A Judge Stirs A Hornet's Nest

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SHORTLY AFTER the 9 pm news began rolling out on major television networks on August 5, 2008, “sources” in the Union Home Ministry quietly let out that Delhi High Court judge Geeta Mittal had rejected the Centre’s ban on the Students’ Islamic Movement of India (SIMI) citing insufficient evidence to connect the group with unlawful activities as alleged by the Centre.
Media reports said that the tribunal judge had sent her report in a sealed cover to the Union Home Ministry. Certainly, her order had not been pronounced in an open court. Even the legal team that had contested the ban on behalf of SIMI’s ex-president, Shahid Badr Falahi, had heard of judge Mittal’s decision — certainly very welcome to them — only from the television networks.
Yet, the next day, on August 6, while the fact of the order having been passed had still not been communicated to either Falahi or his lawyers, Additional Solicitor General (ASG) Gopal Subramaniam appeared before Supreme Court Chief Justice KG Balakrishnan and sought a stay on the order of the tribunal — and got the order he wanted. The Supreme Court immediately stayed the order of the tribunal and ruled that the ban on SIMI will continue for at least three more weeks. The apex court also issued notices to SIMI asking it why the ban against it should not be maintained.
“The Supreme Court’s stay on the tribunal’s order is a murder of justice,” Falahi told TEHELKA (see interview on page 43). Falahi certainly has reason to feel the Supreme Court is being unfair to him on the matter. As per the provisions of the Unlawful Activities (Prevention) Act 1967, under which SIMI was banned, a tribunal headed by a sitting high court judge has to be constituted within 30 days from the day the ban is notified, “for the purpose of adjudicating whether or not there is sufficient cause for declaring the association unlawful”. The law also clearly stipulates that such a tribunal must declare its finding “within a period of six months from the date of the issue of the notification” banning the organisation. (As the last ban was imposed on February 7 this year, Judge Mittal’s report was due no later than August 6.)
SIMI was banned thrice before in 2001, 2003 and 2006. Each time, a new tribunal was constituted. Each tribunal returned its finding in favour of the government, upholding its ban on SIMI. Each time, Falahi appealed before the Supreme Court against the tribunal’s decision. While the Supreme Court showed great alacrity on August 6 in responding to the Centre’s plea to stay Judge Mittal’s order, it hasn’t taken up any of Falahi’s three appeals in all these years. Fundamentally, there should be no difference in the legal status of Falahi’s appeals and that of the Centre’s appeal before the Supreme Court. After all, both were equal parties before the four tribunals. Every time, the party that got an adverse order approached the apex court, but were not granted a hearing.
In any case, the government’s move to seek a stay from the Supreme Court also compromised Falahi’s legal rights in another way.
As per practice, as soon as a party gets an order in its favour from one court, it has the option to file a caveat in the court, to which an appeal would lie, asking that no orders should be passed in the matter on appeal without intimation to it. However, if Falahi wanted to file such a caveat he would be required to clearly set down the date of the order that was given in his favour. But because Falahi hadn’t received any official intimation on Judge Mittal’s order, he was in no position to even comply with the formalities that the Supreme Court registry would have insisted upon if his caveat was to be entertained.