THE GAZETTE OF INDIA EXTRAORDINARY

[PARTII—SKC. 3(ii)l

MINISTRY OF HOME AFFAIRS

NOTIFICATION

New Delhi, the 8th April, 2002

S.O. 397(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), declared on the 27th September, 2001 the

Students Islamic Movement of Inida (SIMI) as an unlawful association vide notification of the Government of Inida

in the Ministry of Home Affairs number SO. 960(E), dated the 27th September, 2001;

And whereas, the Central Government, in exercise of the powers conferred by sub-section (1) of section 5 of

the said Act, constituted on the 8th October, 2001 the Unlawful Activities (Prevention) Tribunal consisting of Mr.

Justice S.K. Agarwal, Judge of the Delhi High Court vide notification of the Government of India in the Ministry of

Home Affairs number S.O. 1005(E), dated the 8th October, 2001;

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 the 20th October, 2001 for the purpose of adjudi-

cating whether or not there was sufficient cause for declaring the said association 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, made an Order oh the 26th March, 2002, confirming the declaration made in the notification number

S.O.960(E) dated the 27th September, 2001;

Now, therefore, in pursuance of sub-section (4) of section 4 of the said Act, the Central Government hereby

publishes the said Order of the said Tribunal, namely :—

The Unlawful Activities (Prevention) Tribunal, New Delhi.

In Re: Students Islamic Movement of India

Union of India (Central Government)/petitioner

through :

Mr. K.K. Sud, Additional Solicitor General with Mr. Mahipal, Mr. R.V. Sinha and Mr Neeraj Jain,

Advocates.

versus

Students Islamic Movement of India—

Respondent No. 1.

through :

Mr, Sidharth Luthra, Advocate with Mr. Manish Goel, Mr. S.N. Vashist, Mr. K B.S. Nalwa,

Advocates.

State of Maharashtra—Respondent No. 2.

through :

Ms. Shubhangi Tuli, Advocate,

State of Kerala—Respondent No. 3

through :

Mr, Ramesh Babu M. R., Advocate,

State of M.P. —Respondent No. 4.

through :

Mr B.S. Banthia and Mr. T.S. Chaudhary, Advocates

State of Tamil Nadu—Respondent No. 5.

through :

Mrs. Revathy Raghavan and Ms. Shweta Garg, Advocates.

State of West Bengal—Respondent No. 6.

through :

Mr. Tara Chandra Sharma, Advocate.

State of Gujarat —Respondent No. 7.

through :

Mrs. Hcmantikawahi with Ms. Anu Sawhney, Advocates.

State of Rajasthan—Respondent No. 8.

through •

Ms. Shubhangi Tuli, Advocate.

State of Andhra Pradesh—Respondent No. 9.

through :

Mr G Prabhakar, Advocate

Coram:

Hon'bleMr Justice S.K. Agarwal

ORDER

This order will answer the reference under Section 4 (1) of the Unlawful Activities (Prevent

(hereinafter referred to as 'the Act¹).

The Central Government vide notification No. SO. 960 (E) dated 27-9-2001, in exercise of the powers con-

ferred under sub-section (1) of Section 3 of the Act, declared Students Islamic Movement of India (hereinafter for

short referred to as 'SIMI') to be an unlawful association.

Under proviso to sub-section (3)

of the Act, the Central Government also declared the said association to be unlawful with immediate effect, as in its

opinion the circumstances so warranted. The Central Government by another notification No. S.O. 961(E) dated

8-10-2001, under sub-section (1) of Section 5 of the Act, constituted this Tribunal, and made the reference under

Section 4(1) of the Act for adjudicating whether or not there is sufficient cause for declaring the said association

unlawful. The notification was accompanied by a resume of facts and grounds on the basis of which the said

notification was issued, as required by rule 5 of the Unlawful Activities (Prevention) Rules, 1968 (hereinafter referred

to as "the Rules").

On receipt of reference, notices were issued, calling upon the SIMI to show cause within 30 days from the

date of service of notice, as to why it should not be declared unlawful The notices were directed to be served by

ordinary process as well as by publication in the national and local newspapers and by pasting on notice board of

the offices of District Magistrates and Tchsildars SIMI entered appearance through its All India President, Shahid

Badar. States of Maharashtra, Kerala, Madhya Pradesh, Tamil Nadu, West Bengal, Gujarat, Andhra Pradesh, Rajasthan,

Uttar Pradesh and Delhi also entered appearance and supported the notification declaring SIMI to be unlawful. For

the purpose of reference. Central Government was arrayed as the petitioner and SIMI as respondent No. 1 and other

States were arrayed as respondents 2 to 11

Parties were directed to file their written statements along with the documents on which they proposed to

rely. Learned counsel of Union of India made the statement that the Background Note and documents filed along

with the notification be treated as their statement. SIMI-respondcnt No. 1 filed the written statement/objections,

through its President, to which a rejoinder was filed by the UOI.

The case set-up by the Central Government in brief is that SIMI came into existence on 25-4-1977 in the

Aligarh Muslim University as a front organisation of youth and students having faith in Jamait-e-Islami-HiM

(JEIH). It declared itself independent in the year 1993 with the following proclaimed objectives :—

Governing of human life on the basis of Quran ,

Propagation of Islam ;

THE GAZETTE OF INDIA: EXTRAORDINARY

[PART U.—SEC. 3(ii)]

Jehaad (religious war) for the cause of Islam ;

Destruction of Nationalism and establishment of Islamic Rule or Caliphate.

SIMI aims to utilize students and youths in the propagation of Islam religion and mobilise support

for 'Jehaad'. It aims at achieving Shariat based Islamic rule through 'Islamic Inqualab'.

It does not

believe in the nation state, therefore, it also does not believe in the constitution or the secular order. It

regards Idol worship as a sim and its holy duty to end such worship.

It is stated that SIMI organisation

has been indulging in anti-national, militant and objectionable activities and is known to have launched a country-

wide campaign since November 1996 to mobilize support for the caliphate (Rule of Islam) for Muslim community. It

advocates self-determination in Jammu and Kashmir and is in close touch with the militant outfits in Jammu and

Kashmir, including pro-Pak Hizb-ul-Muzahideen (Hum) and Jammu and Kashmir Liberation Front. The leadership of

SIMI also extended full support to Punjab extremists and Jammu and Kashmir insurgents.

Further, it is stated that SIMI is closely associated with Al-Ummah, All India Jehad Committee (AIJC) and

Tamil Nadu Muslim Munnetra Kazagham (TMMK) in Tamil Nadu and is also involved in various militant activities

relating to killing of Hindus, especially persons associated with RSS/Hindu organizations, since August, 1993. Its

anti-national posture was exposed by its pro-Pak stand on the issue of Kargil. During the Kargil crisis, SIMI

leaders, contrary to the views of most other Muslim leaders and organizations who had supported the Indian

Government's actions including the air strikes, had adopted an anti-India posture. The contentions of SIMI on the

Kargil issue were that: it were the Kashmiri 'freedom fighters' who had been lighting the Indian Army in Kargil, and

not the Pakistan Army or Pakistani nationals as claimed by the Government. The Indian Army was engaged in

barbaric torture of Muslims in Kargil, including Muslim women, on the pretext of fighting the infiltrators.

It is pleaded that in the Ikhwan Conferences at Kanpur, Aurangabad and Malappuram, the anti-national and

militant posture of SIMI was manifest in the speeches of its leaders and the conduct of different programmes. SIMI

leaders, in their addresses, eulogized and glorified Pan-Islamic terrorists and fundamentalists like Osama Bin Laden,

Sheikh Mohd. Yasin (HAMAS leader) and Gulbudddin Hekmatyar

They used derogatory language for Hindu

Gods and Goddesses, and, exhorted Muslims for Jehad and martyrdom to counter atrocities on Muslims and to

establish the supremacy of Islam. Describing the concept of secularism, democracy and nationalism as anti-Islam,

the speakers gave a call to obey only the law of Allah and not man-made laws. Cassettes containing provocative and

fundamentalist speeches of Pan-Islamic leaders like Qazi Hussain (Pak JEI leader) and Sheikh Mohd. Yasin (HAMAS)

were played at the conference. In an in-camera meeting of selected SIMI leaders at Kanpur, it was decided to

promote militant, ideas among the Muslim students and youth, directed against Hinduism and establish clandestine

links with militant outfits like the Lashker-e-Toiba.

It is further pleaded that SIMI had published posters captioning the advant of a 'new Mahmood of Ghaznawi'

in the context of the Babri Masjid. The circulation of these posters has the potential of hurting the sentiments of

Hindus, polluting the minds of various religious groups and disturbing peace and communal harmony. As part of

their anti-India propaganda SIMI has also published a calendar containing distorted and misleading historical facts

about the-accession of Kashmir to India and giving an impression that Kashmiri Muslims had been suppressed and

exploited for long. SIMI has procured audio cassettes containing the speech of Mohd. Masood Azhar (Harkat-ul-

Mujahideen), who was released in exchange for the hostages of the Indian Airlines plane, in which Azhar exhorted

Muslims for "Jehad" tiil Kashmir is liberated. It is inter alia stated that in the State of Andhra Pradesh, Gujarat,

Madhya Pradesh, Maharashtra, Rajasthan, West Bengal, Tamil Nadu, Kerala, Uttar Pradesh and Delhi more than 100

cases have been registered against members of SIMI under various Sections of IPC/Cr. PC. The reasons for

banning SIMI with immediate effect are given as under :—

(a) SIMI is in close touch with militant outfits and is supporting extremism/militancy in Punjab, Jammu

and Kashmir and elsewhere ,

(b) SIMI supports claims for the secession of a part of the Indian territory from the Union, supports

groups fighting for this purpose, and is thus questioning the territorial integrity of India ;

(d) During Ikhwan conferences, the anti-national and militant postures of the SIMI were clearly manifest

in the speeches of the leaders who glorified Pan Islamic Fundamentalism, used derogatory language

for deities of other religions and exhorted Muslims for Jehad;

(e) S1MI has published objectionable posters and literature which are claculated to incite communal

feelings and which question the territorial integrity of India;

(f) SIMI is involved in engineering communal riots and disruptive activities in various parts of the

country ;

Respondent No. 1-SIMI, in their reply, have denied the allegations stating that these are mala fide, illegal,

unsustainable and without jurisdiction. It is claimed that SIMI organisation was founded on April 25, 1977 in

Aligarh by educated and enlightened citizens of India It is a Deeni (religious) secular organization and its activities

are a political and non-communal besides being spiritual and religious. It believes in unity of God and unity of

humankind. Till its ban, SIMI was connected only with lawful activities. The primary objective/aim of SIMI is to

guide the mankind and to provide a practical example of putting God's guidance into practice and reconstruction of

human life according to the guidance given by God. It believes in unity of God and unity of Human kind. Its main

function is upliftment of mankind and service of human beings by carrying out social service and by helping those

affected during natural or man made calamities, without distinguishing people on the basis of religion, caste, creed

or sex. It has its own written constitution and till its ban it was carrying on only lawful activities which were in

consonance with its aims and objectives.

It is pleaded that SIMI is an absolutely lawful and patriotic association working for the betterment of the

lives of the people, development of the society, unity, peace and prosperity and universal brotherhood. The

organization structure of SIMI is democratic and its working advisory in nature, It has a Central Representative

Council (CRC). This body, in turn, elects the President and the Central Advisory Committee. The Secretary General

of the Organization is appointed by the President in consultation with the Central Advisory Committee. There are

400 "Ansar" (basic members) and about 20,000 Ikhwans (ordinary members). Only persons of proven integrity,

good character and those imbibed with a spirit of sacrifice and service to humankind are enrolled as Ansars. The

maximum age limit of an Ansar is 30 years and after attaining the age of 30 years a parson ceases to be a member of

the organization both in the capacity of Ansar and that of Ikhwan. SIMI is therefore purely a student youth

organisation and is in no manner connected with or related to any of the allegations levelled against it. It is claimed

that the whole of the organisation cannot be blamed or banned just because a few members of the organisation were

allegedly working agaist the interest, aims and objectives of the organisation. Actions of such members cannot be

attributed to be the actions of the organisation. The organisation works through its resolutions and there is no

resolution that warrants the ban on the organisation.

It is further pleaded that SIMI is an organization of the minority community and should not be blacked out

unjustly as it will lead to panic based on minority discrimination. It is submitted that banning an organisation of a

minority community having only socio-religious aims is a clear violation of Articles 25 and 26 of the Constitution of

India. The activities of SIMI have always been open and lawful. There is no iota of secrecy or unlawfulness in the

activities of SIMI. There has been no occasion in the 25 years of SIMI's existence where any violence or even a

strife or disturbance has occurred in any part of the country as a result of any activity of SIMI. It has undertaken

several programs such as scholarships & career guidance to the needy students. The grounds spelt out in the

Notification for banning the organization fall short of mandatory conditions and that the ban is authoritarian and

bad in law. It is pleaded that the timing of the ban is actuated by the political motives and is not based on any legal

foundation. It was intended to create terror in the minds of minority Muslim community and an "anti national" image

out of ordinary Muslims in the country

It is further pleaded that SIMI had never challenged the territorial integrity of the country nor has it stated

anything which will incite communal violence in the country. The most outstadning contribution of SIMI has been

in the field of social service and in the field of relief work during natural and man made calamities. It undertook

extensive social work and provided relief to the victims of the earth quake in Gujarat without discrimination between

people of various religions. It is denied that SIMI is in close touch with militant outfits and is supporting extremism

in Punjab, Jammu and Kashmir and elsewhere. It is claimed that SIMI believes in an International Islamic Order just

as the socialists have an International Socialists Order as their aim. It was pleaded that any citizen, if he so desires,

can be a part of an international Hindu Order or an International Christian Order. Islam having an international

presence, every Muslims has a right to aspire to be a part of International Islamic Order, It is pleaded that the present

Central Government is inimical to the minorities and the ban on SIMI is wholly unconstitutional. It has been denied

that during Ikhwan conferences, the anti-national and militant postures of SIMI were manifested in the speeches of

its leaders who glorified pan Islamic Fundamentalism, used derogatory language for deities of other religions and

exhorted Muslims for Jehad. It is denied that SIMI has published objectionable posters and literature which are

calculated to incite communal feelings and which question the territorial integrity of India. It is pleaded that no

poster has been displayed or literature published by SIMI to incite communal feeling and which question the

territorial integrity of India.

THE GAZETTE OF INDIA: EXTRAORDINARY

[PAKT II—SEC. 3(ii)l

Taking into consideration the issues involved and the statutory limitation of six months under the Act for

completion of the enquiry, parties were directed to lead their evidence by way of affidavits, Shri B.K. Haider, Joint

Secretary, Union Ministry of Home Affairs, New Delhi, filed an affidavit, in support of the notification. On the other

hand, Shahid Badar, All India President of SIMI filed his affidavit and Mohammad Hasan, President of Rajasthan

Zone, and Humam Ahmad President of UP. Zone also filed their affidavits. During the course of enquiry affidavits

of Shakir Azim, Secretary Tamil Nadu Unit; Mohd. Ikrar, Secretary, Madhya Pradesh Unit; K.T. Mohd., President,

Kerala Zone; Shamsul Haque, Secretary, West Bengal Unit; Mohd. Athar Qurcshi, President, Hyderabad Unit on

behalf of respondent SIMI were also filed. They also filed additional affidavits and documents when they appeared

as withnesses. Affidavits along with documents were also filed by the concerned officers of respondent Nos. 2 to 11,

in support of the notification. Thereafter parties also examined their witnesses. As per the request of parties hear-

ings of the Tribunal were held in Delhi as well as in the States

The Central Government in support of its case examined PW-41, B K Haldar, Joint Secretary, Ministry of

Home Affairs, Government of India, who proved his affidavits Ex.PW-4l/l and Ex.PW-41/4; and the notification

Ex.PW-41/2; the background note prepared by Mr. Jag Ram, Deputy Secretary, Ministry of Home Affairs Ex. PW-41/

3. He also proved Summary Chart of Cases registered against members of SIMI during 1997-2001 in different States

and the supporting documents marked PW-41/3-A (Collectively), copies of posters, calendars and pamphlets published

by SIMI marked PW-41 /3 -B and other notification marked P W-41 /3 C. He deposed that the Government received the

material regarding unlawful activites of SIMI from the Stales and other agencies; that SIMI has close links with

extremist and militant organisations in Punjab, Jammu and Kashmir and supports the claim for secession of Indian

territory; that during "Ikhwan" conferences SIMI had glorified Islamic fundamentalism, used derogatory language

against Hindu deities and exhorted Muslims for "Jehad"; that SIMI had published objectionable literature and

pamphlets, instigating communal disharmony in the country and engineering communal disturbances and disruptive

activities in various parts of the country. On the basis of this material, the Govt, took a decision to ban SIMI,

declaring it to be an unlawful organisation under sub-section (1) of Section 3 of the Unlawful Activities (Prevention)

Act.

Evidence was also led on behalf of the ten respondent-states. Modal officers and the investigating Officers,

who investigated the cases registered against the members of SIMI have been examined. The Nodal officers proved

the affidavits of the Investigating officers working under them and the documents filed along with those affidavits.

In some cases, Investigating officers also appeared as witnesses and proved their affidavits. They proved FIRs,

charge-sheets, investigation reports, panchnama showing recovery of arms, explosives and other case property of

the cases registered against SIMI members. Some confessional statements made by the accused persons have also

been proved.

Respondem-SIMI examined nine witnesses RW-1, Shahid Badar, All India President, SIMI supported his

case and proved constitution of SIMI Ex. RW-1/1. RW-2, Shakir Azim, Secretary, Tamil Nadu Unit, RW-3,Humam

Ahamd, President of U. P. Zone; RW-4, Mohammad Hasan President of Rajasthan Zone; RW-5, Mohd. Ikrar, Secretary,

Madhya Predesh Unit; RW-6, K.T. Mohd., President, Kerala Zone, RW-7, Shamsul Haque, Secretary, West Bengal

Unit; RW-8, Mohd. Athar Qureshi, President, Hyderabad Unit, and RW-9, Irshad Khan Salim Khan, Zonal President

of SIMI Unit in Maharashtra appeared as withnesses in support of the case of SIMI. These witnesses proved their

respective affidavits and have stated that the activities of SIMI are lawful, social and educational

I have heard Sh.K.K. Sud, learned Additional Solicitor General, Sh. Sidharth Luthra learned counsel for

SIMI and have been taken through the record.

Mr. Sidharth Luthra, learned counsel for respondent No. 1 -SIMI argued that for the purpose of adjudicating

whether or not there is sufficent cause for declaring SIMI as unlawful, the material collected by the Central Government

after issuance of the notification dated 27th September, 2001, declaring SIMI to be and unlawful association, cannot

be considered, as the same was not available before the Appropriate Authority when it took the decision to ban

SIMI. He further argued that the material relies upon by the Government while declaring SIMI as an unlawful

association is stale and insufficient and on the basis of such material, no opinion for declaring an association

unlawful could be formed. I am unable to agree. These principles are applicable while examining the validity of a

preventive detention order; where the Court, is required to see whether the subjective decision was reached by the

detaining authority on the material available before it. The adequacy of material on which the satisfaction purports

to rest cannot be examined by the Court. However, under sub-section (1) of section 4 of the Act, the Tribunal is

required to adjudicate whether or not there is sufficient cause for declaring the Association unlawful. Thus, the

material which existed prior to the notification but comes in possession of the government after the issuance of the

Notification under Section 3(1) of the Act, can be considered by the Tribunal to determine the sufficiency of the

cause.

Learned counsel for respondent No. 1-SIMI next argued that the confessional statements made by the

accused persons arrested in different cases, even prior to 27th September, 2001, cannot be relied upon cither to

show that the accused persons were members of SIMI or to prove that the activities of SIM1 were or are unlawful or

that it encourages or aids the persons to undertake unlawful activities. He argued that the facts revealed through

these confessional statements; were within the knowledge of the different investigating agencies, therefore, the

reception of the said statements would be barred under Section 27 of the Evidence Act. Reliance is placed on

Pulukuri Kottava and Ors. Vs. Emperor 1947 Privy Council, 67. Learned counsel for UOI argued to the contrary. The

confessional statements referred to and relied upon by the Government, were recorded during investigation of the

criminal cases in which they Were arrested. Section 25 of the Evidence Act provides that no confession made to a

police officer shall be proved against a person accused of any offence ^ The expression "a person accused of an

offence¹ describes the person against whom evidence is sought to be proved in a criminal case. The adjective clause

"accused of an offence", is therefore, descriptive of the person against whom a confession is sought to be proved.

The confessional statements, can be used in Civil Proceedings and other collateral proceedings under the Criminal

Procedure Code. The inquiry before this Tribunal is clearly not a trial against the accused persons, who made the

confessional statements. Therefore, in my considered view confessional statements made by the accused persons

during investigation of different cases to the police or before the court., would not be hit by Section 25 of the

Evidence Act and are admissible in evidence, to show whether the accused persons were or are the members of the

association, as well as to show whether the activities of the association are unlawful or not. This view finds.support,

fromMahanta Singh Natha Singh Vs. HetRam Pakhar andAnr., AIR 1954 (Punjab) 27 and Full Bench decision of

Madras High Court in Suman and etc. Vs. State of Tamil Nadu, AIR 1986 (Madras) 318, wherein it was held :

"It has to be remembered that when S.25 refers to a confession which is not permitted to be proved as

against a person accused of any offence, it refers to a confession made by an accused person which is

proposed to be proved against him to establish an offence. The scope of S.25 is therefore restricted only to

a confession made by a person who is an accused that is being used in a proceeding to establish an

offfence against him "

(Emphasis supplied)

In view of the above, the confessional statements recorded during the course of investigation of various

criminal cases by the police would be admissible to determine the activities of the Association as well as its

members.

Learned counsel for SIMI next argued that Government could not claim privilege in public interest and

withhold inputs received from its agencies, while declaring SIMI as an unlawful association and that no privilege

could be claimed under Section 123 read with Section 162 of the Evidence Act in respect of such documents.

Reliance is placed on the Supreme Court decision in Dr. George Mathew Vs. Union of India, 1997 (10) SCC 537 and

State ofU.P. Vs. Raj Narian, 1975 (5) SCC 428. Law with regard to claim of privilege is well settled. Privilege can

always be claimed regarding the internal files which are meant for the use of the department and not meant for the

outside exposure or publication. PW-41, Mr. B.K. Haldar, Joint Secretary, in his affidavit has clearly stated that the

disclosure of the inputs received from various Government agencies would be against public interest. The objection

was taken at the earliest opportunity. Learned counsel for the Government further submitted that they have no

obj ection if the relevant files are perused by the Tribunal. In view of this settled proposition of law, this contention

Is also held to be without any merit.

Learned counsel for the respondent SIMI next argued that the material relied upon by the government in the

form of calendars, magazines, posters, etc. only reflects historical facts or reproduction of religious scriptures, It is

argued that this material could not form the basis to show any unlawful activity of an individual or an Association,

within the meaning of Section 2(f) of the Act. He further argued that the said material falls within the scope of

freedom of speech and expression guaranteed under Articles 19 and 25 of the Constitution of India and that banning

or forfeiture of such material would violate Article 25 thereof. Every religion is to be treated equally and no

preference is to be given to any particular religion. Liberty of thought, expression, belief, faith and worship arc

assured under the Constitution, therefore. Section 153-A and 153-B, IPC are not attracted. In support of his submission

he placed reliance on the decision of the Supreme Court in Balwant Singh Vs. State of Punjab (AIR 1995 SC 1775);

ChandaMal Chopra Vs. State of West Bengal (1986 Crl.L.J. 182): Joseph Bain D'Souza Vs. State of Maharashtra

(1995 Crl. LJ. 1316); Shiv Kumar Mishra Vs. State of Uttar Pradesh (1978 Crl. L.J. 701); and The Commissioner,

Hindu Religious Endowments, Madras Vs. Sri iakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282).

There can be no dispute about this proposition when someone is sought to be prosecuted under Sections

153-A and 153, IPC. Here the issue is whether SIMI is an "unlawful association' as defined under clause (g) of

Section 2 of the Act, which reads :

THE GAZETTE OF INDIA: EXTRAORDINARY

|PAKTH—SEC,3(D)]

2(g)

"Unlawful Assciation" 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 153Aorsection 153Bofthe

Indian .Penal Code, or which encourages or aids persons to undertake any such activity, or of

which the members undertake any such activity.

A bare reading of the above would show that an unlawful association' means an Association 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 any such activity or which has for its object any activity, which is punishable under

Sections 153-Aand 153-B, IPC. The section is very wide. If an Association has for its object any unlawful activity,

it can be declared as an unlawful association. The "unlawful activity" in relation to an individual or association has

been defined under section 2(f) of the Act, to mean 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), 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 oflndia from the Union, or which incites any individual or group of

individuals to bring about such cession or secession; which disclaims, questions, disrupts or is intended to disrupt

the sovereignty and territorial integrity of India. Therefore, while considering the question whether an Association

is carrying out any unlawful activity or not, we have to go by the definition as given in Section 2 (0 of the Act. The

"cession of any part of the territory of India" defined under sub-section (b) of Section 2 of the Act includes

admission of the claim of any foreign country to any such part. "Secession of a part of the territory of India from the

Union" defined under sub-section (d) includes the assertion of any claim to determine whether such part will remain

a part of the territory of India or not. None of the cases cited by learned counsel for the respondent S1M1 under

Sections 124-A and 153-A are applicable to the facts of this case. The factual situation in each of those cases is

different. Mere inciting of feeling of one group, without any reference to another religion was held not to attract the

provisions of Section 153-A. Again, mere casual raising of some slogans couple of times by the accused persons,

without intention to incite people to create disorder was held neither to constitute any threat to Government oflndia

nor it gave rise to a feeling of hatred amongst different communities or religions. Therefore, in ultimate analysis, it

would be a question of fact to be examined whether the material available before the Government and placed before

the Tribunal is sufficient to hold the association as an unlawful association or to hold that the activities alleged are

unlawful activities or not, as defined in sub-section (f) and (g) of section 2 of the Act

Learned counsel for the respondent next argued that no reliance can be placed on the affidavit or the

documents filed by PW.41, B.K. Haldar, as the facts stated in his affidavit arc not based on his personal knowledge

arc based on information gathered from the record. Thus, the government has failed to prove its case. The enquiry

under this Act is not a regular trial. Strict rules of evidence and standard of proof are not applicable. The material

placed before the Tribunal need not be a legal evidence in the strict sense. The Tribunal can even look into

undisclosed material for the purpose of assessing the credibility of information and satisfying itself whether it can

be safely acted upon. Law in this regard is authoritatively laid down by Ihc apex Court decision in Jamaat-e-lslami

Hind Vs. Union of India, (1995) 1 SCC 428 wherein it was held :—

"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 madron the points in controversy after assessing the credibility of the material

it has chosen to accept, without abdicating its function by merely acting oil 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."

(emphasis supplied)

It was further held :—

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.''

(emphasis supplied)

Now the stage is reached to consider the material on record. The Central Government in support of its case

proved the Background Note on (he unlawful activities of S1M1. Along with this note, they have filed the list of more than

hundred criminal cases registered against the members of SIMI under various Sections oflPC/Cr. P.C (annexure-I). They

have also filed posters, pamphlets, articles, speeches, denigrating the Hindu religion and instigating Muslims to fight

against Hindus. The calendar Published by SIMI contain distorted and misleading historical facts about accessation of

Kashmir to India giving an impression that Kashmiri Muslims had been suppressed and exploited for long. Some of the

posters, pamphlets and a calendar have also been proved along with the note as annexure-IT. The slogans on some of the

posters read :—

1. KhoonkaBadlaKhoonSeLengc.

2. Kaba Ka Itihass Dohrainge.

3. Jaha Jaha Hindustan Me Mandir Bane Hai, Unhc Masjid Banadenge:

4. Ayodhya Main Jo Murtiya Rankhi Hai Unhc Uthakar Phenk Denge.

5. Jis Murti Ko seer Jhukakar Pu ja karte Hain Use Bhi Phenk Denge.

6. Pas Bode Ne Bano Or Suleh Ki Darkhast Na Karo Turn He Galib Rahonge.

7. TeraBadlaHaiKarzHumpur.

8. Bada Mubarak Jehad Hai Ye Saliar Ki Ummind Jinda Rakhna, Nai Chain Julmat Ko Lene Dena, Sabo Ki Nind

Udai Rakhna.

9. SrinagarSeDiliTakDusraPakistanBanega.

10. Sang-e-Azadi Hai Ye, Zang-e-Azadi Zari Raklina.

11. BharatKaSarPhodo,BoloLabaekAJa.

12. Mil Ke Utlitho Or Masrike Pakistan Ka Karz Bhi Chuka Do

13. YallahiBhejDcMahmoodKoi.

14. Ye Door Apnc Ibrahim Ki Talash Main Hain.

15. Hinduo Ka Ek Ilaz Inse Padhao Naniaz.

16. Parlok Main Jahainnum Ki Aag Ke Karak.

17. Ayodhaya to Jeruselam Jehad will go on.

18. Waiting, How Long.

19. Waiting for another Gaznavi.

The above slogans clearly prove the involvement of SIMI in questioning the unity and integrity of India,

instigating communal strife, hurting sentiments of other religions and various social groups thereby disturbing peace arid

communal harmony. The pamphlet/publication calling Kashmir the * 'Kosovo of India'' showing that Kashmir is not to be

the part of India, article calling for "Islamisation of India" and the speeches by activists further show that they had no

faith in the Constitution of India.

Tlie respondents, in support of their case, have examined their All India President, Mr. Shahid Badar, as RW. 1

and other State office-bearers as RW. 2 to RW. 9. While denying the allegations against SIMI alongvvith the affidavit, he

has claimed that SIMI was never involved in questioning the unity and integrity of India, instigating communal strife,

polluting the mind of people, disturbing peace and spreading communal disharmony; and that SIMI association and its

members have faith in the Constitution of India.

However, this does not find support from their own evidence. The respondent No. 1-SIMI examined RW-2,

Shakir Azim, Secretary of their Tamil Nadu Unit, a lecturer in Mohd. Sadar College of Arts and Science at Chennai. He

<07(^f/CO".2-

THE GAZETIEOFIND1A: EXTRAORDINARY

[PART fl—SEC, 3(ii)]

stated that tbey got the calendars from the Head Office of SIMI in Delhi and were circulated amongst its various

units containing preaching of SIMI. It also contains narration of the sufferings of the p eople of Jammu and Kashmir.

He admitted that SIMI believes that Muslims of Jammu and Kashmir have a right of plebiscite for self determination.

In cross-examination, he stated that "political-religious State, comprising the Muslim community and the lands and

the people in its domain are called Caliphate. It is correct that SIMI believes in establishing Caliphate all over the

world. I have not heard of the expression International Islamic Order." He further admitted that on 25th June, 1999,

two persons, Shah Jahan and Abu Thadeer were arrested while distributing copies of SIMI Sethi Madal, containing

inflammatory and objectionable writings and FIR No. 722/99 was registered against them, However, he denied that

they were the members of SIMI. He further admitted that on 4th December, 2000, Manzoor, Hakklm and Shabeer were

arrested by police of Tamil Nadu while pasting objectionable posters at Coimbatore. He admitted that case FIR No.

722/99, under Sections 124A/153A and 153B was registered at P.S. Kattur on 25-6-1999 against seven persons

including Shamlmul Islam, Syed Abdur Rahman Umari and Khader Basha. Admittedly they were the members of

SIMI. The FIR reads : We found that they were in possession of copies of Magazines "Seithi Madal" of Students

Islamic Movement—June 1999 issues containing 8 pages. Each copy was enclosed with May 1999 Seithi Madal

issue a special issue relating to KOSOVO, An article with captions Kashmir; KOSOVO OF INDIA was found in the

first and fifth pages of June month issue, The wording of the article was framed in such a way that it would create ill

feelings among the Muslims against India. Hence the accused were arrested." The said case is admittedly pending

trial.

Admittedly, on 10th January, 2001, one sticker bearing monogram of SIMI was found pasted near the guard

post of SRK Hotel of Jamia Milia Islamia University, Okhla, New Delhi in which three mosques, i.e. Masjid Kartaba,

Babri & Masjid Akha with symbols of cross, swastic and star respectively were shown in tears, with Hindi translation

of Quaranic Aayaat No. 2:14, which says that person who prevents people from offering Namaz and damages the

mosques is the most cruel man. The intent was to instigate the sentiments of Muslims to strive for the liberation of

these Mosques. A case under Sections 153 A/153B/5O5(1) read with Section 124, IPC was registered at P.S. New

Friends Colony. Investigation revealed the identity of accused Shahid Badar as the All India President of SIMI. He

was arrested and the case is pending trial.

On 7th October, 2000, another case FIR No. 489/2000. under Sections 124A/153B IPC was registered on the

basis of calendar Published by SIMI which was examined by the Government of NCT. The calendar contains references

that are likely to create enmity and communal disharmony as well as prejudicial to the national integration, legal

proceedings against the authors and the publisher of the calendar were initiated. Investigations were taken up. The

calendars presents distorted facts about accessation of Kashmir to India and gave an impression that Muslims have

been persecuted for long in Kashmir. Thus they promoted disaffection against the Government established by law in

India. It is stated that "the self-styled champions of human rights the British sold Kashmir and Kashmiris to Raja

Gulab Singh for a mere 75 lakh rupees. Allama Iqbal lamented: "delikan o kisi jua khiyaban frolhtand. Laumey

frukhland che arzan frokhtand" The tillers, the crops, the lakes and orchards they sold. A whole nation they sold-

and for a pittance. It show that Kashmiri Muslims were subjected to extreme repression at the hands of Gulab Singh

and his descendants for one hundred and one years. A number of mosques were razed to the ground. Imams

restrained from delivering sermons. In 1931 the Khattev of Jammu Idgah was nabbed out while delivering the

Khatba. It is claimed that desecration of the Holy Quran was a common occurrence. For beggar (forced labour) any

number of Muslims were lifted from their Homes and driven away like cattle. It was not always that all of them

returned to their kith and kin. It claimed that Muslim women bit a cow under Raja Hari Singh's order her head was

shaved, her tongue chopped off and she waffparaded in the streets. The skins of Milli Khan and Sabz Aliwcr peeled

off and stuffing with rubbish and they were left hanging on a tree. They claim that Kashmir is today subjugated

oppressed and poverty stricken.

January, 2000 issue (i) Frontpage of the magazine, and at page 29, an article, "Bandh Lo SarPar Kafan Phir"

written by AsifHussain contain objectionable material which attract Section 153-Aof the IPC, 1860 as it promotes or

attempts to promote enmity, hatred or ill-will between different religious groups on grounds of religion, which is

prejudicial to maintain communal harmony.

State of Delhi in support of its case examined PW-1, Govind Sharma, Sub-Inspector, Special Cell, Lodhi

Colony, New Delhi, who in his evidence proved his affidavit Ex. PW-1/1. Copy of FIR No 304/2001 registered at P.S.

Kamla Market u/s. 121/121A/122/123 etc. IPC and under Sections 4/5 of the Explosive Substances Act, and copies of

the disclosure statements of the accused persons as well as connected documents arc marked PW-1/1 A to PW-1/1E

respectively, showing recovery of 1.9 kg. of RDX, four detonators, two remote control detonating devices and a

wireless set, etc. effected from Ghulam Mohidin Shall.

PW-2, Chander Bhan Sharma, Inspector, Special Cell, Lodhi Colony, New Delhi, who in his evidence proved

his affidavit Ex. PW-2/1; that he conducted raid on the night between 27-28/9/2OO1 and arrested Shahid Badar,

National President of SIMI; SaifNachan, Office Manager-cum-Circulation Manager, SIMI; Mohd. Khalid, Assistant

Manager SIMI; and Man Ahmed, Office Secretary, in the case FIR No. 532/2001, P.S. New Friends Colony and proved

the incriminating material seized vide different seizure memos, marked PW. 2/1A1 to PW. 2/1A10. Transcripts of

floppies CPU and audio-video cassettes, and disclosure statements of Shahid Badar and SaifNachan were recorded

and copies of magazines seized and scrutinised, marked PW. 2/1C.

PW-3, Satyavir Dagar, Inspector, District Investigation Unit, South Distt, New Delhi, who in his evidence

proved his affidavit Ex, PW-3/1; he investigated the case FIR No. 489/2000 dated 7-10-2000, P.S. New Friends Colony,

with respect to the calendar for the year, 2000, published by SIMI received from Ministry of Home Affairs through

the Home Department of the Government of Delhi, containing distorted facts regarding accession of Kashmir to

India, disharmony between various sections of the Indian Community. FIR No. 535/2000 was also registered on the

basis of monthly magazine Islamic Movement and other documents, which are collectively marked PW-3/1 A.

PW-10, Braham Pal Sub-Inspector, P.S. New Friends Colony, Delhi, who in his evidence proved his affidavit

Ex. PW-10/1. He registered FIR No. 643/2001 on 25-11-2001, on the basis of 13 magazines seized from the possession

of Mohd. Hakib Iqbal at Batla House Chowk, Jamia Nagar. Copy of the seizure memo of the magazine as well as

disclosure statements of the accused is marked PW-10/C and PW-10/D respectively.

PW-24, Hukam Chand S.I. Special Cell, Lodhi Colony, New Delhi, who in his evidence proved his affidavit

Ex. PW-24/1; He on 19-5-2001, registered FIR No. 269/2001 under Sections 153-A/153-B/505(l) B&C & 124AIPC, PS

New Friends Colony, New Delhi. On 10th January, 2001, some stickers were found pasted on the walls of SRK Hostel,

Jamia Millia University, Okhla, Delhi. On those stickers three marks, namely, Masjid Kartaba (Spain), Masjid Babri

(U,P.) and Masjid Aksha (Philistine) were printed. On Masjid Aksha cross mark, on Masjid Babri, Swastic mark and

on Masjid Kartaba star mark were also printed. He also proved on record copies of stickers. Copy of FIR is marked

PW-24/A; and copy of confessional statement is marked PW-24/D.

In the State of Uttar Pradesh, as per the material on record, 12 criminal cases were registered from 28th

March, 1999 to 27th September 2001 against the persons, some of whom are admittedly activists of SIMI for various

heinous offences including the following:—

(i) On 9th August, 2000 at 11.30 pm. in Mohala Qureshi, there was a bomb explosion. Three persons were

seriously injured in the said explosion and they later on died. Inquiries revealed that the persons who had died were

students of Aligarh Muslim University. A case FIR No. 988 dated 9th August, 2000, under Sections 4/5 Explosive

Substances Act and Sections 420/467/468/121/121 A/122/123/124/A IPC, P.S. SadarBazar Agra. Investigations revealed

that they had come to Agra for the purpose of some practical training. During investigations on 3rd September, 2000,

Maroof Ahmed and Abdul Mobin of Aligarh Muslim University were arrested large quantity of RDX, pamphlets and

magazines were recovered. One Gulzar of Jammu and Kashmir was also arrested, and on his disclosur Ex.PW-5/lE

several other incidents in U.P. were solved. The accused confessed that he had been participating in weekly meeting

SIMI known as "Izaatmaas". confessional statements of Maroof Ahmed and Mobbin, Ex.PW-5/lC and Ex.PW/5/lD

also show that they are members of SIMI indulging in unlawful activitcs.

(ii) On 16th March, 2001, in a firing incident ADM (Finance) Shri C.P. Pathak was killed on the spot and his

orderly Ram Chander and S.P. City, Pankaj Pathak were badly injured. Case vide FIR No. 72/2001 under Sections 302/

307/147/148/153 IPC at PS. Mool Ganj, Kanpur was registered, Four persons, namely, Mohd. Wasif, Mumtaz (a)

Maulana, Haji Atiq and Safaaq were arrested, Mumtaz in his confessional statement admitted that he is an active

member of SIMI and has been pursuing the guide-lines laid down by SIMI and has been indulging interrorists

activities with a view to achieve its objectives and that he through SIMI leaders came in touch with militant outfits

Hizbul Muzahideen. Mohd. Wasif also made similar confessional statement marked PW-6/E. He also stated that he is

an active member of SIMI and he came in touch with militant outfit organization Hi/.bul Muzahideen. These facts

stand proved by the evidence of PW-6, Bijender Singh Tyagi, SHO, P.S. Kotwali, Kanpur Nagar, and his affidavit is

Ex.PW-6/1.

(iii) On 3rd August, 2001, during the course of investigation, one Wasif was arrested. From his house search

one factory made .30 bore pistol, 3 magazines, 24 cartridges, 1.38 bore pistol, one magazine. 6 cartridges were

recovered without licence. A case vide FIR No. 72/2002 was registered. On his disclosure statement, he led to the

recovery of 200 grams of RDX, 2 kg ofpotassium chloride, timer and other material used in making the country-made

explosive was recovered, 9 hand-grenades were also recovered and a separate case vide FIR No. 73/2001 was

registered. In his disclosure statement Ex. PW-12/1D, he confessed thai he met, Amir, Zamir, Najir office-bearers of

SIMI. Nazirhas taken him to Kashmir where he was given training in handling arms and ammunitions. He further

confessed that he was persuaded for all that on the ground that atrocities are being committed by Indian Army on

the Muslims in Kashmir. These facts stand proved by the evidence of PW-12, Dharam Pal Singh, Inspector, P.S.

Raipurwah, Kanpur and his affidavit is Ex. PW-12/1.

THE GAZETTE OF INDIA: EXTRAORDINARY

[PAR r II—SEC. 3(ii)]

(iv) On 14th August, 2000, there was a bumb blast in Sabarmati Express at Railway Stalion. Rosa Gaon. 10

persons were killed and 44 were injured. Consequently, a case vide FIR No. 148/00 under Sections 150(2)/151

Railways Act and Section 3 Explosive Substances Act and Sections 3O2/3O7/338/12OB/121/122/123/124 I PC at GRP

Barabanki was registered. During investigations, three persons were arrested. Mohd. Akil, Maroof Ahmed and

Abdul Mobin in their confessional statement submits that they arc the active members of SIMI and they had been

participating in the meeting of SIMI and they had kept the bag containing bag in Sabarmati Express at the instance

of Guljar. They confessed their involvement in their disclosure statements which are PW 18/D collectively. These

facts are proved by the evidence of PW. 18,SO.,PS. Railway Barabanki and also by his affidavit PW 18/1.

(v) On 3-8-2001, 200 gms. RDX, 2 kg. Potassium Chloride, Power Circuits, Remote Circuits, Detonators,

Rocket Cells, Bumb making chemicals were recovered from the possession of Mumtaj Ahmed, FIR Nos. 83/2001

under Sections 3/4/5 Explosive Substances Act was registered. Similar articles/materials were recovered from Gulam

Jilani and Mohd. Zuber and FIR No. 85/2001 under Sections 4 and 5 of Explosive Substances Act and FIR No 70/

2001 and FIR No. 71/2001 under Sections 25/27 Arms Act and Sections 3. 4, 5 Explosive Substances Act were

registered. During investigations, they confessed that they are the active members of SIMI and they have been

participating in the tarrorils activities and in touch with Kashmere militants. This was proved by PW-2 Ajay Kumar

Kulshreshta, SHO, P.S. Bajaria, Kanpur and by his affidavit Exhibit PW 20/1. RW. 3 Humain Ahmed in his evidence,

has admitted some of the accused persons mentioned arc the member of SIMI. President, Uttar Pradesh Zone of

SIMI. Other,accused persons are the members of SIMI stands proved by the disclosure statement of the accused

persons made during investigations as referred to above.

RW-4, Dr. Mohammad Hasan, President, SIMI Unit, Rajasthan in his affidavit admitted pendency of six

cases from 1998 to 2001 in different districts. FIR No. 136/98 under sections 153 A/295 A 1PC P.S. Kotwali, Bikaner

where around 300 people of Muslim community were present, case was registered against Yasecn Patel, Muzaffar AH

andNiyamat AH, who are stated to be members of the SIMI. Penisal of FIR No. 13f>/98 reveals that the case was

registered on the basis of speeches delivered in front of Masjid wherein Hindu Deities, Gods and Goddesses were

ridiculed and abused. Prima facie it reveals that they have been abusing Hindu Gods and Goddesses with an intent

to cause disaffection between different communities.

During the Navcd-e-saher on 10th, 1 lth and 12th September, 2000 at Indore, members of SIMI exhibited

posters instigating the Mohamaddan youths saying "Pas bode na bano aur sulah ki darkhwast naa karo, turn hi galib

rahoge". They also published poster containing "Vah din bhi babri masjid dikhayenge ek din, sujid sc tujhc apane

sajayenge ek din, Inshaallah" showing three weeping mosques and also written "Ye dor apane ibrahini ki talash mein

hai". Cases under sections 153 A/153B/295A were registered against them. RW-5, Mohd. Ikrar, Secretary, Madhya

Pradesh State supporting the case of SIMI in his affidavit admitted the pendency of 40 cases in differednt districts

of State of Madhya Pradesh.

The evidence led by the other States and the respondent -SIMI through RW-6 to RW-9 is practically on

similar lines and further discussion on their evidence is not required. The above material clearly shows that activities

of SIMI are unlawful.

From the foregoing discussion it is clear that members, office-bearers and activists of SIMI Association

have been indulging in unlawful activities. There is sufficient material, justification and grounds for the Central

Govermcnt for taking action under sub-section (1) of section 3 of the Act for declaring SIMI as an unlawful association.

It may also be noticed that apart from the evidence lead by the Central and the State Goverments, which was made

available to respondent-SIMI, the Central Government also produced original files. Penisal of the files showed that

the Central Government had received intelligence reports from other agencies, and together with material which was

available with the Government, it formed its opinion to declare SIMI as an unlawful association and imposing the ban

with immediate effect.

For the foregoing reasons, I hold that there is sufficient cause for confirming the noti fication issued under

sub-section (1) of section 3 of the Act, declaring SIMI to be an unlawful association and the same is hereby

confirmed. The reference is answered accordingly.

Justice S K. AGGARWAL

Unlawful Activities (Prevention) Tribunal

March 26,2002,

New Delhi

[F. No. I1-14O17/3/2OOO-N1 (DV)]

B.K.HALDER,Jt. Secy.

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and Puhlished by the Controller ot Publications, Dclhi-110054.