ली उच् च न्फ् यायालय की न्फ् यायाधीि न्फ् यायमूततच नीना बंसल कृष्णा थीं; और, केंद्रीय सरकार न े उक्त अजधजनयम की धारा 4 की उपधारा (1) द्वारा प्रित त िजियों का प्रयोग करत े हुए, इस न्फ् यायजनणचयन के प्रयोिन के जलए दक क्य ा मुजस्ट्लम कॉन्फ्रेंस िम्मू और कश्मीर (भट गुट) (एमसीिेके-बी) को जिजधजिरुद्ध 5807 GI/2024 (1)2 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] संगम के रूप म ें घोजित दकए िाने का पयाचप् त कारण था या नहीं, तारीख 26 माच,च 2024 को उक्त अजधकरण को उक्त अजधसूचना जनर्िष्टच की थी; और, उक्त अजधकरण न,े उक्त अजधजनयम की धारा 4 की उपधारा (3) द्वारा प्रित् त िजियों का प प्रयोग करत े हुए, उक्त अजधसूचना म ें की गई घोिणा की पुजष्ट करत े हुए तारीख 23 अगस्ट्त, 2024 को एक आिेि पाठरत दकया था; अत:, अब, केंद्रीय सरकार उक्त अजधजनयम की धारा 4 की उपधारा (4) के अनुसरण म,ें उक्त अजधकरण के आििे को प्रकाजित करती ह,ै अथाचत :- “ ---: अजधकरण का आिेि अंग्रेिी भाग म ेंछपा ह ै:--- (न्फ् यायमूततच नीना बंसल कृष्णा) जिजधजिरुद्ध दियाकलाप (जनिारण) अजधकरण” [फा.स.ं 14017/51/2024/एन.आई.-एम.एफ.ओ] अजभिीत जसन्फ्हा, संयुि सजचि MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 10th September, 2024 S.O. 3871(E).—Whereas, the Central Government in exercise of the powers conferred by sub-section (1) of section 3 of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967) (hereinafter referred to as the said Act), declared the Muslim Conference Jammu and Kashmir (Bhat faction) (MCJK-B) as an unlawful association vide notification of the Government of India in the Ministry of Home Affairs, number S.O. 934(E), dated the 28th February, 2024 (hereinafter referred to as the said notification) published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii), dated the 28th February, 2024; And, whereas, the Central Government in exercise of the powers conferred by sub-section (1) of section 5 read with sub-section (1) of section 4 of the said Act constituted the Unlawful Activities (Prevention) Tribunal (hereinafter referred to as the said Tribunal) consisting of Justice Neena Bansal Krishna, Judge, High Court of Delhi vide notification of the Government of India in the Ministry of Home Affairs, number S.O. 1461(E), dated the 18th March, 2024 published in the Gazette of India , Extraordinary, Part II, Section 3, Sub-section (ii), dated the 18th March, 2024; And, whereas, the Central Government in exercise of the powers conferred by sub-section (1) of section 4 of the said Act referred the said notification to the said Tribunal on 26th March, 2024 for the purpose of adjudicating whether or not there was sufficient cause for declaring the Muslim Conference Jammu and Kashmir (Bhat faction) (MCJK-B) as an unlawful association; And, whereas, the said Tribunal in exercise of the powers conferred by sub-section (3) of section 4 of the said Act, passed an order on 23rd August, 2024, confirming the declaration made in the said notification; Now, therefore, in pursuance of sub-section (4) of section 4 of the said Act, the Central Government hereby publishes the order of the said Tribunal, namely :- “UNLAWFUL ACTIVITIES (PREVENTION) TRIBUNAL, HIGH COURT OF DELHI, NEW DELHI Date of Decision: 23rd August, 2024 IN THE MATTER OF: Gazette Notification No. S.O. 934(E) dated 28th February 2024 declaring the Muslim Conference Jammu & Kashmir (Bhat) as an unlawful association under the Unlawful Activities (Prevention) Act, 1967.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : असाधारण 3 AND IN THE MATTER OF: Reference under Section 4 of the Unlawful Activities (Prevention) Act, 1967 made to this Tribunal by the Government of India through Ministry of Home Affairs vide Gazette Notification No. S.O. 1461 (E) dated 18th March 2024. Present : Dr. Ajay Gulati, Registrar, Unlawful Activities (Prevention) Tribunal. Ms. Aishwarya Bhati (Addl. SG) along with Mr. Amit Prasad, Mr. Rajat Nair, Ms. Poornima Singh, Ms. Manisha Chava and Mr. Abhijeet Singh, ld. Advocates for the Union of India. Mr. Parth Awasthi, and Ms. Deepika Gupta ld. Advocates for Union Territory of Jammu & Kashmir. Mr. Antariksh Singh Rathore, Asstt. Commandant and Mr. Sameer Shukla, Asstt. Section Officer, Ministry of Home Affairs. Mr. Arjun Chopra, Law Researcher. CORAM: HON’BLE Ms. JUSTICE NEENA BANSAL KRISHNA ORDER 1. This order answers reference under Section 4(3) read with Section 3(3) of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the ‘Act’ or ‘UAPA’, for short) made to this Tribunal which has been constituted by the Central Government vide Gazette Notification No. S.O. 1461 (E) dt. 18th March, 2024 under Section 5(1) of the ‘Act’, for adjudicating whether or not there is sufficient cause for declaring the Muslim Conference Jammu & Kashmir (Bhat) as an ‘unlawful association’. I. THE NOTIFICATION 2. The Central Government published Gazette Notification (extra-ordinary) No. S.O. 934(E) dated 28th February 2024 in exercise of powers conferred under Section 3(1) of the Act and declared Muslim Conference Jammu & Kashmir (Bhat) to be an ‘unlawful association’. A copy of the said notification has been sent to this Tribunal, as contemplated under Rule 5(i) of the Unlawful Activities (Prevention) Rules, 1968 (“UAP Rules” in short). The said notification dated 28th February 2024 reads as under: “S.O. 934 (E)-Whereas, the Muslim Conference Jammu and Kashmir (Bhat faction) (hereinafter referred to as the MCJK – B) chaired by Abdul Ghani Bhat have been indulging in unlawful activities, which are prejudicial to the integrity, sovereignty and security of the country; And, whereas, MCJK-Bhat has linkages with banned terrorist organizations and has supported terrorism in Jammu and Kashmir; And, whereas, the members of the MCJK-B have been indulging in generating feelings of hatred and disaffection against India to separate Jammu and Kashmir from the Union of India; And, whereas, the leaders and members of the MCJK-B have been involved in raising funds through various sources including Pakistan and its proxy organizations for perpetrating unlawful activities, including supporting terrorist activities, sustained stone-pelting on Security Forces in Jammu & Kashmir; And,whereas, the MCJK-B and its members by their activities show sheer disrespect towards the constitutional authority and constitutional set up of the country; And, whereas,MCJK-B by giving clarion call to boycott elections on multiple occasions, has also attempted to subvert the will of people and democratic process in Jammu and Kashmir; And whereas, MCJK-B is involved in promoting, aiding and abetting secession of Jammu and Kashmir from India by involving in anti-national and subversive activities; sowing seeds of dis-affection amongst people; exhorting people to destabilise public order; encouraging the use of arms to separate Jammu and Kashmir from the Union of India; promoting hatred against established Government; And whereas, the Central Government is of the opinion that if there is no immediate curb or control of unlawful activities of the above-said faction of MCJK-B, it will use this opportunity to- (i) continue with the anti-national activities which are detrimental to the territorial integrity, security and sovereignty of the country; (ii) continue advocating the secession of the Jammu and Kashmir from the Union of India while disputing its accession to the Union of India; and4 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] (iii) continue propagating anti-national sentiments of the people of Jammu and Kashmir with the intention to cause disaffection against India and disrupt public order; And whereas, the Central government for the above-mentioned reasons is firmly of the opinion that having regard to the activities of the Muslim Conference Jammu and Kashmir (Bhat faction), it is necessary to declare the Muslim Conference Jammu and Kashmir (Bhat faction), as an ‘unlawful association’ with immediate effect; Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 3 of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), the Central Government hereby declares the Muslim Conference Jammu and Kashmir (Bhat faction) as an unlawful association; The Central Government, having regard to the above circumstances, is of firm opinion that it is necessary to declare the Muslim Conference Jammu and Kashmir (Bhat faction) as an ‘unlawful association’ with immediate effect, and accordingly, in exercise of the powers conferred by the proviso to sub-section (3) of Section 3 of the said Act, the Central Government hereby directs 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 its publication in the Official Gazette.” 3. As can be seen, the aforesaid notification enumerates the reasons/ circumstances, as contemplated under proviso to Section 3(3) of the Act, for declaring the Muslim Conference Jammu and Kashmir (Bhat faction) (referred to herein-after as MCJK – B) as unlawful with immediate effect. II. THE BACKGROUND NOTE 4. Along with the reference to this Tribunal under Section 4 of the UAPA, the Central Government has submitted and filed before this Tribunal a background note, as contemplated under Rule 5(ii) of the UAP Rules, 1968. 5. The Background Note states that Muslim Conference Jammu and Kashmir, a Pakistan backed secessionist organization, was formed in year 1985 by Abdul Gani Bhat r/o Botingoo Zaingeer, Sopore, District Baramulla. Since the formation, Muslim Conference has been supporting terrorism and anti-India propaganda for fueling secessionism in Jammu and Kashmir. Muslim conference later got split into three factions; one led by Abdul Gani Bhat of Sopore, another by Ghulam Nabi Sumji of Bijebehera and third by Shabir Ahmad Dar of Sopore. 6. Abdul Gani Bhat, leader of the Muslim Conference (MC), Jammu and Kashmir, was a professor of Persian in JK Higher Education Department. He was dismissed by the Government on February 27, 1986 along with other two employees for their anti-national activities. Since 1987, Abdul Gani Bhat had been involved in separatist and anti- national activities. He was detained under PSA in 1990 and released in March 1992. He continued support and active participation in furthering protest calls, election boycott calls, stone pelting, arson, street violence, propagating secessionism and extending moral support to terrorism in Kashmir. 7. Objective of MCJK (Bhat faction) has been to separate Jammu and Kashmir from India. It asserted that nothing good can happen to Kashmir so long it was part of India and exploited ‘right to self-determination’ in fulfilling the Pakistani agenda of generating feelings of hatred and disaffection against India, to achieve the bigger goal of amputating Jammu and Kashmir from Union of India. 8. MCJK-B is directly involved in propagating anti-India propaganda besides fuelling and causing law-and- order incidents in Jammu and Kashmir. Its primary role is to portray a negative image of the counter insurgency operations in Jammu and Kashmir, glorifying the terrorist activities, disrupting democratic process, mobilizing public opinion against India, furthering communal disharmony and propagating false narrative. MCJK-B under the patronage of Abdul Gani Bhat has been unabatedly involved in spreading hatred and disaffection against India, vilifying Indian state, launching calculated attacks on the government of the day, provoking and inciting youth into violence, spawning protests, disclaiming and disrupting the sovereignty and integrity of India and extending covert and overt support to proscribed anti-national organisations and terrorist organizations. Leadership 9. As per the background note, some of the important leaders associated with MCJK (Bhat) are stated to be as under: Sl. Name Designation Address No. 1 Abdul Gani Bhat s/o Habibullah Chairman Botengoo, Sopore at present Wazir Bagh, Bhat Srinagar 2 Jehangir Ahmed Bhat s/o Abdul President Village Botingoo, Sopore, Baramulla Gani Bhat 3 Advocate Mohammad Ashraf Lone General Secretary Sopore[भाग II—खण् ड 3(ii)] भारत का रािपत्र : असाधारण 5 Activities Supporting Anti-National Activities and Linkages with Cross Border Agency/Establishment 10. As per the background note, MCJK-B is a secessionist group which not only propagates secessionism in Jammu and Kashmir through hartal calls, election-boycott, criminal intimidation, communal disharmony, provoking gullible youth to street-violence, arson, stone-pelting and to join terrorist ranks but also glorifies terrorism by visiting the families to pay tributes to the terrorists killed by security forces during anti-terrorist operations in the Jammu and Kashmir. MCJK-B has been at forefront for extending moral and hidden support to terrorist organizations operating within the valley. 11. MCJK-B along with other separatist organizations fanned the sentiments of the people against the Government over Amarnath Land Row through their misinformation and false information campaign which resulted in Amarnath Land Row agitation causing large scale violence and damage to the public and private properties. MCJK-B actively nurtured and financed the stone pelters who were lured in continuing violent protests and other anti- national activities. In order to give massive thrust to Pakistani agenda in sustaining its terrorist and secessionist ecosystem in Jammu and Kashmir, MCJK-B in a calculated manner portrayed the death of two ladies in Shopian in the year 2009 by describing it as rape and murder perpetrated by the security forces. The entire design was to create a false narrative against the Central Government and its law enforcement agencies so as to generate hatred and disaffection against India among general masses. 12. Death of some stone pelting youth in Kashmir valley, during handling of law and order in the year 2010, was exploited by the separatists to accelerate momentum to their ‘Quit Kashmir’ campaign. Abdul Gani Bhat circulated protest posters and ‘shut-down programs’ from time to time to create valley wide disturbances. The trouble in the State was fomented by elements who were sponsored, aided and patronized by Muslim Conference lead by Abdul Gani Bhat. A total of around 2794 stone pelting incidents were reported in which 112 civilians lost their lives, 1047 got injured while 1 police personal attained martyrdom and around 5188 police/ Security Forces personnel got injured in these incidents. MCJK-B, after the killing of Burhan Wani and acting on the instructions of Pakistan’s ISI, exploited the situation intensely and actively provoked, incited and lured the youth of Jammu and Kashmir for violence to disrupt the peace in the valley. In order to keep the anti-India pot boiling, MCJK (Bhat) announced hartal calls and issued protest calendars which resulted in the death of 86 persons and 8932 civilians were also injured. 02 Police Jawans were martyred and about 8370 police/ Security Forces personnel got injured in these riots. Criminal Cases involving complicity of Muslim Conference Jammu and Kashmir (Bhat) 13. The background note mentions a series of criminal cases which have been registered against the MCJK (Bhat) cadres on account of its criminal and anti-national activities. The cases have been registered against the MCJK (Bhat) and its activists under various provisions of law including TADA, Unlawful Activities (Prevention) Act and other substantive offences which provide clinching evidence regarding their involvement in various unlawful activities. Following are the details of the cases registered by Jammu and Kashmir Police against the MCJK (Bhat) members/activists: Details of The Cases Registered Against Members/activists of the Muslim Conference Jammu And Kashmir (Bhat) Sl. FIR No. & Police Brief of Investigation Details of accused No Station persons 1. FIR no. 23/2023 u/s 10, Brief facts of the case are that on 09.07.2023, Police Station Jahangir Ahmad 13 of UAP Act, and Kothibagh received an information through reliable sources Bhat s/o Abdul section 121A of IPC at to the effect that one Mohammad Yaseen Bhat s/o Ghulam Gani Bhat r/o P.S. Kothibagh Mohammad r/o Naseem Bagh Srinagar has organized a Batangoo, meeting in Habib Restaurant situated at residency road Sopore, and 11 Srinagar. Separatist activists including Jahangir Ahmad others Bhat participated in the meeting, a cover up for undertaking separatist/ unlawful activities and to rekindle the activities of banned unlawful JKLF-Y and thereby waging war against the Government of India and threatening the integrity, sovereignty and security of India. 2. FIR no. Brief facts of case are that on 31/10/1991 P/S CIK received Abdul Gani Bhat & 15/1991 reliable information that Hurriyat leaders Syed Ali Shah 3 others Geelani, Shabir Ahmad Shah, Abdul Gani & Abdul Gani u/s 3/4 Lone while inter-acting with the media appreciated the role TADA at of terrorists & Separatists. They appealed people of J&K to P.S Counter Insurgency fight against Indian forces etc. Kashmir6 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] 3. FIR no. 123/1987 u/s Brief facts of the case are that on 04.03.1987 accused who Abdul Gani Bhat & 4(2) TADA at were part of Muslims United Front (MUF), organized a rally 8 others near Iqbal Park, Srinagar. The supporters of MUF P.S. Sheragarhi assembled on spot after travelling from various places in Kashmir. The leaders/ accused introduced candidates who had filed nominations in the election process and the accused, while addressing their supporters were inciting the public that New-Delhi has been exploiting Kashmiris since last 40 years. The accused while addressing the crowd that in order to stop exploitation of Kashmiris, support needs to be extended to the candidates of MUF so that an Islamic state is constituted on the similar lines as in Pakistan. 4. FIR no. 72/2018 u/s 35- The case was registered on Court Directions against the Abdul Gani Bhat A, 511, 506 RPC at P.S. accused persons for threatening, misbehaving and trying to Batamaloo molest the complainant. 5. FIR no. 37/1998 u/s On 21-02-1998, some separatist leaders, addressed a Abdul Gani Bhat 188, 132-B RPC at P.S. gathering at New Theed Harwan and during the speech, and 4 others. Nishat asked the people to boycott the election and also raised anti- national slogans. 6. FIR no. 46/2010 On 17/06/2010, Hurriyat (M) headed by Moulvi Umer Abdul Gani Bhat u/s 348 Farooq boarded a vehicle from Rajbagh and stopped their and 6 others. Vehicle at R.K Crossing and did a ‘sit-down’on the main RPC at P.S. road due to which General Traffic was disrupted etc. Kothibagh 14. The Background Note concluded that the above referred acts of the MCJK-B led to the conclusion that this organization is bent upon to work towards secession and separation of the State of Jammu and Kashmir from the Union of India. It has encouraged and is actively continuously encouraging the armed insurgency aimed at causing disaffection, disloyalty, dis-harmony by promoting feelings of enmity and hatred against the lawful government and is indulging and acting in a manner prejudicial to the territorial integrity and sovereignty of the Indian Union. Thus, the activities of MCJK-B fall within the purview of unlawful activities. Keeping in view the gravity of the situation and unlawful activities by the organization, the Central Government decided to ban Muslim Conference Jammu and Kashmir (Bhat faction)/ MCJK-B under the provisions of the Unlawful Activities (Prevention) Act, 1967 and accordingly, Notification No. S.O. 934 (E) dated 28th February, 2024 declaring MCJK-B as an unlawful association was issued. III. STATUTORY PROVISIONS 15. Section 2 (o) and (p) of the UAPA, read as follows: “2. Definitions. – (1) In this Act, unless the context otherwise requires,- (o) “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 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 such cession or secession; or (ii) Which disclaims, questions, disrupts, or is intended to disrupt the sovereignty and territorial integrity of India; or (iii) Which causes or is intended to cause disaffection against India; (p) “unlawful association” means any association,- (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 Section 153-A or Section 153-B of the Indian Penal Code (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”.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : असाधारण 7 16. Section 2(o) of the Act defines ‘unlawful activity’. It means “any action taken” by an association or an individual of the kind mentioned in clauses (i), (ii) and (iii) of the said sub-section. Any action taken has reference to and must be of the kind stipulated in and covered by clauses (i), (ii) or (iii). Action can be either written or spoken, by sign or by visible representation or even otherwise. Clause (i) refers to “action taken” with the intent or which supports any claim for secession or cession of any part of India or incites any individual or group of individuals to bring about secession or cession. Clause (ii) refers to “action taken” which has the effect of disclaiming, questioning, disrupting or intending to disrupt the sovereignty and territorial integrity of India. Clause (iii) refers to “action taken” which causes or is intended to cause disaffection against India. 17. Unlawful association has been defined in Section 2(p) of the Act and consists of two parts: (i) and (ii). Part (i) refers to the unlawful activity defined in Section 2(o) and encompasses associations which have the object that encourage or even aid persons to undertake the said activity. The last part of Part (i) widens the definition of the term “unlawful association” to include an association of which members undertake unlawful activity. In a way, therefore, the association is vicariously liable and can be regarded as an unlawful association if members of an association undertake unlawful activity. 18. Section 2(p)(ii) does not refer to unlawful activity defined in Section 2(o) of the Act but refers to Sections 153A and 153B of the Indian Penal Code, 1860 (IPC for short). An association which encourages or aids or the object of which is to encourage or aid persons to undertake activities punishable under Section 153A or 153B, is an unlawful association. “Object” for which an association is formed can in many cases be in writing but encouragement and aid to persons to undertake activities under Sections 153A and 153B may be oral or in writing. The last part of Section 2(p)(ii) widens and expands the scope of the term “unlawful association”, when it stipulates that an association of which members undertake activities which are punishable under Section 153A or 153B of the IPC is an unlawful association. An association, therefore, can become an unlawful association if its members undertake any activity covered by Section 153A or 153B of the IPC. IV. NATURE AND SCOPE OF PROCEEDINGS BEFORE THE PRESENT TRIBUNAL 19. The nature of the proceedings before this Tribunal and the scope of inquiry in the present proceedings have been laid down by the Supreme Court in Jamaat-e-Islami Hind vs. Union of India (1995) 1 SCC 428 in the specific context of the provisions of the UAPA, 1967. The proceedings before this Tribunal are civil in nature and the standard of proof is the standard prescribed by the Supreme Court in Jamaat-e-IslamiHind (supra). This lis has to be decided by objectively examining which version i.e. of the Cnetral Govt. or that of the concerned organization, is more acceptable and credible. In this regard, reference may be made to following observations in Jamaat-e-Islami Hind (supra): “30. The allegations made by the Central Government against the Association - Jamaat-E-Islami Hind - were totally denied. It was, therefore, 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 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, IB. Neither Shri Srivastava nor Shri Padhi has 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 to produce them for cross-examination by the 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, the persons to whom the alleged unlawful acts of the Association are attributed filed their affidavits denying the allegations and 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 for 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 taking care to know even 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, therefore, be sustained."8 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] 20. The present Tribunal, constituted under the UAPA, has been vested with certain powers and the procedure to be adopted by it, under Section 5 read with Section 9 of the said Act, which are reproduced as under: “5. Tribunal. (1) The Central Government may, by notification in the Official Gazette, constitute, as and when necessary, a tribunal to be 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. (2) If, for any reason, a vacancy (other than a temporary absence) occurs in the office of the presiding officer of the Tribunal, then, the Central Government shall appoint another person in accordance with the provisions of this section to fill the vacancy and the proceedings may be continued before the Tribunal from the stage at which the vacancy is filled. (3) The Central Government shall make available to the Tribunal such staff as may be necessary for the discharge of its functions under this Act. (4) All expenses incurred in connection with the Tribunal shall be defrayed out of the Consolidated Fund of India. (5) Subject to the provisions of section 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. (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: (a) the summoning and 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 on affidavits; (d) the requisitioning of any public record from any court or office ; (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 sections 193 and 228 of the Indian Penal Code (45 of 1860) and the Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1898 (5 of 1898).” “9. Procedure to be followed in the disposal of applications under this 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 the District Judge in disposing of any application under sub-section (4) of section 7 or sub-section (8) of section 8 shall, so far as may be, be the procedure laid down in the Code of Civil Procedure, 1908 (5 of 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.” 21. Further, under section 4(1) of Act, the Central Government refers the notification (issued under Section 3(1) of the Act) to the Tribunal for “adjudicating” whether or not there is “sufficient cause” for declaring the association unlawful. Section 4(2) requires issuance of notice on the association affected to show cause why the association should not be declared as unlawful. Section 4(3) mandates an inquiry in the manner specified in Section 9 after calling for such information as may be necessary from Central Government or from office bearers or members of the association. The Tribunal under Section 4(3) is required to adjudicate and make an order, as it may deem fit, either confirming the declaration made in the notification or cancelling the same. After interpreting the said provisions of the UAPA in Jamaat-e-Islami Hind (supra), it was held by the Supreme Court as under: “11…. The 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 lis between two parties, the outcome of 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[भाग II—खण् ड 3(ii)] भारत का रािपत्र : असाधारण 9 “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 support the declaration is sufficient to sustain it. The test of greater probability appears to be the pragmatic test applicable in the context.” 22. On the question of confidential information that is sought to be withheld, the Supreme Court emphasized that the Tribunal can look into the same for the purpose of assessing credibility of the information and the Tribunal should satisfy itself whether it can safely rely upon it. This was necessary as in certain situations, source of information or disclosure of full particulars may be against public interest. Such a modified procedure while ensuring confidentiality of information and its source in public interest, enables the Tribunal to test the credibility of confidential information for objectively deciding the Reference. It was emphasized that the unlawful activities of an association may quite often be clandestine in nature and, therefore, material or information for various reasons may require confidentiality. Disclosure, it was held, can jeopardize criminal cases pending investigation and trial. 23. On the question of nature and type of evidence, which can be relied upon by the Tribunal, the Supreme Court referred to Rule 3 of UAP Rules, 1968. Rule 3(1) stipulates that the Tribunal subject to sub-rule (2) shall follow, “as far as practicable”, the rules of evidence laid down in Indian Evidence Act 1872. In this regard, reference can be made to the following observations in Jamaat-e-Islami Hind (supra): “22. …The materials need not be confined only to legal evidence in the strict sense. Such a procedure would ensure that the 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 and its members, without jeopardizing 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 by mere acceptance of the opinion already formed by the Central Government. 23. In John J. Morrissey and G. Donald Booher v. Lou B. Brewer [408 US 471: 33 L Ed 2d 484 (1972)] the United States Supreme Court, in a case of parole revocation, indicated the minimum requirements to be followed, as under: (L Ed pp. 498-99) “Our task is limited to deciding the minimum requirements of due process. They include (a) written notice 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 good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. We emphasise there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is 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.”. xxx xxx xxx 26. ……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 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 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, if the public interest so requires.” 24. Before assessing the credibility of material and analyzing evidence adduced, it is apposite to take note of sections 25, 26 and 27 of the Indian Evidence Act 1872 (hereinafter to be referred to as the ‘Evidence Act’), as well as sections 161 and 162 of the Code of Criminal Procedure, 1973. The same are reproduced hereunder:10 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] Indian Evidence Act, 1872 25. Confession to police-officer not to be proved.––No confession made to a police-officer , shall be proved as against a person accused of any offence. 26. Confession by accused while in custody of police not to be proved against him.––No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Explanation.––In this section “Magistrate” does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George 6 *** or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 18827 (10 of 1882). 27. How much of information received from accused may be proved.––Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Code of Criminal Procedure, 1973 “161. Examination of witnesses by police.—(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. Provided that statement made under this sub-section may also be recorded by audio-video electronic means: Provided further that the statement of a woman against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, 3 section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer. 162. Statements to police not to be signed: Use of statements in evidence.—(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872); or to affect the provisions of section 27 of that Act. Explanation.—An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.” 25. As per sections 25 and 26 of the Evidence Act, confessions made to a police officer or while in custody shall not be proved against a person accused of any offense during the trial of that offense. As per section 162 of the Cr.P.C., no statement made by any person to a police officer in the course of an investigation under Chapter XII[भाग II—खण् ड 3(ii)] भारत का रािपत्र : असाधारण 11 (which includes section 161 Cr.P.C.) can be used, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. However, these sections do not prohibit the use of such statements in proceedings where the accused is not being tried for the specific offense in question, or in civil proceedings or ancillary proceedings. 26. The Supreme Court in Mahesh Kumar v. State of Rajasthan, 1990 Supp SCC 541 (2), noted the possible use of statement made to the police by the accused persons for being use of as evidence against the accused in an “enquiry” although inadmissible as evidence against them at the trial for the offence with which they were charged. Relevant extract of the said judgment is as under: “3. In Queen Empress v. Tribhovan Manekchand, a Division Bench of the Bombay High Court laid down that the statement made to the police by the accused persons as to the ownership of property which was the subject matter of the proceedings against them although inadmissible as evidence against them at the trial for the offence with which they were charged, were admissible as evidence with regard to the ownership of the property in an enquiry held by the Criminal Procedure Code. The same view was reiterated in Pohlu v. Emperor where it was pointed out that though there is a bar in Section 25 of the Evidence Act, or in Section 162 CrPC for being made use of as evidence against the accused, this statement could be made use of in an enquiry under Section 517 CrPC when determining the question of return of property. These two decisions have been followed by the Rajasthan High Court in Dhanraj Baldeokishan v. State and the Mysore High Court in Veerabhadrappa v. Govinda. In the present case, the amount in question was seized from the accused in pursuance of statements made by them under Section 27 of the Evidence Act. The High Court as well as the courts below have found the property to be the subject of theft and the acquittal of the accused is upon benefit of doubt.” 27. The Supreme Court in Khatri (IV) v. State of Bihar, (1981) 2 SCC 493 with reference to the bar under Section 162 of the Cr.P.C against use in evidence of a statement made before a police officer in the course of investigation held that the same would not apply where court calls for such statement in a civil proceeding provided the statement is otherwise relevant under the Evidence Act, 1872. Relevant extract of the said judgment is as under: “3. Before we refer to the provisions of Sections 162 and 172 of the Criminal Procedure Code, it would be convenient to set out briefly a few relevant provisions of that Code. Section 2 is the definition section and clause (g) of that section defines “inquiry” to mean “every inquiry, other than a trial conducted under this Code by a Magistrate or court”. Clause (a) of Section 2 gives the definition of “investigation” and it says that investigation includes “all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf”. Section 4 provides: “4. (1) All offences under the Penal Code, 1860 shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” It is apparent from this section that the provisions of the Criminal Procedure Code are applicable where an offence under the Penal Code, 1860 or under any other law is being investigated, inquired into, tried or otherwise dealt with. Then we come straight to Section 162 which occurs in Chapter XII dealing with the powers of the police to investigate into offences. That section, so far as material, reads as under: “162. (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872; and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872, or to affect the provisions of Section 27 of that Act.” It bars the use of any statement made before a police officer in the course of an investigation under Chapter12 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] XII, whether recorded in a police diary or otherwise, but, by the express terms of the section, this bar is applicable only where such statement is sought to be used “at any inquiry or trial in respect of any offence under investigation at the time when such statement was made”. If the statement made before a police officer in the course of an investigation under Chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made, the bar of Section 162 would not be attracted. This section has been enacted for the benefit of the accused, as pointed out by this Court in Tahsildar Singh v. State of U.P. It is intended “to protect the accused against the user of statements of witnesses made before the police during investigation, at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence”. This Court, in Tahsildar Singh case approved the following observations of Braund, J. in Emperor v. Aftab Mohd. Khan: “As it seems to us it is to protect accused persons from being prejudiced by statements made to police officers who by reason of the fact that an investigation is known to be on foot at the time the statement is made, may be in a position to influence the maker of it, and, on the other hand, to protect accused persons from the prejudice at the hands of persons who in the knowledge that an investigation has already started, are prepared to tell untruths” and expressed its agreement with the view taken by the Division Bench of the Nagpur High Court in Baliram Tikaram Marathe v. Emperor that “the object of the section is to protect the accused both against overzealous police officers and untruthful witnesses”. Protection against the use of statement made before the police during investigation is, therefore, granted to the accused by providing that such statement shall not be allowed to be used except for the limited purpose set out in the proviso to the section, at any inquiry or trial in respect of the offence which was under investigation at the time when such statement was made. But, this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. It has no application, for example in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the Indian Evidence Act. There are a number of decisions of various High Courts which have taken this view and amongst them may be mentioned the decision of Jaganmohan Reddy, J. in Malakala Surya Rao v.G. Janakamma. The present proceeding before us is a writ petition under Article 32 of the Constitution filed by the petitioners for enforcing their Fundamental Rights under Article 21 and it is neither an “inquiry” nor a “trial” in respect of any offence and hence it is difficult to see how Section 162 can be invoked by the State in the present case. The procedure to be followed in a writ petition under Article 32 of the Constitution is prescribed in Order XXXV of the Supreme Court Rules, 1966, and sub-rule (9) of Rule 10 lays down that at the hearing of the rule nisi, if the court is of the opinion that an opportunity be given to the parties to establish their respective cases by leading further evidence, the court may take such evidence or cause such evidence to be taken in such manner as it may deem fit and proper and obviously the reception of such evidence will be governed by the provisions of the Indian Evidence Act. It is obvious, therefore, that even a statement made before, a police officer during investigation can be produced and used in evidence in a writ petition under Article 32 provided it is relevant under the Indian Evidence Act and Section 162 cannot be urged as a bar against its production or use. The reports submitted by Shri L.V. Singh setting forth the result of his investigation cannot, in the circumstances, be shut out from being produced and considered in evidence under Section 162, even if they refer to any statements made before him and his associates during investigation, provided they are otherwise relevant under some provision of the Indian Evidence Act.” 28. With reference to police diaries and Section 172 of the Cr.P.C., the Supreme Court in Khatri (supra) held as under: “…These reports are clearly relevant under Section 35 of the Indian Evidence Act which reads as follows: “35. An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.” These reports are part of official record and they relate to the fact in issue as to how, and by whom the twenty-four under-trial prisoners were blinded and they are admittedly made by Sh L.V. Singh, a public servant, in the discharge of his official duty and hence they are plainly and indubitably covered by Section 35. The language of Section 35 is so clear that it is not necessary to refer to any decided cases on the interpretation of that section, but we may cite two decisions to illustrate the applicability of this section in the present case. The first is the decision of this Court in Kanwar Lal Gupta v. Amar Nath Chawla. There the question was whether reports made by officers of the CID (Special Branch) relating to public meetings covered by them at the time of the election were relevant under Section 35 and this Court held that they[भाग II—खण् ड 3(ii)] भारत का रािपत्र : असाधारण 13 were, on the ground that they were (SCC p. 667) “made by public servants in discharge of their official duty and they were relevant under the first part of Section 35 of the Evidence Act, since they contained statements showing what were the public meetings held by the first respondent”. This Court in fact followed an earlier decision of the Court in P.C.P. Reddiar v. S. Perumal. So also in Jagdat v. Sheopal, Wazirhasan, J. held that the result of an inquiry by a Kanungo under Section 202 of the Code of Criminal Procedure, 1898 embodied in the report is an entry in a public record stating a fact in issue and made by a public servant in the discharge of his official duties and the report is therefore admissible in evidence under Section 35. We find that a similar view was taken by a Division Bench of the Nagpur High Court in Chandulal v. Pushkar Raj where the learned Judges held that reports made by Revenue Officers, though not regarded as having judicial authority, where they express opinions on the private rights of the parties are relevant under Section 35 as reports made by public officers in the discharge of their official duties, insofar as they supply information of official proceedings and historical facts. The Calcutta High Court also held in Lionell Edwards Limited v. State of W.B. that official correspondence from the Forest Officer to his superior, the Conservator of Forests, carried on by the Forest Officer in the discharge of his official duty would be admissible in evidence under Section 35. There is therefore no doubt in our mind that the reports made by Sh L.V. Singh setting forth the result of the investigation carried on by him and his associates are clearly relevant under Section 35 since they relate to a fact in issue and are made by a public servant in the discharge of his official duty. It is indeed difficult to see how in a writ petition against the State Government where the complaint is that the police officials of the State Government blinded the petitioners at the time of arrest or whilst in police custody, the State Government can resist production of a report in regard to the truth or otherwise of the complaint, made by a highly placed officer pursuant to the direction issued by the State Government. We are clearly of the view that the reports made by Shri L.V. Singh as a result of the investigation carried out by him and his associates are relevant under Section 35 and they are liable to be produced by the State Government and used in evidence in the present writ petition. Of course, what evidentiary value must attach to the statements contained in these reports is a matter which would have to be decided by the court after considering these reports. It may ultimately be found that these reports have not much evidentiary value and even if they contain any statements adverse to the State Government, it may be possible for the State Government to dispute their correctness or to explain them away, but it cannot be said that these reports are not relevant. These reports must therefore be produced by the State and taken on record of the present writ petition. We may point out that though in our order dated February 16, 1981 we have referred to these reports as having been made by Shri L.V. Singh and his associates between January 10 and January 20, 1981 it seems that there has been some error on our part in mentioning the outer date as January 20, 1981 for we find that some of these reports were submitted by Shri L.V. Singh even after January 20, 1981 and the last of them was submitted on January 27, 1981. All these reports including the report submitted on December 9, 1980 must therefore be filed by the State and taken as forming part of the record to beconsidered by the court in deciding the question at issue between the parties.” 29. The Supreme Court in Vinay D. Nagar v. State of Rajasthan, (2008) 5 SCC 597, again held that bar of Section 162 of the Cr.P.C. is with regard to the admissibility of the statement recorded of a person by the police officer under Section 161 Cr.P.C. and by virtue of Section 162 Cr.P.C. would be applicable only where such statement is sought to be used at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. The relevant extract of the said decision is as under: “14. On account of Section 162 CrPC, a statement made by any person to a police officer in the course of investigation under Chapter XII, if reduced into writing, will not be signed by the person making it, nor such statement recorded or any part thereof be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. Such statement may be used by an accused and with the permission of the court by the prosecution to contradict the witness whose statement was recorded by the police in the manner provided under Section 145 of the Evidence Act and can also be used for re-examination of such witness for the purpose only of explaining any matter referred to in his cross-examination. Bar of Section 162 CrPC of proving the statement recorded by the police officer of any person during investigation however shall not apply to any statement falling within the provision of Clause (1) of Section 32 of the Evidence Act, nor shall it affect Section 27 of the Evidence Act. Bar of Section 162 CrPC is in regard to the admissibility of the statement recorded of a person by the police officer under Section 161 CrPC and by virtue of Section 162 CrPC would be applicable only where such statement is sought to be used at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. 15. In Khatri (IV) v. State of Bihar this Court has held that Section 162 CrPC bars the use of any statement made before the police officer in the course of an investigation under Chapter XII, whether recorded in the police diary or otherwise. However, by the express terms of Section 162, this bar is applicable only where such statement is sought to be used “at any inquiry or trial” in respect of any offence under investigation at the time when such statement was made. If the statement made before a police officer in the course of an investigation under Chapter XII is sought to be used in any proceeding, inquiry or trial in respect of an14 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] offence other than which was under investigation at the time when such statement was made, the bar of Section 162 will not be attracted.” 30. After examining the aforementioned provisions, as well as the legal principles established in a catena of judgments, and considering that the inquiry before this Tribunal does not entail adjudicating the guilt of the accused but rather assessing the adequacy of material before the Central Government to designate MCJK (Bhat) as an unlawful association, the statement of witnesses recorded by the police officers, the statements made by the accused before police officers, along with the lists of items seized and seizure memos, are deemed admissible before this Tribunal. They can be validly relied upon to ascertain the sufficiency of material before the Central Government for making the declaration under Section 3(1) of UAPA. V. PROCEDURE FOLLOWED BY THIS TRIBUNAL 31. Consequently, upon due consideration of the aforesaid Notification No. 934 (E) dated 28th February, 2024 and Notification No. 1461(E) dated 18th March, 2024, this Tribunal held a preliminary hearing on 15.04.2024, whereupon on a consideration of the material placed on record by the Central Government, notice under Section 4(2) of the Act was issued to the MCJK (Bhat) to show cause, within a period of 30 days, as to why it ought not to be declared as an unlawful association. The notice issued was given due publicity as required under Section 3(4) of the Act. 32. The Gazette Notification dated 28.02.2024 was also published in two National Newspapers (all India Edition), out of which one was in English while the other was in Hindi. The said notification was also published in two local newspapers one of which was in vernacular and the other was in English (details of which have been mentioned in the affidavit dt. 17.05.2024 filed on behalf of UT of J&K) having wide circulation in the States where the activities of the MCJK (Bhat) were or are believed to be ordinarily carried out. The method of affixation and proclamation by beating of drums, as well as loudspeakers, was also adopted. Proclamation was made at the last known addresses of the MCJK (Bhat) along with all of their leaders, members, factions, wings and front organizations as well as that of their principal office bearers. 33. The notice issued by the Tribunal along with the Gazette Notification dated 28.02.2024 was displayed on the notice board of the Deputy Commissioner/District Magistrate/Tehsildar in all the district headquarters of the UT of Jammu & Kashmir where the activities of the association were or are believed to be ordinarily carried on. Help of All- India Radio and electronic media of the State edition was also taken. Announcements were made through radio/electronic media at prime time. 34. Apart from the above, notice weas also issued to the Union Territory of Jammu and Kashmir through its Chief Secretary. 35. The Registrar attached to the Tribunal was directed to ensure the compliance of the service of notice issued to the MCJK (Bhat) in the manner indicated. The Registrar was directed to file an independent report in that behalf before the next date of hearing i.e. 20.05.2024. 36. Accordingly, the Union Territory of Jammu and Kashmir filed its affidavit of service dt. 17.05.2024, affirming that service had been effected as directed by the Tribunal. The Registrar, vide his report dated 18.05.2024, also confirmed service of notice issued by the Tribunal. 37. This Tribunal having satisfied itself that service had been effected on MCJK (Bhat) as per the directions contained in the order dated 15.04.2024, proceeded further with the inquiry. On the next hearing which was scheduled for 20.05.2024, no appearance was put in on behalf of MCJK (Bhat) and resultantly, the Tribunal was constrained to proceed ahead with its inquiry. Further, on behalf of Union of India, more time was sought to file affidavits and relevant documents in support of the notification declaring MCJK (Bhat) as an unlawful association. 38. In order to afford an opportunity to both the Central Govt. and the Union Territory of Jammu and Kashmir to lead evidence in support of the grounds set out in the Notification dated 28.02.2024, as also to give another opportunity to MCJK (Bhat) to rebut the material placed on record by the Central Govt. and the Union Territory of Jammu and Kashmir, by the same order i.e. order dated 20.05.2024, further proceedings for recording of evidence were fixed on 20.06.2024, 21.06.24 and 24.06.2024 at Srinagar with due consent of the counsels appearing for the UOI, and the Union Territory of Jammu and Kashmir. Accordingly, a public notice was issued for the hearing at Srinagar on the aforesaid dates. However, prior to the hearings scheduled at Srinagar, this Tribunal also fixed a prior hearing in High Court of Delhi on 5.6.2024 for directions. 39. On 5.6.2024, affidavits in evidence of 2 witnesses on behalf of the Central Govt. were filed and more time was sought on behalf of Union of India/ Central Govt. for filing the affidavits in evidence of other witnesses in support of the Notification of declaration dt. 28.2.2024. Consequently, this Tribunal further adjourned the proceedings for 13.6.2024 and permitted the filing of affidavit/s on behalf of the Union of India by 13.6.2024. Direction was also given to file a list of witnesses. 40. On 13.06.2024, it was submitted on behalf of the Union of India and UT of J&K that of the 5 witnesses[भाग II—खण् ड 3(ii)] भारत का रािपत्र : असाधारण 15 mentioned in the list of witnesses furnished with the Registrar of the Tribunal, 3 affidavits in evidence of J&K police officers (as witnesses) have been filed and the affidavit of the 4th witness shall be filed by 15.6.2024. It was also submitted that affidavit in evidence of the 5th witness i.e. from MHA, GOI, shall be filed by 28.06.24. Accordingly, the Tribunal directed the next proceedings to be held at Srinagar, as already scheduled, in the premises of the High Court of Jammu & Kashmir and Ladakh. 41. On 20.06.2024, statement of the following witness from the Union of India was recorded at Srinagar: S. No. Name of Witness Details of Affidavit Affidavits kept in file no. along with date 1. Sh. Kuldeep Raj, Ex. PW-1/A dated File – Vol. 4 D.S.P, HQ, Anantnag, Kashmir 04.06.2024 Affidavit at page nos. 1 to 7; and exhibits at page nos. 8 to 19 42. On 21.6.2024, following witness on behalf of the UOI was examined at Srinagar: S. No. Name of Witness Details of Affidavit along Affidavits kept in file no. with date 2. Sh. Hariprasad, SDPO, Kothibagh, Ex. PW-2/A dated 02.06.2024 File – Vol. 4 Srinagar Affidavit at page nos. 1 to 10; and exhibits at page nos. 11 to 61 On 24.6.2024, following 2 witnesses on behalf of the UOI were examined at Srinagar: 3. Sh. Zaheeer Abbas, Sub – Divisional Ex. PW-3/A dated 02.06.2024 File – Vol. 4 Police Officer, Nehru Park, Srinagar Affidavit at page nos. 1 to 8; and exhibits at page nos. 9 to 26 4. Sh. Murtaza Ahmad Peer, Ex. PW-4/A dated 22.06.2024 File – Vol. 4 Dy. S.P.,CIK, Srinagar Affidavit at page nos. 1 to 8; and exhibits at page nos. 9 to 16 On 15.7.2024, the final witness on behalf of Union of India was examined in New Delhi: 5. Sh. Rajesh Kumar Gupta, Ex. PW-5/A dated 01.07.2024 File – Vol. 4 Director (CT), MHA, GOI Affidavit at page nos. 1 to 7; and exhibits at page nos. 8 to 26 along with documents/confidential material in a sealed cover Since none appeared on behalf of MCJK (Bhat) to cross examine the witnesses, consequently, all the witnesses were discharged. 43. It needs a highlight that for the Tribunal’s proceedings at Srinagar, Union of India was directed to ensure that any interested party who desires to appear physically before the Tribunal on 20.06.2024, 21.06.2024 and 24.06.2024, should be duly assisted for the said purpose. For the said purpose, ASI Mohd. Niyaz, ARP: Q51324/XI-SEC was deputed for all three dates of hearing at Srinagar, in the High Court premises, for facilitating the appearance of any interested party who desired to appear before this Tribunal. However, none from the general public or the banned association appeared to join the Tribunal proceedings either at Srinagar or for any subsequent proceedings. 44. Vide the order dt. 24.06.2024, further proceedings were directed to be held at High Court of Delhi on 03.07.2024 on which date ld. Counsel for the UOI informed the Tribunal that another affidavit in evidence of an official from the Ministry of Home Affairs, GOI has also been filed with the Registrar of the Tribunal. The proceedings were thereafter adjourned further to 15.07.2024 for which date the said witness from the MHA, GOI was directed to be present for recording his deposition. On 15.07.2024, Sh. Rajesh Kumar Gupta from MHA, GOI was examined as PW 5 and discharged as none appeared on behalf of MCJK (Bhat) for his cross-examination. Witness tendered his affidavit as Ex. PW 5/A, which affidavit was affirmed on 01.07 2024. The said affidavit is in file Vol. 4. The witness, in his affidavit in paragraph 11 claimed privilege in regard to the documents submitted in sealed cover before the Tribunal on 15.7.2024 under section 123 of the Evidence Act read with rule 3(2) and rule 5 of the UAP Rules, 1968. Subject to the claim of privilege being decided in the final report / judgment of this Tribunal, the sealed envelope containing the concerned documents in respect of which the privilege had been claimed, was opened, and the16 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] documents were taken on record. 45. No other witness was examined on behalf of the UOI. 46. After recording of the deposition of PW 5, as aforesaid, on 15.07.2024, ld. Counsel for Union of India appearing for the Union of India sough time to address final submissions. Permission for filing brief written submissions was sought on behalf of the UOI which was granted. The matter was thus listed for final arguments on 27.07.2024 at High Court of Delhi, New Delhi. 47. On 27.07.2024, learned Additional Solicitor General for the Union of India was heard at length and on the same day, the order in the matter was reserved. VI. NON-APPEARANCE/NO REPLY ON BEHALF OF THE MCJK (Bhat) IN THESE PROCEEDINGS 48. Despite service of notice upon the leaders/office bearers of MCJK (Bhat), no appearance was put in on behalf of the said organization to contest the Reference proceedings and as a corollary, the witnesses who deposed on behalf of the Union of India were cross-examined. This Tribunal has also not received any intimation from any interested party seeking to depose before this Tribunal. 49. Ample opportunity has been afforded by this Tribunal to the MCJK (Bhat)/ its office bearers to appear before this Tribunal and give their written version/ adduce evidence, in opposition to the factual version of the Central government, as regards the activities of the concerned factions. Apart from effecting service on the MCJK (Bhat) and its office bearers in the manner aforesaid, this Tribunal even held public hearing/s in Srinagar to enable members of the concerned organization and/ or member of the public, to participate in the proceedings of the Tribunal. However, the said opportunity was not availed by the MCJK (Bhat) or any of its office bearers. 50. This Tribunal is conscious that despite there being no contest from the concerned organization to the notification of the Central Govt. declaring it as an illegal association, Tribunal is still required to make an “objective determination” as mandated in the judgment of the Hon’ble Supreme Court in Jamaat-e-Islami Hind (supra). The credibility of the material/evidence placed on record by the Central Government is still required to be tested. The Supreme Court has cautioned that the procedure to be adopted must achieve this purpose and must not be reduced to mere acceptance of the “ipse dixit of the Central Government”. This Tribunal is thus required to independently assess the credibility of the material / evidence placed on record by the Central Government, and on that basis, come to a conclusion as to whether or not there is sufficient cause for declaring MCJK (Bhat) as unlawful. VII. EVIDENCE ADDUCED BEFORE THE TRIBUNAL PW-1 51. Mr. Kuldeep Raj (PW-1) tendered his affidavit as Ex. PW-1/A and deposed that he is posted as Dy. S.P., Ananatnag, Kashmir. He stated that he is the supervising officer of the case bearing FIR No. 27/1988 and in course of discharge of his duties as supervising officer, had gone through the records of the case FIR No. 27/1988 and was well conversant with the facts thereof. He also deposed that he had been duly authorized by the competent authority to depose before this Tribunal and relied upon such authorization dt. 19.06.2024 as PW 1/A-1. 52. PW 1 deposed that the Central Government, in exercise of its powers conferred Sub- section (1) of section 3 of the Unlawful Activities (Prevention) Act, 1967 has declared the Muslim Conference Jammu and Kashmir (Bhat faction) (hereinafter referred to as “MCKJ-B”) to be an unlawful association vide notification number S.O. 934 (E) dated 28.02.2024. Witness further deposed that on the basis of the brief background note on MCJK-B prepared by the Central Government and the facts of the cases registered against the said organization and its leaders, he could affirm that MCJK-B and its leaders were involved in the secessionist activities. 53. PW 1 further testified that it was borne out from the records and background note that Muslim Conference Jammu and Kashmir is a Pakistan backed secessionist organization, which was formed in year 1985. Since its formation, Muslim Conference has been supporting terrorism and anti-India propaganda for fueling secessionism in Jammu and Kashmir. It started its campaign by resorting to radicalization of the youth towards religious fundamentalism and questioning the accession of Jammu and Kashmir with India. Muslim conference later got split into three factions; one led by Abdul Gani Bhat of Sopore, another by Ghulam Nabi Sumji of Bijebehera and third by Shabir Ahmad Dar of Sopore. The most prominent faces of MCJK-B are Abdul Gani Bhat s/o Habibullah Bhat (founder and chairman of MCJK-S),Jehangir Ahmed Bhat s/o Abdul Gani Bhat (President of MCJK-B) and Advocate Mohammad Ashraf Lone (General Secretary of MCJK-B). 54. Witness further deposed based on records that secession of Jammu and Kashmir has been the prime objective of MCJK (B). The organization and its leaders have always asserted that nothing good can happen to Kashmir so long it was part of India and exploited the 'right to self-determination' for fulfilling the Pakistani agenda of generating feelings of hatred and disaffection against India, to achieve their prime objective. MCJK-B as a secessionist group is[भाग II—खण् ड 3(ii)] भारत का रािपत्र : असाधारण 17 directly involved in propagating anti-India propaganda and secessionism in Jammu and Kashmir through hartal calls, election-boycott, criminal intimidation, communal disharmony, provoking gullible youth to resort to street-violence, arson, stone-pelting, to join terrorist ranks and also glorifying terrorism by visiting the families of the terrorists killed by security forces to pay tributes. 55. PW 1 further deposed that on 20.01.1988 Police Station Anantnag received a letter from DPO Anantnag bearing No. 135/CS and 136/CS along with confidential diaries to the effect that Professor Abdul Gani (leader of Muslim Muthid Mahaaz) has delivered a speech at Shair Bagh Chowk, Anantnag, relevant portion of which was "I will not take much time of the people, as there are some youth available on the stage whom were put in jails for 20 months by Dr. Farooq Abdullah led Vote Chor Sarkar and has registered cases against them without any justification. Let me tell you, if you vote for National Conference or Congress, then you must understand that time is not far away when the Masjids will be turned into Mandirs as Secularism has led to Muslim Genocide in India". Thereafter, he raised the slogans "Yahan Kya Chalay Ga Nizaam-e- Mustafa". He continued " we want to establish Nizam-e-Mustafa here and I am advocating for the same and am not accepting the accession of Kashmir with India. ". In the same event, Abdul Manan Deva delivered a hate speech saying that "… my war is with agents of Indian occupation, who established the National Conference and Congress…". PW 1 testified that as the said speeches promoted feeling of hatred and disharmony between the two communities, FIR No. 27 of 1988 was registered against the accused persons at PS Anantnag u/s 153-A RPC and section 13 of UAPA. A true copy of FIR No. 27/1988 was relied upon by PW 1 as Ex. PW 1/1. 56. PW 1 further deposed that during investigation statement of some material eyewitnesses were recorded u/s 161 CR.P.C who corroborated the contents of the speech and confidential diary and hence, sufficient material was collected against the accused persons establishing commission of the offence. However, the investigation is yet to be completed. True copies of statement of witnesses recorded u/s 161 Cr.P.C in vernacular along with their true English translations were relied upon by PW 1 as Ex. PW 1/2 to Ex. PW 1/4. Witness further deposed that the investigations faced significant challenges due to the volatile situation in the valley orchestrated by separatist leaders and their affiliated groups, who received unwavering support from across the border and terrorist organizations. This climate of fear deterred individuals from coming forward to provide statements, hindering the progress of the investigations and any attempt to probe these separatist organizations and their leaders triggered widespread unrest and turmoil in the affected regions, causing delays in concluding the investigations. Furthermore, certain sympathizers within the government and various departments obstructed the timely resolution of these cases and hence, delay has been caused in completion of the investigation of the present case which is now at its fag end and the chargesheet is also expected to be filed soon. 57. PW 1 testified that from the knowledge acquired by him during the course of service and the records of the case, it is manifest that MCJK-B and its leaders and members have been: a) incessantly encouraging and advocating secession of Jammu and Kashmir from the Indian dominion; b) incessantly encouraging and inciting separatist groups, on religious lines to destabilize the Government of India which are intended to disrupt the territorial integrity of India and have been aimed at inciting individuals and groups of local Muslim community to bring about cession of lawful constitutional authority of Government of India in Jammu and Kashmir; c) have been spearheading/facilitating/escalating secessionist movement and unlawful activities in the Kashmir valley; d) tacitly and tactically supporting militancy and incitement of violence in the territory of Jammu and Kashmir on religious lines; e) exploited the situation in the valley intensely and actively provoked, and lured the youth of Jammu and Kashmir for violence to disrupt the peace in the valley and in order to keep the anti- India pot boiling, announced hartal calls and issued protest calendars, leading to riots which resulted in the injuries and death of several civilians, police and Security Forces. 58. PW 1 further testified that sufficient material has been brought on record which manifests that MCJK-B and leaders and members of the said organization who also had support from across the border have been actively and continuously supporting the separatist organizations and have been openly advocating and inciting the people to bring about a secession of Jammu and Kashmir from the Union of India by propping up the anti-India narrative. Witness deposed that it stands established that the activities of MCJK-B are aimed at causing disaffection, disloyalty and dis- harmony by promoting feelings of enmity and hatred against the lawful government, and the members of MCJK-B are indulging and acting in a manner which is prejudicial to the territorial integrity and sovereignty of the Union of India. PW 1 further deposed that the ban imposed upon the said organization by the Central Government is appropriate and needs to be upheld in national interest. Opportunity for cross-examination was given but not availed in view of non-appearance on behalf of MCJK (Bhat).18 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] PW-2 59. Mr. Hari Prasad (PW-2), currently posted as Sub Divisional Police Officer, Kothibagh, Kashmir tendered his affidavit as Ex. PW2/A and deposed that he is the supervisory officer of the cases bearing FIR no. 23/2023 and FIR no. 46/2010, and was well conversant with the facts thereof. PW 2 deposed that he had been duly authorized by the competent authority to depose before this Tribunal and relied upon such authorization as Ex. PW 2/A-1. 60. Witness further deposed that the Central Government, in exercise of its powers conferred Sub- section (1) of section 3 of the Unlawful Activities (Prevention) Act, 1967 has declared the Muslim Conference Jammu and Kashmir (Bhat faction) (hereinafter referred to as “MCKJ-B”) to be an unlawful association vide notification number S.O. 934 (E) dated 28.02.2024 and on the basis of the brief background note on MCJK-B prepared by the Central Government and the cases registered against the said organization and its leaders, he stated that MCJK-B and its leaders were involved in the secessionist activities. 61. Witness testified that it is borne out from the records and background note that Muslim Conference Jammu and Kashmir, is a Pakistan backed secessionist organization, which was formed in year 1985. Since the formation, Muslim Conference has been supporting terrorism and anti-India propaganda for fueling secessionism in Jammu and Kashmir. It started its campaign by resorting to radicalization of the youth towards religious fundamentalism and questioning the accession of Jammu and Kashmir with India. Muslim Conference later got split into three factions; one led by Abdul Gani Bhat of Sopore, another by Ghulam Nabi Sumji of Bijebehera and third by Shabir Ahmad Dar of Sopore. PW 2 further testified that the most prominent faces of MCJK-B are Abdul Gani Bhat s/o Habibullah Bhat (founder and chairman of MCJK-S), Jehangir Ahmed Bhat s/o Abdul Gani Bhat (President of MCJK-B) and Advocate Mohammad Ashraf Lone (General Secretary of MCJK-B). 62. PW 2 further deposed that it is borne out from the records, background note and the knowledge gathered by him during service that secession of Jammu and Kashmir has been the prime objective of MCJK (B). The organization and its leaders have always asserted that nothing good can happen to Kashmir so long it was part of India and exploited the 'right to self-determination' for fulfilling the Pakistani agenda of generating feelings of hatred and disaffection against India, to achieve their prime objective. Witness further stated that MCJK-B as a secessionist group directly involved in propagating anti-India propaganda through hartal calls, election- boycott, criminal intimidation, communal disharmony, provoking gullible youth to street-violence, arson, stone-pelting, to join terrorist ranks, and also glorifying terrorism by visiting the families of the terrorists killed by security forces during anti-terrorist operations,to pay tributes. 63. PW 2 further deposed that on 09.07.2023, Police Station Kothibagh, Srinagar received an information through reliable sources that one Mohd. Yasin Bhat s/o Ghulam Mohammad r/o Naseembagh, Srinagar has organized a meeting in Habib Restaurant situated at Residency Road and had invited many ex-members of banned unlawful association of JKLF-Y and other separatist activists, who are yet to be identified. It was further learnt that this meeting was a cover up for undertaking separatist/ unlawful activities and the real intention of this meeting was to rekindle the activities of banned JKLF-Y and thereby wage a war against the Government of India to threaten the integrity, sovereignty and security of India. The above said meeting was organized and convened under the garb and cover of eid-e-milan party. On the above said information having been received, FIR no. 23/2023 was registered at PS Kothibagh on 09.07.2023 u/s 10/13 of UAPA and u/s 121A IPC against the named accused persons. A true copy of FIR no. 23/2023 along with its true English translation was relied upon by PW 2 as Ex. PW 2/1. 64. Witness further deposed that during the investigation of the case, statements of witnesses were recorded under section 161 Cr.P.C who corroborated the contents of the written complaint which statements of the witnesses, evidence and other materials collected prima facie established the commission of the offence punishable u/s 10/13/18 UAPA r/w ss. 121A/201 IPC and hence, a charge-sheet dated 06.12.2023 was filed against the accused persons namely (i) Mohd. Yaseen Bhat, (ii) Mohd. Rafiq Phaloo @ Salim Nanaji, (iii) Syed Rehman Shamas @ Shams-u-din Rehmani, (iv) Jahangir Ahmad Bhat, (v) Khursheed Ahmad Bhat, (vi) Shabir Ahmad Dar, (vii) Sajad Hussain Gul, (viii) Firdous Ahmad Shah, (ix) Gh. Hassan Parray @ Firdousi, (x) Saheel @ Suhail Ahmad Mir, (xi) Farooq Siddiqui @ Papa @ Dada, presently settled at Canada and is absconding, and (xii) Khursheed Ahmad Mir, in POK and also absconding, before the jurisdictional Court. True copies of the statement of witnesses recorded under section 161 Cr.P.C in vernacular along with their true English translations were relied upon by PW 2 as Ex. PW 2/2 to Ex. PW 2/7. 65. Witness also relied upon true copies of recovery/seizure memos prepared during the course of investigation of FIR No 23/2023, in vernacular along with their true English translations as Ex. PW 2/8 to Ex. PW 2/17. PW 2 further elide upon true copies of disclosure memos recorded during the investigation of FIR No 23/2023, in vernacular, along with their true English translations as Ex. PW 2/18 and Ex. PW2/19. Further, Witness relied upon a copy of the Charge-sheet filed in FIR No 23/2023 as Ex. PW 2/20. 66. PW 2 further deposed about registration of FIR No. 46/2010. Witness stated that on 17.06.2010, PS Kothibagh received a docket through Const. Manzoor Ahmed disclosing that at about 12:45 hours, In-Charge P.S. Kothibagh along with escort were performing patrolling duty at R.K Crossing when he saw vehicles coming from[भाग II—खण् ड 3(ii)] भारत का रािपत्र : असाधारण 19 Rajbagh boarded with leaders and workers affiliated with Hurriyat-M headed by (i) Mirwaiz Maulvi Umer Farooq, (ii) Abid Hussain Badgami, (iii) Professor Ab Gani Bhat, (iv) Nayeem Ahmad Khan, (v) Bilal Gani Lone, (vi) ZaffarAkber Bhat and (vii) Abass Ansari and upon reaching the chowk, they came down from the vehicles and sat on the road which halted the traffic. Based on the complaint, FIR no. 46/2010 was registered at PS Kothibagh against the accused persons under section 341 of RPC. A true copy of FIR no. 46/2010 in vernacular along with its true English translation was relied upon by PW 2 as Ex. PW 2/21. 67. PW 2 testified that during investigation of the case, statements of witnesses were recorded under section 161 of Cr.P.C who corroborated the contents of the written complaint and investigation revealed that larger intent behind the said unlawful road blockage was to create an atmosphere for secession of Jammu & Kashmir from the Union of India. True copies of the statements of witnesses recorded under section 161 Cr.P.C were relied upon by PW 2 as Ex. PW 2/22 to Ex. PW 2/24. Witness also relied on a copy of the seizure memo dt. 24.07.2023 prepared in FIR no. 23/2023, as Ex. PW 2/25 which inadvertently was missed out in his affidavit. Witness deposed to the effect that the investigations faced significant challenges due to the volatile situation in the valley orchestrated by separatist leaders and their affiliated groups, who received unwavering support from across the border and terrorist organizations which deterred individuals from coming forward to provide statements, hindering the progress of the investigations and any attempt to probe these separatist organizations and their leaders triggered widespread unrest and turmoil in the affected regions, causing delays in concluding the investigations. Furthermore, it was only after the reorganization of the State that significant progress could be made in the investigation which is now at its fag end and chargesheet was likely to be filed soon. 68. PW 1 further affirmed that the above referred acts of the MCJK-B lead to the conclusion that this organisation is bent upon to work towards secession and separation of the State of Jammu and Kashmir from the Union of India, and is continuously encouraging the armed insurgency aimed at causing disaffection, disloyalty, dis- harmony by promoting feelings of enmity and hatred against the lawful government in a manner prejudicial to the territorial integrity and sovereignty of the Indian Union. Thus, the activities of MCJK-B fall within the purview of unlawful activities. Witness deposed that from the knowledge acquired during service and the records of the cases, it is manifest that MCJK-B and its leaders and members have been: a) incessantly encouraging and advocating secession of Jammu and Kashmir from the Indian dominion; b) incessantly encouraging and inciting separatist groups, on religious lines to destabilize the Government of India which are intended to disrupt the territorial integrity of India and have been aimed at inciting individuals and groups of local Muslim community to bring about cession of lawful constitutional authority of Government of India in Jammu and Kashmir; c) have been spearheading/facilitating/escalating secessionist movement and unlawful activities in the Kashmir valley; d) tacitly and tactically supporting militancy and incitement of violence in the territory of Jammu and Kashmir on religious lines; e) exploited the situation in the valley intensely and actively provoked, and lured the youth of Jammu and Kashmir for violence to disrupt the peace in the valley and in order to keep the anti- India pot boiling, announced hartal calls and issued protest calendars, leading to riots which resulted in the injuries and death of several civilians, police and Security Forces. 69. Witness further testified that sufficient material has been brought on record which manifests that MCJK-B and leaders and members of the said organization who also had support from across the border have been actively and continuously supporting the separatist and banned organizations and have been openly advocating and inciting the people to bring about a secession of Jammu and Kashmir from the Union of India which is prejudicial to the territorial integrity and sovereignty of the Union of India. Opportunity for cross-examination was given but not availed in view of non-appearanceof on behalf of MCJK (Bhat). PW-3 70. Sh. Zaheer Abbas (PW-3) who currently is Sub-Divisional Police Officer, Nehru Park, Srinagar tendered his affidavit as Ex. PW3/A and deposed that he was the supervising officer of the case bearing FIR No. 37/1998 and that in the course of his duties, had gone through the records of the case diary of FIR No. 37/1998, and was well conversant with its facts. Witness further deposed that he had been authorized by the competent authority to depose before this Tribunal and relied upon such authorization as Ex. PW 3/A-1. 71. PW 3 deposed that the Central Government in exercise of its powers under Section 3(1) of the Unlawful Activities (Prevention) Act, 1967 vide notification number S.O. 934 (E) dated 28th February 2024 has declared MCJK (Bhat) to be an unlawful association. Witness stated he had read the brief background note on MCJK (Bhat) prepared20 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] by the Central Government and in view of the various cases registered against the said organization and its leaders, he could affirm that MCJK (Bhat) and its leaders were involved in the secessionist activities. PW 3 further deposed that it was borne out from the records and background note that Muslim Conference Jammu and Kashmir is a Pakistan backed secessionist organization, which was formed in year 1985. Since the formation, Muslim Conference has been supporting terrorism and anti-India propaganda for fueling secessionism in Jammu and Kashmir. It started its campaign by resorting to radicalization of the youth towards religious fundamentalism and questioning the accession of Jammu and Kashmir with India. Muslim conference later got split into three factions; one led by Abdul Gani Bhat of Sopore, another by Ghulam Nabi Sumji of Bijebehera and third by Shabir Ahmad Dar of Sopore. The most prominent faces of MCJK-B are Abdul Gani Bhat s/o Habibullah Bhat (founder and chairman of MCJK-S), Jehangir Ahmed Bhat s/o Abdul Gani Bhat (President of MCJK-B) and Advocate Mohammad Ashraf Lone (General Secretary of MCJK-B). 72. PW 3 testified that it is further borne out from the records and the knowledge gathered during service that secession of Jammu and Kashmir has been the prime objective of MCJK (B). The organization and its leaders have always asserted that nothing good can happen to Kashmir so long it was part of India and exploited the 'right to self- determination' for fulfilling the Pakistani agenda of generating feelings of hatred and disaffection against India, to achieve their prime objective. Witness affirmed that MCJK-B is a secessionist group directly involved in propagating anti-India propaganda through hartal calls, election-boycott, criminal intimidation, communal disharmony, provoking gullible youth to street-violence, arson, stone-pelting; to join terrorist ranks, and also glorifying terrorism by visiting the families of the terrorists killed by security forces, to pay tributes. 73. PW 3 further deposed that on 21.02.1998, a written docket was received at PS Nishat from SGCT Ghulam Nabi disclosing that on the said date he saw that at New Theed Harwan, leaders of Hurriyat Conference namely (i) Mohd. Yasin Malik (ii) Javid Ahmad Mir (iii) Moulvi Abass Ansari and other unknown persons who started raising slogans against India and requested people to boycott the parliamentary elections, made inflammatory statements against the contesting candidates and workers for keeping them away from the election campaign, and also directed their cadres and general public to disrupt any such process. They also exhorted the public for continuing their support to the Hurriyat Conference for freedom of Jammu & Kashmir. Based on the above said complaint, FIR no. 37/1998 was registered at PS Nishat on 21.02.1998 u/s 132B of Representation of People Act and u/s 188 of RPC against the named accused. A true copy of FIR No. 37/1998 along with its true English translation was relied upon by PW 3 as Ex. PW 3/1. Witness further deposed that during the investigation of the case, statement of witnesses were recorded under section 161 Cr.P.C who corroborated the contents of the written complaint and on the basis of evidence collected, prima facie commission of the offences was made out against accused persons, namely (i) Mohd. Yasin Malik (ii) Javid Ahmad Mir (iii) Moulvi Abbas Ansari (iv) Prof. Abdul Gani Bhat and(v) Gh. Nabi Sumji. Hence, a charge-sheet bearing challan no. 12/2005 dated 05.04.2005 was filed before the jurisdictional Court. True copies of the statement of witnesses recorded under section 161 Cr.P.C were relied upon by PW 3 as Ex. PW 3/3 to Ex. PW 3/6, and a copy of the charge-sheet filed in FIR No 37/1998 was relied upon as Ex. PW 3/2. 74. PW 3 further deposed that from the knowledge acquired during the course of his service and the records of the criminal cases, it is manifest that MCJK-B and its leaders and members have been: a) incessantly encouraging and advocating secession of Jammu and Kashmir from the Indian dominion; b) incessantly encouraging and inciting separatist groups, on religious lines to destabilize the Government of India which are intended to disrupt the territorial integrity of India and have been aimed at inciting individuals and groups of local Muslim community to bring about cession of lawful constitutional authority of Government of India in Jammu and Kashmir; c) have been spearheading/facilitating/escalating secessionist movement and unlawful activities in the Kashmir valley; d) exploited the situation in the valley intensely and actively provoked, and lured the youth of Jammu and Kashmir for violence to disrupt the peace in the valley and in order to keep the anti- India pot boiling, announced hartal calls and issued protest calendars, leading to riots which resulted in the injuries and death of several civilians, police and Security Forces. 75. PW 3 concluded by further affirming that sufficient material has been brought on record which manifests that MCJK-B and leaders and members of the said organization have been actively and continuously supporting the separatist and banned organizations, and have been openly advocating and inciting the people to bring about a secession of Jammu and Kashmir from the Union of India which activities of MCJK-B are aimed at causing disaffection, disloyalty and dis-harmony by promoting feelings of enmity and hatred against the lawful government in a manner which is prejudicial to the territorial integrity and sovereignty of the Union of India. Opportunity for cross-examination was given but not availed in view of non-appearance on behalf of MCJK (Bhat). PW-4 76. Sh. Murtaza Ahmed Peer (PW-4), currently posted as Dy. S.P. (CIK), Srinagar tendered his affidavit as Ex.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : असाधारण 21 PW4/A and deposed that he is the current investigating officer of criminal case bearing FIR no. 15/1991, and was well conversant with the facts of the case. Witness further affirmed that he had been duly authorized by the competent authority to depose before this Tribunal and relied upon such authorization as PW 4/ A-1. 77. PW 4 deposed that the Central Government in exercise of its powers under Section 3(1) of the Unlawful Activities (Prevention) Act, 1967 vide notification number S.O 934 (E) dated 28th February 2024 has declared MCJK (Bhat) to be an unlawful association. Witness stated he had read the brief background note on MCJK (Bhat) prepared by the Central Government and in view of the various cases registered against the said organization and its leaders, he could affirm that MCJK (Bhat) and its leaders were involved in the secessionist activities. 78. PW 4 further deposed that it was borne out from the records and background note that Muslim Conference Jammu and Kashmir is a Pakistan backed secessionist organization, which was formed in year 1985. Since the formation, Muslim Conference has been supporting terrorism and anti-India propaganda for fueling secessionism in Jammu and Kashmir. It started its campaign by resorting to radicalization of the youth towards religious fundamentalism and questioning the accession of Jammu and Kashmir with India. Muslim conference later got split into three factions; one led by Abdul Gani Bhat of Sopore, another by Ghulam Nabi Sumji of Bijebehera and third by Shabir Ahmad Dar of Sopore. The most prominent faces of MCJK-B are Abdul Gani Bhat s/o Habibullah Bhat (founder and chairman of MCJK-S),Jehangir Ahmed Bhat s/o Abdul Gani Bhat (President of MCJK-B) and Advocate Mohammad Ashraf Lone (General Secretary of MCJK-B). PW 4 testified that it is further borne out from the records and the knowledge gathered during service that secession of Jammu and Kashmir has been the prime objective of MCJK (B). The organization and its leaders have always asserted that nothing good can happen to Kashmir so long it was part of India and exploited the 'right to self-determination', for fulfilling the Pakistani agenda of generating feelings of hatred and disaffection against India, to achieve their prime objective. Witness affirmed that MCJK-B is a secessionist group directly involved in propagating anti-India propaganda through hartal calls, election-boycott, criminal intimidation, communal disharmony, provoking gullible youth to street-violence, arson, stone-pelting; to join terrorist ranks, and also glorifying terrorism by visiting the families of the terrorists killed by security forces, to pay tributes. 79. PW 4 further testified that Police Station CIK received an information that with the help of border enemy countries, the local secessionist organizations were continuously opposing the policies of the Union of India and were acting against the integrity and sovereignty of the Country for the purpose of seceding the State of J & K from Union of India, by creating chaos and disturbances by inciting the youth to spread terror and for that purpose, instigated the youth to ex-filtrate over to PoK for acquiring illegal arms and ammunition training after which these youth infiltrated to Valley with illegal arms and ammunition and started terror activities in order to secede the state of Jammu & Kashmir from the Union of India. They started damaging the resources of the state of J & K, tried to cut off the communication channels viz.bridges and roads, started to massacre peace-loving citizens and government employees. Organizations like JEI, JKLF, JKFPL were providing logistic support to these terrorists. Amongst these, leaders Syed Ali Shah Geelani, Prof. Ab.Gani Bhat, Shabir Shah and Ab.Gani Lone were involved in creating chaos in the state of J&K and were put under house arrest but while being under house arrest, they continued their anti-national activities and support for these terrorists. Furthermore, for boosting the morale of these terrorists, they used to publish and glamorise militancy through medium of print media like daily newspapers namely “Al-Safa” and “Srinagar Times”. Accordingly, based on the above facts and circumstances, FIR no. 15/1991 was registered at CIK PS under sections 153-A, 120-B of RPC, u/s 3⁄4 of TADA, u/s 13 of ULA(P) Act, u/s 2/3 of E&IMCO Act, and u/s 3/25 of LA Act. A true copy of FIR no. 15/1991 was relied upon by PW 4 as Ex. PW 4/1. 80. PW 4 further testified that during investigation of the FIR, the IO seized a copy of the daily newspaper, “Srinagar Times” dated 07.01.1992 from Gh. Qadir, worker of the said newspaper, as a proof. A seizure memo was prepared before the witness. A true copy of the seizure memo dated 07.01.1992 along with its translated copy was relied upon by PW 4 as Ex. PW 4/2. Witness further affirmed that the investigation conducted till date prima facie establishes commission of the aforesaid offences, however, same is yet to be concluded since the investigation has been hampered due to extreme law and order situation in the Valley though the charge-sheet is likely to be filed soon. 81. PW 4 further deposed that from the knowledge acquired during the course of service and the records of the criminal cases, it is manifest that MCJK-B and its leaders and members have been: a) incessantly encouraging and advocating secession of Jammu and Kashmir from the Indian dominion; b) incessantly encouraging and inciting separatist groups, on religious lines to destabilize the Government of India which are intended to disrupt the territorial integrity of India and have been aimed at inciting individuals and groups of local Muslim community to bring about cession of lawful constitutional authority of Government of India in Jammu and Kashmir; c) have been spearheading/facilitating/escalating secessionist movement and unlawful activities in the Kashmir valley; d) tacitly and tactically supporting militancy and incitement of violence in the territory of Jammu and Kashmir on religious lines;22 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] e) exploited the situation in the valley intensely and actively provoked, and lured the youth of Jammu and Kashmir for violence to disrupt the peace in the valley and in order to keep the anti- India pot boiling, announced hartal calls and issued protest calendars, leading to riots which resulted in the injuries and death of several civilians, police and Security Forces. 82. PW 4 concluded by further affirming that sufficient material has been brought on record which manifests that MCJK-B and leaders and members of the said organization have been actively and continuously supporting the separatist and banned organizations, and have been openly advocating and inciting the people to bring about a secession of Jammu and Kashmir from the Union of India which activities of MCJK-B are aimed at causing disaffection, disloyalty and dis-harmony by promoting feelings of enmity and hatred against the lawful government in a manner which is prejudicial to the territorial integrity and sovereignty of the Union of India. Opportunity for cross-examination was given but not availed due to non-appearance on behalf of MCJK (Bhat). PW-5 83. Sh. Rajesh Kumar Gupta, Director (Counter Terrorism), MHA, GOI, tendered his affidavit as Ex. PW5/A and deposed that he was well conversant with the facts and circumstances of the case as he had been dealing with all the relevant files/records pertaining to MCJK (Bhat) in his official capacity. Witness further stated that he had been duly authorized by the competent authority to depose before this Tribunal and relied upon copy of such authorization by way of an official noting as Ex. PW 5/A-1, the original of which was submitted during his deposition in a sealed cover along with other documents. 84. Witness deposed that the notification no. S. O. 934(E) dated 28th February, 2024, issued by the Central Government is based on the information and material received from the central intelligence agency and Criminal Investigation Department of U.T. of J &K, with regard to the unlawful activities of the Muslim Conference Jammu and Kashmir (Bhat Faction). PW 5 further deposed that on the basis of information received as above regarding unlawful activities of MCJK-B, a note was prepared for the consideration of the Cabinet Committee on Security. Thereafter, the Cabinet Committee on Security took the decision and approved the proposal contained in the above note, in the meeting held on 21st February, 2024. Accordingly, the declaration was made and published vide notification dated 28th February, 2024, bearing no. S.O. 934 (E). A copy of the said notification published in the official gazette dated 28.02.2024 was relied upon by PW 5 as Ex.PW 5/1. Witness also deposed that the background note submitted to this Tribunal in terms of Rule 5 of the Unlawful Activities Prevention Rules 1968, vide letter dated 26th March, 2024 is based upon the material/ information as contained in the concerned file. A copy of the said background note was relied upon by PW 5 as Ex. PW5/2. 85. PW 5 affirmed that various cases registered by the J&K Police throw light on the unlawful and subversive activities of its chairman and members of MCJK-B and that the officers concerned of the UT of J&K have filed affidavits before this Tribunal in respect of cases registered in UT of J& K against the Chairman and members of MCJK-B under various provisions of law including the Unlawful Activities (Prevention) Act, 1967, Indian Penal Code 1860, Ranbir Penal Code 1932, etc. Witness further testified that various witnesses have already adduced evidence during the course of proceedings before this Tribunal in support of the declaration as contained in notification no. S. O. 934(E) dated 28th February, 2024 which clearly establish that MCJK-B is continuously indulging in unlawful activities, posing a serious threat to the internal security of the country. PW 5 further deposed that in addition to the above adduced evidence, various intelligence inputs show that MCJK-B is continuing its unlawful activities which are prejudicial to the security of the country. The original file (duly indexed) containing above mentioned central intelligence reports/inputs was submitted for the perusal of this Tribunal in a sealed cover and was relied upon by PW 5 as Ex. PW 5/3. Witness deposed that the Central Government is seeking the privilege for the original file mentioned above as Ex. PW 5/3 and accordingly, relied on section 123 of Evidence Act read with Rule 3(2) and proviso to Rule 5 of Unlawful Activities (Prevention) Rules of 1968 since the Central Govt. considers it against the public interest to disclose the same to either the banned association or to any third-party inter-alia in terms of the provisions of the Unlawful Activities (Prevention) Rules, 1968. 86. PW 5 concluded his testimony by deposing that MCJK-B is promoting anti-national and separatist sentiments prejudicial to the integrity and security of the country and is tacitly supporting terrorist activities and incitement of violence and is seeking secession of Jammu and Kashmir from the Union of India in which regard cogent and irrefutable evidence has emerged till now. Witness affirmed that it has also been established that the activities of MCJK-B were aimed at causing disaffection, disloyalty and dis-harmony by promoting feeling of enmity and hatred against the lawful government and in a manner prejudicial to the territorial integrity and sovereignty of the India in view of which the declaration made by the Central Government vide Notification No. S. O. 934(E) dated 28th February, 2024 may be confirmed and upheld in as national interest. Opportunity for cross-examination was given but not availed in view of non-appearance on behalf of MCJK (Bhat). VIII. SUBMISSIONS ON BEHALF OF THE UOI 87. On 27.07.2024 the Reference was fixed for hearing final submissions. On the said date, learned Additional[भाग II—खण् ड 3(ii)] भारत का रािपत्र : असाधारण 23 Solicitor General for the Union of India, addressed submissions on the claim for privilege in respect of the sealed cover documents submitted by PW 5 as also on the existence of ‘sufficient grounds’ for declaring MCJK (Bhat) as an ‘unlawful association’. While arguing for claiming privilege for the documents produced in the sealed cover, ld. Addl. SG referred to section 123 of the Evidence Act read with rule 3(2) of the UAP Rules, 1968, which are reproduced as under: Indian Evidence Act, 1872 “123. Evidence as to affairs of State – No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.” The Unlawful Activities (Prevention) Rules, 1968 “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 Indian Evidence Act, 1872 (1 of 1872). (2) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), where any books of account 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 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 records of the proceedings before it; or (b) Allow inspection of, or grant a copy of, the whole of or any extract from, such books of account or other documents by or to any person other than a party to the proceedings before it.” 88. Ld. Additional SG submitted that the claim of privilege by the Union of India has been made as the documents are of such a nature that the non-disclosure of which would be in the interest of the public. It was submitted that this concept of public interest is taken into account even in the criminal proceedings qua the accused, whereas in juxtaposition, the present matter stands at a much higher pedestal and involves the issue of sovereignty and integrity of the country. Ld. Addl. SG submitted that in the cases concerning national security, sovereignty and integrity, the Tribunal has to interpret and analyze the material differently as the decisions taken by the Central Government in such cases are based on highly sensitive information and inputs; and the effects of such decisions are not confined to the boundaries of the nation. 89. To support her arguments, ld. Addl. SG has relied upon the judgment in a case of preventive detention delivered in Raj Kumar Singh vs. State of Bihar (1986) 4 SCC 407 wherein the Hon’ble Supreme Court, inter alia, held as under: “The executive authority is not the sole judge of what is required for national security or public order. But the court cannot substitute its decision if the executive authority or the appropriate authority acts on proper materials and reasonably and rationally comes to that conclusion even though a conclusion with which the court might not be in agreement. It is not for the court to put itself in the position of the detaining authority and to satisfy itself that untested facts reveal a path of crime provided these facts are relevant. See in this connection the observations of O. Chinnappa Reddy, J. in Vijay Narain Singh case [(1984) 3 SCC 14: 1984 SCC (Cri) 361: AIR 1984 SC 1334: (1984) 3 SCR 435 ] at p. 440 and 441. (SCC p. 19, para 1) 346. Similarly, in the case of Union of India vs. Rajasthan High Court, (2017) 2 SCC 599: 2016 SCC Online SC 1468.. It was not for the court in the exercise of its power of judicial review to suggest a policy which it considered fit. The formulation of suggestions by the High Court for framing a National Security Policy travelled far beyond legitimate domain of judicial review. Formulation of such a policy is based on information and inputs which are not available to the court. The court is not an expert in such matters. Judicial review is concerned with the legality of executive action and the court can interfere only where there is a breach of law or a violation of the Constitution.” 90. The ld. Addl. SG has also placed reliance upon the judgment delivered in Ex-Armymen's Protection Services (P) Ltd. v. Union of India, (2014) 5 SCC 409, wherein it has been inter alia held as under: “15. It is difficult to define in exact terms as to what is “national security”. However, the same would generally include socio-political stability, territorial integrity, economic solidarity and strength, ecological balance, cultural cohesiveness, external peace, etc.24 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] 16. What is in the interest of national security is not a question of law. It is a matter of policy. It is not for the court to decide whether something is in the interest of the State or not. It should be left to the executive.” 91. The ld. Addl. SG submitted that the UAPA and the Rules framed there under provide for a mechanism to claim privilege and withhold certain facts/documents to seek non-disclosure of the same. The learned ASG then placed reliance on the judgment delivered in Jamaat-e-Islami Hind (supra), wherein the Hon’ble Supreme Court has held as under: "19. ...the proviso to sub-section (2) of Section 3 of the Act itself permits the Central Government to withhold the disclosure of acts which it considers to be against the public interest to disclose. Similarly, Rule 3(2) and the proviso to Rule 5 of the Unlawful Activities (Prevention) Rules, 1968 also permit nondisclosure of confidential documents and information which the Government considers against the public interest to disclose… 20… 21. It is obvious that the unlawful activities of an association may quite often be clandestine in nature and, therefore, the source of evidence of the unlawful activities may require continued confidentiality in public interest. In such a situation, disclosure of the source of such information, and, may be, also full particulars thereof, is likely to be against the public interest. The scheme of the Act and the procedure for inquiry indicated by the Rules framed thereunder provide for maintenance of confidentiality, whenever required in public interest. 22....in such cases where the Tribunal is satisfied that non-disclosure of such information to the association or its office-bearers is in public interest, it may permit its non-disclosure to the association or its office- bearers, but in order to perform its task of adjudication as required by the Act, the Tribunal can look into the same for the purpose of assessing the credibility of the information and satisfying itself that it can safely act on the same. In such a situation, the Tribunal can devise a suitable procedure whereby it can itself examine and test the credibility of such material before it decides to accept the same for determining the existence of sufficient cause for declaring the association to be unlawful. The materials need not be confined only to legal evidence in the strict sense. 23… 24. Such a modified procedure while ensuring confidentiality of such information and its source, in public interest, also enables the adjudicating authority to test the credibility of the confidential information for the purpose of deciding whether it has to be preferred to the conflicting evidence of the other side. This modified procedure satisfies the minimum requirements of natural justice and also retains the basic element of an adjudicatory process which involves objective determination of the factual basis of the action taken." 92. The ld. Addl. SG also relied on the judgment delivered in People’s Union for Civil Liberties vs. Union of India, (2004) 2 SCC 476, wherein it was, inter alia, held as under: “69. The legislative policy behind the aforementioned provisions is no longer res integra. The State must have the prerogative of preventing evidence being given on matters that would be contrary to public interest. 70. For determining a question when a claim of privilege is made, the Court is required to pose the following questions: (1) whether the document in respect of which privilege is claimed, is really a document (unpublished) relating to any affairs of State; and (2) whether disclosure of the contents of the document would be against public interest? 71. When any claim of privilege is made by the State in respect of any document, the question whether the document belongs to the privileged class has first to be decided by the court. The court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. The claim of immunity and privilege has to be based on public interest. 72. The section does not say who is to decide the preliminary question viz. whether the document is one that relates to any affairs of State, or how it is to be decided, but the clue in respect thereof can be found in Section 162. Under Section 162 a person summoned to produce a document is bound to bring it to the court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court‖. It further says that: The court, if it deems fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility 73. In order to claim immunity from disclosure of unpublished State documents, the documents must relate to affairs of the State and disclosure thereof must be against interest of the State or public interest.” 93. The ld. ASG, thus, submitted that from a bare reading of the aforesaid judgment of the Supreme Court, it is[भाग II—खण् ड 3(ii)] भारत का रािपत्र : असाधारण 25 clear that an enquiry contemplated under the UAPA gives a right to the government to claim privilege of sensitive documents in public interest/national interest and in the interest of justice; which right has been duly upheld by the Supreme Court; and that in the present case, the documents for which claim of privilege, by their very nature, are confidential and sensitive in nature and, therefore, cannot be supplied as a public document.The ld. ASG further submitted that the documents form a part of the evidence collected by the intelligence agencies which pertains to secessionist and unlawful activities of the MCJK - B and those associated with it and the same can be verified by the Tribunal only. The ld. Addl. SG further submitted that the nature of material placed in the sealed cover by the Central Government is in the form of intelligence reports, secret information collected from time to time by the investigating and intelligence agencies, communications between the intelligence agencies, information which may lead to further recoveries, discoveries of facts as also unearth conspiracies, the disclosure whereof would be clearly detrimental to the larger public interest and the security of the State. The ld. Addl. SG submitted that the material filed by the Central Government contains the note then put up to the Cabinet Committee on Security along with documents supporting the note and the grounds on which the notification was issued. Hence, the claim of privilege of the sealed cover documents by the Central Government is in accordance with law and the said documents are not required to be disclosed in the public interest. The ld. Addl. SG further submitted that the privilege of the said documents is based on the nature of documents which impinge upon national security. 94. Ld. Addl. SG has also placed reliance, in regard to the claim of privilege, on the following judgments of the Hon'ble Supreme Court: (a) S.P. Gupta Vs. Union of India (1981) Supp SCC 87 (b) Iqbal Singh Marwah Vs. Meenakshi Marwah (2005) 4 SCC 370 95. Ld. Addl. SG submitted that with regard to the claim of privilege for non-disclosure of sealed documents, the Hon’ble Supreme Court in S.P. Gupta (supra), has held as under: “73. We have already pointed out that whenever an objection to the disclosure of a document under Section 123 is raised, two questions fall for the determination of the court, namely, whether the document relates to affairs of State and whether its disclosure would, in the particular case before the court, be injurious to public interest. The court in reaching its decision on these two questions has to balance two competing aspects of public interest, because the document being one relating to affairs of State, its disclosure would cause some injury to the interest of the State or the proper functioning of the public service and on the other hand if it is not disclosed, the nondisclosure would thwart the administration of justice by keeping back from the court a material document. There are two aspects of public interest clashing with each other out of which the court has to decide which predominates. The approach to this problem is admirably set out in a passage from the judgment of Lord Reid in Conway v. Rimmer [(1968) AC 910, 952, 973, 979, 987, 993 : (1968) 1 All ER 874 (HL)] : “It is universally recognized that there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. There are many cases where the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it. With regard to such cases it would be proper to say, as Lord Simon did, that to order production of the document in question would put the interest of the State in jeopardy. But there are many other cases where the possible injury to the public service is much less and there one would think that it would be proper to balance the public interests involved.” 96. Ld. Addl. SG, therefore, submitted that the rigors of S.P Gupta (supra) for claiming privilege must be read in context of the provisions of UAPA and the Rules framed there under which provide that document, disclosure whereof may not be in the public interest, be not disclosed. She further submitted that the UAP Rules, as quoted above, start with a non obstante clause and thus, an in-built mechanism has been provided under the UAPA and the Rules framed there under. Accordingly, the Tribunal is mandated to grant privilege, forbidding disclosure where the claim of the Government is that the disclosure of such documents could affect the larger public interest of the nation by jeopardizing the safety and sovereignty of the country and where the Tribunal also finds that the public interest outweighs the interest of the association/members/office bearers. 97. Ld. Addl. SG submitted that the claim of confidentiality has to satisfy the test of character of the document and if on an objective satisfaction it is concluded that the document is of such a character that its disclosure will injure public interest, the contents thereof cannot be permitted to be disclosed to the other side. 98. The ld. ASG also submitted that the decision of the previous Tribunals constituted under Section 4 of the UAPA, in which the claim of privilege by the Central Government had been allowed holding that the same satisfied the requirement of section 123 of the Evidence Act, are binding on this Tribunal in view of the provisions of Section 5(7) of the UAPA which provide that the proceedings before this Tribunal are judicial proceedings and, therefore,26 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] reliance has been placed on the Extraordinary Gazette Notification bearing no CG-DL-E-27032023-244721 published in Part II—Section 3—Sub-section (ii) having No. 1382 dated Monday, March 27, 2023/Chaitra 6, 1945 whereby, Tribunal comprising of Hon'ble Mr Justice Dinesh Kumar Sharma, Judge, Delhi High Court in exercise of the powers conferred by sub-Section (3) of section 4 of the said Act, passed an order on the 21st March, 2023, confirming the declaration made by Central Government declaring the Popular Front of India (PFI) and its associates or affiliates or fronts including Rehab India Foundation (RIF), Campus Front of India (CFI), All India Imams Council (AIIC), National Confederation of Human Rights Organization (NCHRO), National Women‘s Front, Junior Front, Empower India Foundation and Rehab Foundation, Kerala as ‘unlawful associations’ vide notification of the Government of India bearing number S.O. 4559 (E), dated the 27th September, 2022, published in the Gazette of India, Extraordinary, Part II, dated the 28th September, 2022. 99. In view of the aforesaid position, the learned ASG submitted that the Central Government respectfully claims privilege on the documents contained in the sealed cover, as mentioned in the affidavit filed by the Central Government. 100. Adverting to the existence of sufficient grounds for declaring the MCJK (Bhat) as an unlawful association, ld. Addl. SG further submitted that the statement of objects and reasons of the UAPA underlines the purpose of the enactment to provide for the more effective prevention of certain unlawful activities of individuals and associations and for matters connected therewith. She submitted that the statute empowers the Parliament to impose by a due process of law reasonable restrictions in the interest of sovereignty and integrity of India on the right to form an association, freedom of speech and expression, and on right to assemble peacefully and with arms. Ld. Addl. SG submitted that section 48 of the UAPA itself provides that the provisions of the UAPA and the Rules made there- under shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of an enactment other than this Act, giving it a clear over-riding position. 101. Learned Addl. SG further submitted that the validity of the provisions of the Act ought to be judged in the backdrop of the history of the Act necessitating their introduction. Learned ASG submitted that as per the Statement of Objects and Reasons, the Unlawful Activities (Prevention) Act, 1963 was enacted to make powers available for dealing with activities directed against the integrity and sovereignty of India which may take the manner and form either of “terrorism” or “other unlawful activity” that threatens the sovereignty of India. 102. Ld. Addl. SG highlighted that the exception to the freedom of speech and expression, and to form associations and union, under Article 19(1) of the Constitution of India, was inserted in the form of “sovereignty and integrity of India” in Article 19(2) and 19(4), after the National Integration Council appointed a Committee on National Integration and Regionalization. The said Committee was to look into the aspect of putting reasonable restrictions in the interests of the sovereignty and integrity of India. Ld. Addl. SG submitted that pursuant to the acceptance of recommendations of the Committee, the Constitutional Sixteenth Amendment) Act 1963 was enacted to impose reasonable restrictions in the interests of the sovereignty and integrity of India. Further, in order to implement the provisions of the 1963 Act, the Unlawful Activities (Prevention) Bill was introduced in the Parliament. The main objective of the Unlawful Activities (Prevention) Act is to make powers available for dealing with activities directed against the integrity and sovereignty of India. 103. Ld. Addl. SG further highlighted that after Independence, Parliament has passed many laws to regulate national security and to protect sovereignty of India. The UAPA, 1967 is an Act to provide for the more effective prevention of certain unlawful activities of individuals and associations and for dealing with terrorist activities and other matters connected therewith. 104. Ld. Addl. SG further submitted that to achieve the aforesaid purpose of tackling the menace of activities inimical to the sovereignty and integrity of India, the legislature in its wisdom decided to create two species of the offence i.e. a. Unlawful Activity & Unlawful Association [S-2(o) r/w Chapter 2 & 3 (Sections 3-14)]; and b. Terrorist Act & Terrorist Organization [S-2(k), (I),(m) r/w Chapter 4-6 (Sections 15-40)]. 105. Ld. Addl. SG outlined that the growing threat of terrorism posed immediate harm to the lives of the Indian citizens and the security of the State which has led to the enactments of special deterrent laws from time to time. Learned Addl. SG submitted that notably, the repeal of the Prevention of Terrorist Activities Act, 2002 entailed an absence of a legal framework to address the menace of terrorism. Accordingly, as a consequence, the UAPA was amended to include a definition of the term 'terrorism' and to give substantive powers to the Indian State to address the same. The amendments made therein were made also keeping in mind India's commitments under the Security Council Resolution dated 28thSeptember, 2001, which enjoined to fight both terrorism as well as terror funding, which was to be treated as a genus of terrorism. 106. In view of the aforesaid, ld. Addl. SG submitted that it is evident that the provisions of UAPA have been enacted by the Parliament which had the legislative competence to enact the same and that once it is clear that the Parliament had the legislative competence to enact the law, there is a presumption of constitutionality in favour of the[भाग II—खण् ड 3(ii)] भारत का रािपत्र : असाधारण 27 statute. Learned Addl. SG submitted that an organization can be banned solely based on the opinion of the Central Government and, therefore, the challenge to Chapter II of UAPA has already been repelled by the Hon'ble Supreme Court in paras 84 -92 of Arup Bhuyan v. State of Assam (2023) 8 SCC 745. In para 90 of this judgment, the Hon'ble Supreme Court held as under: “90. Thus from the aforesaid it can be seen that before any organization is declared unlawful a detailed procedure is required to be followed including the wide publicity and even the right to a member of such association to represent before the Tribunal. As observed hereinabove the notification issued by the Central Government declaring a particular association unlawful, the same is subject to inquiry and approval by the Tribunal as per Section 4. Once that is done and despite that a person who is a member of such unlawful association continues to be a member of such unlawful association then he has to face the consequences and is subjected to the penal provisions as provided under Section 10 more particularly Section 10(a)(i) of the UAPA, 1967.” 107. Ld. Addl. SG submitted that from the aforesaid discussion of the Supreme Court, it is clear that an organization can be banned solely on the basis of the opinion of the Central Government and through the process duly established by the law enacted by the Parliament. 108. On the aspect of standard of proof required for assessing the sufficiency of grounds for declaring an association as unlawful, ld. Addl. SG submitted that the proceedings before this Tribunal are civil in nature and the standard of proof is the standard prescribed by the Supreme Court in Jamaat-e-Islami Hind (supra). The Reference has to be answered by objectively examining which version is more acceptable and credible. In this regard, learned Addl. SG has referred to the observation made in para 30 of the judgment delivered in Jamaat-e-Islami Hind (supra). Learned Addl. SG also argued that the procedure to be followed by the Tribunals can be read from the law enacted under the Administrative Tribunals Act, 1985. Learned ASG then submitted that similarly the Tribunal established under the UAPA has been bestowed with certain powers and the procedure to be adopted by it under Section 5 read with Section 9 of the said Act. 109. Ld. Addl. SG further submitted that as per the mandate of Section 4 of the UAPA, the jurisdiction of this Tribunal is to adjudicate whether or not there is sufficient cause available with the Central Government to ban the organization in question. Learned Addl. SG explained that any procedural irregularities or defects in the material adduced before this Tribunal are to be tested by the concerned trial court within the parameters of the Indian Evidence Act, 1872 and other relevant laws. Learned Addl. SG further argued that the jurisdiction of this Tribunal is to satisfy itself whether these documents can be relied upon to ascertain ‘sufficiency of cause’ and whether the agencies responsible for the enforcement of law and order could or could not have ignored the same for recommending suitable action under the UAPA. 110. Ld. Addl. SG added that for the purpose of assessing the sufficiency of the cause, this Tribunal has to holistically look into the entire material and if the material is relatable to acts of commission of ‘unlawful activity’, ‘secession’ or ‘cession of a part of the territory of India’, on the anvil of preponderance of probability, then the ban is justified and is required to be confirmed. Ld. Addl. SG submitted that the Central Government has led cogent material and evidence to demonstrate that there was sufficient material available with the Central Government to form an opinion that MCJK (Bhat), its leaders and associates were indulging in unlawful activities. Ld. ASG submitted that the law does not require that the cases which should form the basis of opinion formed by the Central Government should be proximate to the date of the decision or there should be ‘X’ number of cases to prove an association to be an unlawful association; and that even one case may be sufficient. Learned ASG has submitted that the delay in the investigation will have no bearing in the present proceedings as the degree of evidence required before this Tribunal and the adjudication thereon is to be based on the principles of preponderance of probabilities. 111. Ld. ASG has further submitted that the evidence adduced by the Central Government has not been refuted on any ground whatsoever, and as such, in view of non-rebuttal of the evidence adduced by the Central Government by any member / erstwhile member of the MCJK (Bhat) opposing the ban, the Notification no. S.O. 934(E) published in the Gazette of India, Extraordinary, dated 28th February, 2024, declaring the Muslim Conference Jammu and Kashmir (Bhat) as an ‘unlawful association’ under sub-Section (1) of Section 3 of the Unlawful Activities (Prevention) Act, 1967 is liable to be confirmed. 112. As regards the hostile environment prevailing in the territory of Jammu & Kashmir creating hurdles in conclusion of cases against the separatist and militants, the ld. Addl. SG submitted that as has been stated in the testimonies of various witnesses, the delay in the investigation and trial has occurred due to extremely hostile environment which prevailed in the erstwhile State of Jammu and Kashmir. Ld. Addl. SG submitted that it is a matter of public knowledge that since last more than three decades, the erstwhile State of Jammu and Kashmir has been adversely affected by the acts and deeds of the Separatist groups and its leaders. Ld. Addl. SG further submitted that from 1989 to 2016 the situation in the erstwhile State of Jammu and Kashmir remained volatile and disturbed due to the circumstances created by terrorist groups camouflaged as Separatist Groups/Political Parties or self-styled political leaders who instigated and provoked the general public at large against the lawfully established governments with the help of foreign state and non-state actors having interests inimical to the interest of the country. Ld. ASG has28 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] submitted that these facts have been referred to in the concurring opinion of Hon’ble Justice Sanjay Kishan Kaul in para-31 and Epilogue recorded in para 113-135 in the judgment Re:Article 370 of the Constitution, reported in 2023 SCC Online SC 1647. 113. Ld. Addl. SG submitted that the separatist leaders and their activists had created such terror in the minds of public that the general public, which even did not support their cause, feared to oppose them or to report to the police against various incidents and even feared to depose or give evidence against the said separatist leaders, thus, leading to a non-cooperative atmosphere for the police investigating agencies in the cases registered against the said separatist organizations or its leaders. Ld. Addl. SG also submitted that the investigation further slowed thereafter due to COVID which had brought all the routine activities to a standstill as a complete lockdown in the entire nation was imposed. Hence, the investigation in the cases registered against the MCJK (Bhat) in the State of Jammu & Kashmir could not be investigated at the pace it should have been. 114. Ld. Addl. SG submitted that despite several FIRs having been lodged against the members of the MCJK (Bhat), its activists / sympathizers are still active and are indulging in unlawful/anti-national activities as defined in the UAPA, posing a serious threat to the sovereignty and integrity of India, communal harmony, and internal security. 115. Learned Addl. SG highlighted that if MCJK (Bhat) is not banned, the activists and sympathizers of MCJK (Bhat) will pose a serious threat to the communal harmony, internal security and integrity of the country. 116. Lastly, ld. ASG has submitted that the notification no. S.O. 934(E) dt. February 28th, 2024, issued by the Central Government declaring the MCJK (Bhat) as an ‘unlawful association’ is based on the information and material received from the State Government of Jammu and Kashmir and the various intelligence agencies, with regard to the unlawful activities of MCJK (Bhat) and is liable to be confirmed. IX. ANALYSIS AND CONCLUSION 117. Before returning a finding on whether or not sufficient grounds exist which would justify the ban imposed on MCJK (Bhat), it is important to first decide the claim of privilege raised by the Central Govt. in regard to the sealed cover documents since the information contained in those documents will have a significant bearing on the aspect of existence of ‘sufficient grounds’ for banning the said organization. 118. The issue regarding privilege which has been claimed by the Central Government in respect of the sealed cover documents, disclosure whereof is injurious to public interest, is specifically envisaged in the UAP Rules, 1968. Rule 3 of the said UAP Rules, is in the following terms: “3. Tribunal and District Judge to follow rules of evidence.—(1) In holding an enquiry 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 Indian Evidence Act, 1872 (1 of 1872). (2) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), where any books of account 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 other documents are claimed by that Government to be 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 records of the proceedings before it; or (b) allow inspection of, or grant a copy of, the whole of or any extract from, such books of account or other documents by or to any person other than a party to the proceedings before it.” 119. It can be seen that the Rule 3 (2) starts with a non-obstante clause providing that notwithstanding anything contained in the Indian Evidence Act, 1872, where any books of account or other documents are sought to be produced by the Central Government and these documents are claimed to be of a confidential nature, then the Tribunal shall not make such documents a part of the records of the proceedings before it or allow inspection of or grant a copy of the same to any person other than the parties to the proceedings before it. 120. Rule 5 of the UAP Rules which provides for the documents which should accompany a reference to the Tribunal i.e. a copy of the notification and all facts on which grounds specified in the notification are based, further provides that nothing in the said Rule shall require the Central Government to disclose any fact to the Tribunal which it considers against public interest to disclose. The said rule is in the following terms: “5. Documents which should accompany a reference to the Tribunal. – Every reference made to the Tribunal under sub-section (1) of Section 4 shall be accompanied by – (i) a copy of the notification made under sub-section (1) of Section 3, and (ii) all the facts on which the grounds specified in the said notification are based:[भाग II—खण् ड 3(ii)] भारत का रािपत्र : असाधारण 29 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.” 121. The aforementioned provisions and the requirement of maintaining confidentiality of certain documents specifically came to be considered by the Supreme Court in the case of Jamaat-e-Islami Hind (supra), wherein it was held as under: “22. It is obvious that the unlawful activities of an association may quite often be clandestine in nature and, therefore, the source of evidence of the unlawful activities may require continued confidentiality in public interest. In such a situation, disclosure of the source of such information, and, may be, also full particulars thereof, is likely to be against the public interest. The scheme of the Act and the procedure for inquiry indicated by the Rules framed thereunder provide for maintenance of confidentiality, whenever required in public interest. However, the non-disclosure of sensitive information and evidence to the association and its office-bearers, whenever justified in public interest, does not necessarily imply its non-disclosure to the Tribunal as well. In such cases where the Tribunal is satisfied that non-disclosure of such information to the association or its office-bearers is in public interest, it may permit its non-disclosure to the association or its office-bearers, but in order to perform its task of adjudication as required by the Act, the Tribunal can look into the same for the purpose of assessing the credibility of the information and satisfying itself that it can safely act on the same. In such a situation, the Tribunal can devise a suitable procedure whereby it can itself examine and test the credibility of such material before it decides to accept the same for determining the existence of sufficient cause for declaring the association to be unlawful. The materials need not be confined only to legal evidence in the strict sense. Such a procedure would ensure that the 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 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 by mere acceptance of the opinion already formed by the Central Government. 23. In John J. Morrissey and G. Donald Booher v. Lou B. Brewer the United States Supreme Court, in a case of parole revocation, indicated the minimum requirements to be followed, as under: (L Ed pp. 498-99) “Our task is limited to deciding the minimum requirements of due process. They include (a) written notice 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 good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. We emphasise there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is 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.” 24. In Paul Ivan Birzon v. Edward S. King placing reliance on Morrissey, while dealing with a similar situation, when confidential information had to be acted on, it was indicated that the 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 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 statements 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 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 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 and his witnesses. Similarly, the board could then have made its own decision about how realistic were the claims of potential danger to the informants or to State parole officers if their identity was disclosed, instead of placing exclusive reliance on the State report. Thus, we hold that, in relying exclusively on the30 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] written synopsis in the State report, which was the only 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 process of law.” 25. Such a modified procedure while ensuring confidentiality of such information and its source, in public interest, also enables the adjudicating authority to test the credibility of the confidential information for the purpose of deciding whether it has to be preferred to the conflicting evidence of the other side. This modified procedure satisfies the minimum requirements of natural justice and also retains the basic element of an adjudicatory process which involves objective determination of the factual basis of the action taken. 26. 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 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 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 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, if the public interest so requires. 27. 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 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 requirement of natural justice and judicial scrutiny. The decision would then be that of the Tribunal itself.” 122. The High Court of Andhra Pradesh in Deendar Anjuman v. Government of India, 2001 SCC OnLine AP 663 after applying the test laid down in Jamaat-e-Islami Hind (supra) upheld the ban imposed and further held that the entire material available on record itself need not be published or made available to the aggrieved person but what is required is disclosure of reasons and the grounds. Relevant extract of the said judgment is as under: “19. The expression “for reasons to be stated in writing” did not necessarily mean that the entire material available on record itself is to be published or made available to the aggrieved person. What is required is disclosure of reasons. The grounds must be disclosed. The notification issued under sub-section (1) of Section 3 alone is required to be referred to the Tribunal “for the purpose of adjudicating whether or not there is sufficient cause for declaring the association unlawful.” The Tribunal after such reference is required to issue notice to the affected association to show cause, why the association should not be declared unlawful. The Tribunal is required to hold an enquiry 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 the association and then decide whether or not there is sufficient cause for declaring the association to be unlawful. The Tribunal is require “to adjudicate whether or not there is sufficient cause for declaring the association unlawful.” As held by the Supreme Court in Jamaat-e-Islami Hind v. Union of India the Tribunal is required to weigh the material on which the notification under sub-section (1) of Sec. 3 is issued by the Central Government after taking into account the cause shown by the Association in reply to the notice issued to it and by taking into consideration such further information which it may call for, to decide the existence of sufficient cause for declaring the action to be unlawful. The Tribunal is required to objectively determine the points in controversy. The Supreme Court further held that subject to non-disclosure of information which the Central Government considers to be against the public interest to disclose, all information and evidence relied on by the Central Government to support the declaration made by it of an association to be unlawful, has to be disclosed to the association to enable it to show cause against the same. The Tribunal is entitled to ascertain the credibility of conflicting evidence relating to the points in controversy. It is observed by the Supreme Court: “To satisfy the minimum requirements of a proper adjudication, it is necessary that the Tribunal[भाग II—खण् ड 3(ii)] भारत का रािपत्र : असाधारण 31 should have the means to ascertain the credibility of conflicting evidence relating to the points in controversy. Unless such a means is available to the Tribunal to determine the credibility of the material before it, it cannot choose between conflicting material and decide which one to prefer and accept. In such a situation, the only option to it would be to accept the opinion of the Central Government, without any means to test the credibility of the material on which it is based. The adjudication made would cease to be an objective determination and be meaningless, equating the process with mere acceptance of the ipse dixit of the Central Government. The requirement of adjudication by the Tribunal contemplated under the Act does not permit abdication of its function by the Tribunal to the Central Government providing merely its stamp of approval to the opinion of the Central Government. The procedure to be followed by the Tribunal must, therefore, be such which enables the Tribunal to itself assess the credibility of conflicting material on any point in controversy and evolve a process by which it can decide whether to accept the version of the Central Government or to reject it in the light of the other view asserted by the association. The difficulty in this sphere is likely to arise in relation to the evidence of material in respect of which the Central Government claims nondisclosure on the ground of public interest.” 20. It is, therefore, evident that disclosure of all the facts and material available on record subject to the claim of any privilege in this regard by the Central Government is only after the reference of the notification issued under sub-section (1) of Section 3 of the Act to the Tribunal for the purpose of adjudication whether or not there is sufficient cause for declaring the association unlawful. The material available on record may have to be revealed to the association or its members. In a case wherever any privilege is claimed, the Tribunal has to examine the material itself in the manner it considers appropriate, to assess its credibility without disclosing the same to the association. Therefore, there is no requirement to disclose the material itself and publish the same in the notification or provide to the association along with the notification issued in exercise of the power under proviso to sub-section (3) of Section 3 declaring the association to be unlawful with immediate effect. The requirement is disclosure of additional reasons and grounds and not the material. The notification issued in exercise of the power under proviso to sub-sec. (3) of Section 3 cannot be set aside on the ground that the material relied upon for stating the reasons is not communicated to the association concerned declaring it to be an unlawful association with immediate effect. Such notification would become vulnerable only when the reasons are not notified: The record should contain the reasons in writing and the same is required to be revealed and published in the notification or communicated to the association concerned. Such reasons are required to be distinct and different and cannot be the same for imposing ban under Section 3 of the Act. The reasons are required to be communicated but not the entire material. Disclosure of the material is only after reference of the notification issued under Section 3 of the Act to the Tribunal.” 123. The legal position which thus emerges can be succinctly put in the following terms: i. The scheme of the Act and the procedure for inquiry indicated by the Rules framed thereunder contemplates maintenance of confidentiality whenever required in public interest; ii. The Tribunal can look into the confidential material without the same being disclosed to the Association or its office-bearers, for the purpose of assessing the credibility of the information and satisfying itself that the same is reliable; iii. The Tribunal can devise a suitable procedure for itself for examining and testing the credibility of such material; and iv. The requirement of natural justice can be suitably modified by the Tribunal in the manner it considers appropriate for the purpose of assessing/examining the confidential material/documents, and arriving at a conclusion based on a perusal thereof. 124. Further, the rigors prescribed by the Supreme Court in the case of S.P. Gupta (supra) have to be read in the context of the provisions of the UAPA and the Rules framed thereunder. In particular, it needs to be borne in mind that Rule 3(1) of the UAP Rules, 1968 expressly provides that in holding any inquiry under Sub-Section (3) of Section 4 of the UAPA, the Tribunal shall follow “as far as practicable”, the rules of evidence laid down in the Indian Evidence Act. Thus, the rigors that have been contemplated in the context of Section 123 of the Indian Evidence Act, cannot ipso-facto be made applicable to these proceedings. The legislative intent in making the provisions of the Evidence Act applicable only “as far as practicable” is evident from the nature of these proceedings. The proceedings before this Tribunal do not contemplate a full-fledged trial; rather the proceedings are in the nature of an “inquiry” as referred to in Section 4(3). 125. Further, the present proceedings are time-bound and as has been laid down by the Hon’ble Supreme Court in the case of Jamaat-e-Islami Hind (supra), an appropriate procedure has to be devised/tailored by this Tribunal for the purpose of its inquiry. As such, any claim seeking privilege has to be assessed in terms of the in-built mechanism as provided under the UAPA and the Rules framed thereunder, and the Tribunal is mandated to grant privilege from disclosure where it finds that the disclosure would be against/injurious to public interest. Thus, the nature of the documents has to be assessed by the Tribunal to see whether it contains any sensitive information, disclosure of which32 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] would be against public interest. 126. On perusal of the documents submitted by the Central Government in a sealed cover, it is found that the same contains intelligence reports, secret information collected from time to time by the investigating and intelligence agencies, notes/memos prepared by the investigating and intelligence agencies, information revealed on investigation including information as to the clandestine nature of the activities of the concerned association and its office-bearers and linkage of the association and its office-bearers with organizations and individuals outside of India which are inimical to the Indian interests. 127. This Tribunal finds from the perusal of these documents that the disclosure of these documents would be detrimental to the larger public interest and security of the State. One of the documents which is contained in the sealed cover, is a note prepared for consideration of the Cabinet Committee on Security, which contains sensitive information about activities of the banned association and its inimical impact on national security. Clearly, the nature of these documents is such that it would be in public interest and in the interest of the security of the State to maintain confidentiality as regard thereto. 128. It may also be noted that the claim for privilege has been expressly stated by the concerned witness from the Ministry of Home Affairs (PW - 5) to be based on a specific approval/direction of the Union Home Secretary (Head of the Department). The said position is also borne out from the relevant official/noting files shared with this Tribunal. 129. In the circumstances, this Tribunal allows the claim for privilege in respect of the documents submitted in a sealed cover by the concerned witness from the Ministry of Home Affairs. Consequently, the Tribunal has proceeded to peruse the said documents, as contemplated in the judgment of the Supreme Court in Jamaat-e-Islami Hind (supra) and to assess the credibility thereof and the implications flowing therefrom for the purpose of the present inquiry. 130. On the basis of the material placed on record and the evidence adduced by the Central Government, this Tribunal finds sufficient cause for declaring the Muslim Conference Jammu and Kashmir (Bhat) as an unlawful association which conclusion is drawn for the following reasons. 131. The notification dated 28th February, 2024 issued under Section 3(1) of the Act inter alia mentions that (i) the members of the MCJK (Bhat) have been at the fore-front of the secessionist activities in Jammu and Kashmir; (ii) the leaders or members of the MCJK (Bhat) have been involved in raising funds through various sources including those in Pakistan for promoting unlawful activities, including supporting terrorist activities; (iii) MCJK (Bhat) and its members have scant respect towards the constitutional authority and constitutional set-up of the country; (iv) MCJK (Bhat) and its leaders or members, have been indulging in unlawful activities, which are prejudicial to the integrity, sovereignty, security and communal harmony of the country; and (v) there are linkages between MCJK (Bhat) with banned terrorist organizations. 132. The above grounds/justification cited in the notification issued under Section 3(1) of the Act are borne out from the extensive evidence adduced by the Central Government. The said evidence can be broadly categorized into 2 categories: v. Evidence adduced by officers (senior police officers) from Union Territory of Jammu and Kashmir; vi. Evidence in the form of documents/material submitted in a sealed cover before this Tribunal. Evidence adduced by officers from the Union Territory of Jammu and Kashmir 133. As many as 4 senior police officers from the Union Territory of Jammu and Kashmir (PW1 to PW4) have deposed as regards the litany of incidents involving MCJK (Bhat) since the past several decades. The same clearly brings out that the concerned association has been relentlessly indulging in “unlawful activities”. 134. The incidents with regard to which voluminous evidence has been adduced, inter alia involves: i. raising anti-India and pro-Pakistan slogans (evidence of PW-1, PW-2, PW-3, PW-4); ii. encouraging boycott of elections and openly professing dis-allegiance towards the Constitution of India (evidence of PW-1, PW-2, PW-2, PW-3, PW-4); iii. inciting the people of Jammu and Kashmir to take resort to violence/pelting of stones on security forces (evidence of PW-1, PW-2, PW-3, PW-4); iv. undermining the sovereignty and territorial integrity of India and professing affection towards Pakistan by making hate speeches (evidence of PW-1, PW-2, PW-3, PW-4); v. instigating the general public intending to cause disaffection against India (evidence of PW-1, PW- 2, PW-3, PW-4); 135. On a cumulative consideration of the various incidents/activities which are the subject matter of the various[भाग II—खण् ड 3(ii)] भारत का रािपत्र : असाधारण 33 FIRs with regard to which the aforesaid evidence has been led, it is evident that MCJK (Bhat) has been indulging in “unlawful activities” and has posed a grave threat to the law and order situation in Jammu and Kashmir continuously since the last several years. 136. Although it is true that the investigation in most of the FIRs (with regard to which PW-1 to PW- 4 have deposed) has been protracted, learned Addl. SG of Union of India has sought to emphasize that the same was on account of hostile environment prevailing in the Territory of Jammu and Kashmir over a long period of time. However, what is of relevance to this Tribunal is the clear pattern that is discernible as regards the nature of activities of the concerned association and its office bearers. The pattern of conduct is to incessantly encourage secession of the State of Jammu and Kashmir, questioning or seeking to disrupt the sovereignty and territorial integrity of India, inciting the people of Jammu and Kashmir to take resort to violence/pelting of stones etc., and to disrupt peace in the region of Jammu and Kashmir. These activities continued unabated for a long period of time; and it is only in the last few years (post enactment of the Jammu & Kashmir Re-Organisation Act, 2019) that there has been a lull in the anti- national activities in Jammu & Kashmir, as is evident from the reduced instances of violence/disruption of law and order. 137. This Tribunal also takes note of the fact that each of the senior police officers from the State of Jammu and Kashmir, who have deposed before this Tribunal, during the course of their examination, strenuously emphasized from their own personal knowledge derived during the course of discharge of their official functions that the MCJK (Bhat) i.e. its chairman, other leaders and members have been: a. incessantly encouraging and have been actively and continuously advocating claims for secession of Jammu and Kashmir from the Union of India and have been inciting the local population; b. promoting anti-national and separatist sentiments prejudicial to the integrity and security of the country; c. tacitly and tactically supporting militancy and incitement of violence in the territory of Jammu and Kashmir on religious lines and have sought to escalate the separatist movement. 138. The compelling testimony of officers from Jammu and Kashmir cannot be disregarded. The aforesaid evidence remains unrebutted by the MCJK (Bhat)/ its office bearers. At every stage of these proceedings, a right was afforded to the MCJK (Bhat)/its members and any other interested party in the matter to appear before this Tribunal and cross-examine the concerned officers who have deposed before this Tribunal. However, the said opportunity has not been availed. 139. This Tribunal is conscious that the veracity of the contents of the aforesaid chargesheet/s filed in the abovementioned criminal cases which have been registered against the MCJK (Bhat), is required to be established at trial in the said cases but the scope of scrutiny of the material cited by the Central Government (which is the subject matter of present Reference) is not akin to a criminal trial, as has been held in para 26 of Jamaat-e-Islami Hind (supra). For the purpose of these proceedings, the evidence adduced is in the nature of relevant material and liable to be considered, in terms of the dicta laid down by the Supreme Court in Khatri (supra) and Jamaat-e-Islami Hind (supra). As mandated in terms of the judgment of the Supreme Court in Jamaat-e-Islami Hind (supra), this Tribunal has examined the material cited by the Central Government for the purpose of making an “objective assessment” for the purpose of these proceedings and to assess whether the same supports the declaration made under Section 3(1) of UAPA vide the notification dated 28th February, 2024. Evidence in the form of documents/material submitted in a sealed cover before this Tribunal 140. As noted hereinabove, the documents submitted by the witness (PW 5) who has deposed on behalf of the Central Government, inter alia, includes reports of intelligence agencies, the note prepared for the Cabinet Committee on Security setting out the entire background of MCJK (Bhat) which has been banned and its activities based on the information collated by the intelligence agencies and also bringing out linkage of MCJK (Bhat) with cross-border agencies/establishments, and finally from inputs received from Criminal Investigation Department, Jammu and Kashmir (Srinagar). 141. A perusal of the said documents has brought out in vivid detail the terrorist and secessionist activities of the MCJK (Bhat) in close coordination with inimical elements in Pakistan. The systematic attempts to promote secession of Jammu and Kashmir from the territory of India, to undermine the sovereignty of India, to incite the local populace and to promote violence have been brought out in the said material/documents. CONCLUSION 142. From the elaborate material/evidence placed on record in these proceedings, this Tribunal finds that there is34 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)] ample justification to uphold the ban on the MCJK (Bhat) and uphold the declaration of the MCJK (Bhat) as being an ‘unlawful association’, under the UAPA. Moreover, given the nature of activities of MCJK (Bhat), the Central Government was justified in taking recourse to the proviso to section 3 (3) of the UAPA. As noticed hereinabove, the activities of the concerned association have had an adverse effect on maintenance of law and order in the region of Jammu and Kashmir over the last several decades. The measure of stability that has come about after 2019 (as is evident from the reduced number of unconducive incidents) cannot be allowed to be jeopardized on account of continuing activities of the concerned association i.e. MCJK (Bhat). 143. In the framework of the Indian Constitution and the UAPA, there is no space for an association like the MCJK (Bhat) which openly propagates secessionism, avowedly express dis-allegiance to the Constitution of India, and undermines the territorial integrity and sovereignty of India. 144. Thus, this Tribunal having followed the procedure laid down in the Unlawful Activities Prevention Act, 1967 and its Rules and having independently and objectively appreciated and evaluated the material and evidence on record, is of the firm and considered view that there is sufficient cause for declaring the MCJK (Bhat) as an unlawful association under Section 3(1) of the UAPA, 1967, vide the notification dt. 28th February, 2024. Thus, an order is passed under Section 4 (3) of the UAPA, 1967 confirming the declaration made in the notification bearing no. S.O. 934 (E) published in the official gazette on 28th February, 2024 issued under Section 3 (1) of the Unlawful Activities Prevention Act, 1967. (JUSTICE NEENA BANSAL KRISHNA) UNLAWFUL ACTIVITIES (PREVENTION) TRIBUNAL August 23rd, 2024” [F. No.14017/51/2024-NI-MFO] ABHIJIT SINHA, Jt. Secy. Uploaded by Dte. of Printing at Government of India Press, Ring Road, Mayapuri, New Delhi-110064 and Published by the Controller of Publications, Delhi-110054.