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2013 DIGILAW 2269 (MAD)

Prisoners Rights Forum (A registered Public Trust bearing Regn. No. 4319/2008) v. Union of India, rep. by Home Secretary, New Delhi

2013-07-01

ELIPE DHARMA RAO, M.VENUGOPAL

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JUDGMENT Elipe Dharma Rao, J. 1. The order of the Tribunal under the Unlawful Activities (Prevention) Act, 1967, dated 12.11.2010, thereby confirming the declaration made by the Central Government, vide Notification dated 14.5.2010, in exercise of the powers conferred by sub-section (1) of Section 3 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the Act), declaring the Liberation Tigers of Tamil Eelam (in short LTTE), is under challenge in both these writ petitions. 2. By the notification in S.O.1090(E), dated 14.5.2010, the Central Government, declared LTTE as an 'Unlawful Association', under Section 3(1) of the Act. It was given wide publicity, by publishing in the Gazettes of both Central and State Governments and by publishing in the news papers 'Daily Thanthi' and 'The Hindu' on 23.5.2010 besides exhibiting it in the notice boards of all public offices. 3. Section 4 of the Act, inter alia, provides that if any Association is declared unlawful by a notification issued by the Central Government, the notification shall be referred to the Tribunal for the purpose of adjudicating whether or not there is sufficient cause for declaring the Association unalwful and Section 4(2) confers power upon the Tribunal to call upon the Association affected by notice in writing to show cause within 30 days from the date of service of notice as to why the association should not be declared unlawful. 4. In this manner, on reference to the Tribunal, since there was no particular address of the LTTE in India, the Tribunal has directed that notices be served upon LTTE in the same manner as the Notification banning it was effected and thus, despite notices having been served in every possible and conceivable manner on the LTTE, there was no appearance before the Tribunal on their behalf. Therefore, the Tribunal proceeded with the inquiry in the manner provided for under Section 9 of the Act. 5. Before the Tribunal, Mr. Vaiko, the petitioner in W.P.No.28388 of 2010 has filed an impleadment petition in Application No.1/2010 praying to implead him as a party and to participate in the inquiry and place relevant facts before the Tribunal. Therefore, the Tribunal proceeded with the inquiry in the manner provided for under Section 9 of the Act. 5. Before the Tribunal, Mr. Vaiko, the petitioner in W.P.No.28388 of 2010 has filed an impleadment petition in Application No.1/2010 praying to implead him as a party and to participate in the inquiry and place relevant facts before the Tribunal. The Tribunal, after hearing the petitioner Vaiko and the learned Additional Solicitor General appearing on behalf of the Government of India, and by relying on the judgment of the Honourable Apex Court in Jamaat-E-Islami Hind vs. Union of India [ (1995) 1 SCC 428 ], by its order dated 25.9.2010, has rejected the said impleadment application. 6. Subsequently, when the Tribunal, was conducting its hearing at Chennai on 5.10.2010, similar pleas of interventions were moved by Mr. M.Radhakrishnan (learned counsel appearing for the petitioner in W.P.No.26506 of 2010 herein) on behalf of the petitioner in the said writ petition and by Mr. Pazha Nedumaran on behalf of Tamilar Desiya Iyakkam. However, the Tribunal, relying on its earlier order passed in the case of Mr. Vaiko, dismissed both these impleadment applications also by separate orders dated 6.10.2010, holding that the locus standi, so far as the Tribunal is concerned, is restricted by virtue of Section 4(3) of the Act to the concerned Association or its office bearers or members. Aggrieved, the petitioner in W.P.No.26506 of 2010 herein filed W.P.No.23141 of 2010 before this Court and the said writ petition was dismissed by this Court on 10.10.2010. Thereafter, the Tribunal has proceeded with the enquiry in the manner provided for under the Act and has, ultimately, passed the impugned order on 12.11.2010, confirming the declaration made by the Central Government, dated 14.5.2010, challenging which the petitioners have come forward to file these two writ petitions. 7. Thereafter, the Tribunal has proceeded with the enquiry in the manner provided for under the Act and has, ultimately, passed the impugned order on 12.11.2010, confirming the declaration made by the Central Government, dated 14.5.2010, challenging which the petitioners have come forward to file these two writ petitions. 7. The main argument advanced on the part of the petitioners in both the writ petitions is that the LTTE's object for separate homeland (Tamil Eelam) for all Tamils is restricted only to the Tamils living in Northern and Eastern part of Sri Lanka and it is not for establishing an independent sovereign State for all Tamils living in the entire world and since Sri Lanka is not part of Indian Territory, the object of establishment of Tamil Eelam is not intended to take even an inch of land belonging to Indian Territory and therefore, branding and declaring LTTE as an unlawful association is illegal as the materials did not satisfy the ingredients of 'unlawful activity' as defined under Section 2 of the Unlawful Activities (Prevention) Act. 8. On the other hand, the case of the respondents is that there is no jurisdiction for this Court to entertain the present writ petitions since the Tribunal adorns the Bench of the Delhi High Court; that there is no locus standi for either of the petitioners, since they are not at all 'aggrieved parties' and that the impleadment petitions filed by them were already dismissed by the Tribunal. Further, it has also been contended on behalf of the respondents that even if the petitioners are considered as 'aggrieved persons', since there is an alternative remedy available under Section 6(2) of the Act for such persons, these writ petitions filed under Article 226 of the Constitution of India, without exhausting the alternative remedy are not maintainable. Even on merits, the respondents would justify the order of the Tribunal. 9. We heard the learned counsel and party-in-person appearing on either side at length. 10. The undisputed fact is that both these petitioners have filed impleadment petitions before the Tribunal and they were dismissed by the Tribunal. Thereafter, the petitioner in W.P.No.26506 of 2010 has filed W.P.No.23141 of 2010 before this Court challenging the rejection of his impleadment petition by the Tribunal and the said writ petition was also dismissed by this Court on 10.10.2010. The undisputed fact is that both these petitioners have filed impleadment petitions before the Tribunal and they were dismissed by the Tribunal. Thereafter, the petitioner in W.P.No.26506 of 2010 has filed W.P.No.23141 of 2010 before this Court challenging the rejection of his impleadment petition by the Tribunal and the said writ petition was also dismissed by this Court on 10.10.2010. This order dated 10.10.2010 passed in W.P.No.23141 of 2010 has become final since no appeal has been preferred by the petitioner. In the case of Mr. Vaiko, he has not chosen to file any writ petition against the dismissal of his impleadment petition by the Tribunal. While that being the case, both these writ petitions filed by the petitioners, challenging the final order passed by the Tribunal, after allowing the decision of the Tribunal in rejecting their claim for impleadment to attain finality, are, undoubtedly, not maintainable. 11. Further, it is the specific plea of both the petitioners that they are neither office bearers nor members of the LTTE but are only its sympathizers. As could be seen from the records and as has already been narrated by us supra, despite service of notices under Section 4(2) of the Act in every possible and conceivable manner on the LTTE, there was no representation on their behalf before the Tribunal. 12. As per Section 6 (1), a notification issued under Section 3 shall, if the declaration made therein is confirmed by the Tribunal by an order made under Section 4, remain in force for a period of two years from the date on which the notification becomes effective and as per Section 6(2), 'notwithstanding anything contained in sub-section (1), the Central Government may, either on its own motion or on the application of any person aggrieved, at any time, cancel the notification issued under Section 3, whether or not the declaration made therein has been confirmed by the Tribunal.' 13. In the case on hand, when admittedly it is the case of the petitioners themselves that they are neither the office bearers nor the members of the LTTE, it cannot, in any manner, be said that they are 'aggrieved persons' so as to challenge the notification, particularly when LTTE itself remained silent. Therefore, even on this ground of locus standi, both these writ petitions filed by the petitioners are liable only to be dismissed. 14. Therefore, even on this ground of locus standi, both these writ petitions filed by the petitioners are liable only to be dismissed. 14. Further more, the impugned notification having been issued by the Central Government on 17.5.2010 and confirmed by the Tribunal, by its judgment dated 12.11.2010, by virtue of operation of Section 6(1), by this time, since the prescribed two years period has already lapsed, nothing survives in these matters to be contested now. Therefore, even on this score, both these petitions are liable only to be dismissed. 15. With regard to the jurisdiction of this Court to entertain this petition also, we are in perfect agreement with the arguments advanced on the part of the respondents. The Tribunal adorns the Bench of the Delhi High Court and but for some hearings in Tamil Nadu, for all other purposes, the Tribunal is within the territorial jurisdiction of Delhi High Court alone. The Tribunal having been constituted at Delhi and being the Bench of the Delhi High Court, in our considered view, these writ petitions filed before this Court are liable to be dismissed on this ground of lack of jurisdiction for this Court also. 16. Even on merits, it has been argued on behalf of the petitioners that the activities of LTTE in having the goal of securing an independent Tamil State in Sri Lanka cannot at all be branded as an 'illegal activity' so as to declare the organisation as an 'unlawful association'. In support of such arguments, Mr. Vaiko, would rely on a judgment of the Supreme Court of New Zealand wherein while dealing with a case of a Sri Lankan citizen and a member of LTTE for a refugee status in New Zealand, it has been observed as follows: "92. At all relevant times the Tamil Tigers was an organisation having the goals of self-determination for Tamils and securing an independent Tamil state in northeast Sri Lanka. The principal objective was to induce the government of Sri Lanka to concede such political change. These characteristics made the Tamil Tigers a political organisation notwithstanding its use, at times, of prescribed methods of advancing its cause. That much is not in dispute...." 17. While observing so, the New Zealand Supreme Court has remitted the application of the individual therein for refugee status to the Authority concerned for further consideration. These characteristics made the Tamil Tigers a political organisation notwithstanding its use, at times, of prescribed methods of advancing its cause. That much is not in dispute...." 17. While observing so, the New Zealand Supreme Court has remitted the application of the individual therein for refugee status to the Authority concerned for further consideration. This judgment dealing with a case of a refugee status to an individual, cannot be said to have given any clean chit to LTTE. Even if it is presumed without conceding that a clean chit has been issued to LTTE by the said Court, the same cannot have any binding effect on us, since the present cases arose completely on a different facts and circumstances and the law applicable in respect of the situations is quite different. 18. It is not only the object of any Association for which it was established and continuing, but the way in which it seeks to achieve its object has to be pure and this has to be considered while branding any association or organisation illegal. A gruesome act of robbery and murder cannot get nullified or diluted for the simple reason that a part of booty was given for charity by the accused. In the same manner, though the object for which LTTE has been floated is highly laudable, with the passage of time, it has taken ugly path, leading to indulging in many heinous crimes in our land also. 19. Voluminous materials containing highly sensitive information have been produced before us by the respondents to show the involvement of the organisation in various crimes in Indian Land, including the assassination of Sri Rajiv Gandhi, wherein the top brass leaders of LTTE were the accused. We restrain ourselves from extracting contents of any of the above said documents herein, conscious of the fact that they are highly sensitive. All these materials were very well available with the Government while issuing the notification and were duly submitted before the Tribunal during the course of inquiry. That being the case, even on merits, we find every justification in the notification issued by the Government and the order passed by the Tribunal, having duly followed the procedure mandated under law. 20. All these materials were very well available with the Government while issuing the notification and were duly submitted before the Tribunal during the course of inquiry. That being the case, even on merits, we find every justification in the notification issued by the Government and the order passed by the Tribunal, having duly followed the procedure mandated under law. 20. Further, the question with regard to scope of judicial review in this type of matters by High Court under Article 226 of the Constitution of India, is pending consideration before the Honourable Supreme Court, having been referred to a Larger Bench in Students Islamic Movement of India vs. Union of India, Civil Appeal No.9208 of 2003. Since both these writ petitions are liable to be dismissed for the reasons stated supra, we have not gone into this legal question. Therefore, for all the above reasons, both these writ petitions are dismissed. No costs.