Sawant, J. - (1.) The petitioner in the writ petition is the Secretary General of Jamatee-e-Islami Hind (JEIH) which is an all India organisation. Appellants in the civil appeal are the Presidents of Bihar Zone and Patna Circle of the said JEIH, On 10th December, 1992, the Central Government issued a notification declaring the JEIH an unlawful association under sub-sec. (1) of S. 3 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the Act") and also gave immediate effect to the notification in exercise of the powers conferred by the proviso to sub-sec. (3) of S. 3 of the Act. The challenge in the present writ petition and the appeal has been restricted to the exercise of the powers under the proviso to sub-sec. (3) of S. 3. The controversy, therefore, lies in a narrow compass.
(2.) The scheme of the Act so far as it is relevant for our present purpose is as follows : Under sub-sec. (1) of S. 3 the Central Government is empowered to declare any association as unlawful, by notification in the Official Gazette, which association in its opinion is or has become unlawful. Section 2(a) defines association to mean "any combination or body of individuals". Section 2(f) defines unlawful activity in relation to an individual or association 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 (i) 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) disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India". Section 2(g) defines unlawful association to mean "any association which (i) has for its objects any unlawful activity, or which encourages or aids persons to undertake any unlawful activity, or of which the members undertake such activity; or (ii) has for its object any activity which is punishable under S. 153-A or S. 153-B of the Indian Penal Code, or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity". Section 3(2) requires that the notification issued under Section 3(1) shall specify the grounds on which it is issued and such other particulars as the Central Govt. may consider necessary. The proviso to sub-sec. (2) of the said Section states that nothing in the said subsection shall require the Central Govt. to disclose any fact which it considers to be against the public interest to disclose. Sub-section (3) of S. 3 states that no such notification shall have effect until the Tribunal has by an order made under S. 4, confirmed the declaration made therein and the order is published in the Official Gazette. The proviso to sub-sec. (3) of the said section which falls for consideration before us then states as follows : "Provided that if the Central Government is of opinion that circumstances exist which render it necessary for that Government to declare an association to be unlawful with immediate effect, it may, for reasons to be stated in writing, direct that the notification shall, subject to any order that may be made under S.4, have effect from the date of its publication in the Official Gazette." Section 4 makes a provision requiring the Central Govt. to refer the notification declaring an association unlawful, to the Tribunal within 30 days from the date of the publication, for the purpose of adjudicating whether or not there is sufficient cause for declaring the association unlawful. Sub-section (2) of Sec. 4 requires the Tribunal on receipt of the reference to call upon such association to show cause within 30 days from the date of the service of the show cause notice, why the association should not be declared unlawful. Subsection (3) of S.4 then requires the Tribunal to consider the cause, if any, shown by the association or its office bearers or members and to hold an inquiry in the manner specified in S. 9 of the Act and to adjudicate the issue as to whether there is sufficient cause or not for declaring the association to be unlawful, as expeditiously as possible and in any case within a period of six months from the date of the issue of the notification under sub-sec. (1) of S. 3, and make such order as it deems fit either confirming the declaration made in the notification or cancelling the same. The order so made by the Tribunal has to be published in the Official Gazette as required by sub-sec. (4) of the said section. The adjudicating Tribunal known as the Unlawful Activities (Prevention) Tribunal consisting of one person to be appointed by the Central Government is constituted as per the provisions of S. 5 of the Act. The person constituting the Tribunal has to be a Judge of the High Court. Sub-section (5) of S. 5 gives power to the Tribunal to regulate its own procedure in all matters arising out of the discharge of its functions. Sub-section (6) of the said section read with S. 9 vests the Tribunal with the power of the civil court as laid down in the Code of Civil Procedure for the purpose of holding the inquiry. Section 10 visits any person who is or continues to be a member of an association which is declared unlawful or takes part in the meeting of such association or contributes or receives or solicits any contribution for the purpose of such association or in any way assists the operations of such association, with punishment of an imprisonment for a term which may extend to two years, and also with fine. Section 11 likewise imposes a penalty for dealing with the funds of such association while S. 13 imposes punishment on any one who takes part in or commits, or advocates, abets, advises or incites the commission of any unlawful activity in any way, of such association. It is not necessary to refer to any other provision of the Act for our present purpose.
(3.) The impugned notification reads as follows : "Whereas Shri Sirajul Hasan, Amir of the Jamaat-e-Islami Hind [hereinafter referred to as JEIH] declared in a meeting at Delhi held on the 27th May, 1990 that the separation of Kashmir from India was inevitable; And whereas Shri Abdul Aziz, Naib-Amir of JEIH, addressing a meeting at Malerkotla on the 1st August, 1991, observed that the Government of India should hold plebiscite on Kashmir; And whereas JEIH has been disclaiming and questioning the sovereignty and territorial integrity of India; And whereas for all or any of the grounds set out in the preceding paragraphs, as also on the basis of other facts, and materials in its possession which the Central Government considers to be against the public interest to disclose, the Central Government is of the opinion that the JEIH is an unlawful association; Now, therefore, in exercise of the powers conferred by sub-section (1) of section 3 of the Unlawful Activities [Preventional] Act, 1967 (37 of 1967, the Central Government hereby declares the Jamaat-e-Islam Hind to be an unlawful association, and directs, in exercise of the powers conferred by the proviso to sub-section (3) of that section, that this notification shall, subject to any order that may be made under Section 4 of the said Act, have effect from the date of its publication in the Official Gazette." It is apparent from the notification that no additional reasons have been given for declaring the JEIH as an unlawful association with immediate effect, viz., from the date of the publication of the notification. In other words, the Central Government does not give any further or added reasons for immediacy. On the contrary, it relies on the same reasons which are stated in the notification for taking immediate action under the proviso to sub-section (3) of Section 3 which prompted it to declare JEIH as unlawful under sub-section (1) of Section 3. Before us also, it is not the case of the Union of India that it has some facts and material in its possession to declare it unlawful with immediate effect in addition to the facts and material for taking action against JEIH under sub-section (1) of Section 3. The question, therefore, is whether the Central Government has to have facts and material showing the need for immediate action under the proviso to sub-section (3) of Section 3 which are in addition to and distinct from those which are necessary for taking action under sub-section (1) of Section 3. We may here reproduce sub-sections (1, (2) and (3) of Section 3. They read as under : "(1) If the Central Government is of opinion that any association is, or has become, an unlawful association, it may, by notification in the Official Gazette, declare such association to be unlawful. (2) Every such notification shall specify the grounds on which it is issued and such other particulars as the Central Government may consider necessary. Provided that nothing in this sub-section shall require the Central Government to disclose any fact which it considers to be against the public interest to disclose. (3) No such notification shall have effect until the Tribunal has, by an order made under Section 4, confirmed the declaration made therein and the order is published in the Official Gazette : Provided that if the Central Government is of opinion that circumstances exist which render it necessary for that Government to declare an association to be unlawful with immediate effect, it may, for reasons to be stated in writing, direct that the notification shall, subject to any order that may be made under Section 4, have effect from the date of its publication in the Official Gazette." An analysis of the aforesaid provisions shows that for the purpose of declaring an association unlawful, the Central Government has to have material on the basis of which it forms its opinion that the association is or has become unlawful. The declaration is to be made by a notification. Such a notification has to specify the grounds on which the declaration is made and also such other particulars as the Central Government may consider necessary. The proviso to sub-section (2) of Section 3 only enacts the usual privilege clause which entitles the Central Government not to disclose such fact as it considers to be against the public interest to disclose. The main provision of sub-section (3) then makes it clear that such a notification shall not have effect until the Tribunal after a due adjudication has confirmed the notification. As pointed out above, there is enough time-lag between the date of the issue of notification under Section 3(1) and the date of the publication of the order of the Tribunal under Section 4(4). The proviso vests the Central Government with a power to declare an organisation unlawful with immediate effect. This means that all its activities come to an end the moment the notification is issued under Section 3(1) even without waiting for the due adjudication of the Tribunal under Section 4. It has obviously a situation in mind which cannot brook delay and await the outcome of the adjudication. The proviso, therefore, envisages a situation which has to be remedied urgently and cannot be met except by putting an end to the activities of the organisation with immediate effect. The legislative intention to that effect is also clear otherwise. The proviso requires firstly that the Government must be of opinion (i) that circumstances exist which render it necessary for the Government to declare the association to be unlawful with immediate effect and (ii) the reasons for such declaration must be stated in writing. The language of the said proviso is different from the language of sub-section (1) of Section 3 which merely states that the Government has to be of opinion that any association is or has become an unlawful association. The very fact furthers that the legislature has provided a machinery in the form of the Tribunal to hold a full-fledged inquiry to adjudicate on the issue whether the notification issued under Section 3 (1) should be confirmed or cancelled, shows that the legislature has no intention of banning an organisation and its activities without giving it a due opportunity to show cause and represent its case fully. It must be remembered in this connection that Article 19(1)(c) of the Constitution incorporates one of the precious freedoms of the citizens, viz., to form associations or unions. The provisions of the Act banning an organisation with immediate effect without giving it an opportunity to represent its case would be violative of the Constitution being in breach of the provisions of the said Article, unless such ban has been covered by the exception enacted by clause (4) of the said Article. It cannot be over-emphasised that the invocation of the proviso to sub-section (3) of Section 3 has a drastic effect of curtailing the reasons under Article 19(1)(c) with immediate effect. If such a ban is imposed arbitrarily it would operate till at least the date of the publication of the Tribunals order under Section 4(4). Thus the action taken under the proviso amounts to suspension of the citizens right under Article 19(1)(c, for the period in question. Even a temporary suspension of the fundamental right, unless it is covered by the exception provided under Article 19(4, would be invalid in law. Hence it is necessary that the Central Government justifies its action under the said proviso by bringing it within the exception of Article 19(4). Thus both by the language of the said proviso as well as by the requirement of the Constitution, it is necessary for the Central Government to justify by adducing proper reasons, the immediacy by bringing it within the purview of Article 19(4) which reads as follows : "19. Protection of certain rights regarding freedom of speech, etc.- x x x x x x x x x x x x (4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in the interests of the soyereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause". Article 19(4) thus requires that the immediate action contemplated by the said proviso is "in the interests of the sovereignty and integrity of India or public order or morality". The Article further requires the restrictions imposed even for the said purpose, to be reasonable. ;