Sanatan can be banned with NIA chargesheet

By Cleofato A Coutinho
19 May 2010 19:03 IST

The filing of the chargesheet against 11 members of the Sanatan Saunstha  (including the two dead) into the incident involving the Diwali eve Bomb Blast at Margao, by the National Investigation Agency has set a debate on whether Sanatan has been indicted. While some hold the Sanatan is responsible in view of all its members being arraigned as accused while the Sanatan itself claims that their stand of innocence has been vindicated.

It must be kept in mind that a National Investigation Agency was investigating the incident and have filed the chargesheet in respect of the incident. At this stage, except the statement of the special public prosecutor, nothing is known as the chargesheet is kept confidential.

However it has to be kept in mind that the NIA was investigating into the scheduled offences as defined under the amended Unlawful Activities (Prevention) Act 1967. It may be that the NIA has not been in a position to bring home evidence in respect of any conspiracy by the Sanatan. But filing of the chargesheet against the 11 members of the Sanatan, in no way, grants a clean chit to the Sanatan but in fact points a needle of suspicion towards it. It is not even known whether the NIA investigated the role of Sanatan.

The demand to ban Sanatan had gained momentum after the Diwali eve Margao Bomb blast. Banning an organization is always a serious matter. Right to form association is a guaranteed fundamental right in as much as freedom of speech and expression or right to settle and reside anywhere in the country. No doubt restrictions including banning an organization can be made based on limited grounds of ‘sovereignty and integrity' of a country, public order and morality.

The Unlawful Activities (Prevention) Act 1967 permits declaration of association as unlawful. Once the association is declared unlawful, use of funds by such unlawful organization can be prohibited. Being a member of such unlawful association is punishable that amounts to a ban on the association. Declaration of an association being unlawful can be made by the central government only by issuance of a notification, which takes effect only after declaration is confirmed by sitting a High Court Judge headed tribunal. This tribunal can confirm the declaration only after issuance of a show cause notice and conducting an inquiry into the matter.

Under the unlawful activities (prevention) Act, the unlawful activity is defined under Sec. 2(O) and -Unlawful association means any association (i) which has for its object any lawful activity, or which encourages or aids persons to  undertake any lawful activity, or of which the members undertake such activity; or (ii) which has for its object any activity which is punishable under section 153A or section 153B 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; as defined under the Act or undertake activity punishable or spread of enmity amongst communities under Sec. 153(A) IPC and offence under 153(B) pertaining to national integration.

The most important aspect to note is that an association can be declared unlawful if its members undertake unlawful activities. The definition of unlawful association clearly includes, besides the association undertaking unlawful activities, its members undertaking such activities. It may also happen that despite an organization or its members undertaking unlawful activities, the government takes a decision not to declare the association unlawful, since declaration of an association to be unlawful is a policy matter for the government of the day.

Looking at the Margao bomb blast case, the 11 accused are charged under scheduled offences to the National Investigation Agency Act 2008. The accused shall have to face the trial. In case the National Investigation Agency manages to bring home the guilt, the accused would be convicted. The amended Unlawful Activities (Prevention) Act 1967 has certain presumptions as to offence terrorist Act as defined in the amended Act of 2008. The status of evidence required to convict accused persons is certainly of higher value since criminal prosecution demands higher standard of evidence.

For the purposes of declaration of a association being unlawful by the government and the inquiry by the tribunal, the standard of evidence required would certainly not be of level as required in criminal cases, but there would have to be evidence of concrete materials of emergent and extraordinary circumstances for the government to formulate its opinion as to the association being unlawful.   

At this stage, when the contents of the chargesheet are not known, if the NIA has enough evidence to prosecute persons under scheduled offences, then the evidence to declare association unlawful on the ground that its members undertake such activities is certainly available. But it is the call the Central government has to take. The call shall have to be taken on consideration not only of the availability of evidence, but to what extent the Central government can go in pursuit of the ban.

In the wake of demolition of the Babri Masjid, the central government issued notification banning Vishwa Hindu Parishad, Rashtriya Swanyamsevak Sangh, Bajrang Dal, Islam Sevak Sangh and Jamat-e-Islam Hind. The tribunal upheld the ban on VHP but quashed the same against RSS and Bajrang Dal. The ban against VHP was renewed after two years, but was negatived by the tribunal. The ban against Jamat-e-Islam Hind was upheld by the tribunal, but set aside by the Supreme Court for lack of evidence.

The worth of the evidence gathered by the NIA is the matter based on which the central government shall have to take a call.

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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Previous Comments

Yes, same yardsticks should be applied to one and all and in that case all the parties in our country would have to be banned as many of the members of these parties are involved in various types of criminal and anti-national activities like corruption, nepotism, secret relationship with terror groups, rapes, drug trafficking, adulterating, etc,etc.etc.

Such demands are made only to divert the attention of the masses from the real issues facing the Nation like illegal mining, corruption , price rise, suicide by farmers, other numerous scandals by the politicians, sex related crimes, Naxal menace, Maoist violence etc. etc. It is the people who should understand this clever ploy and should not fall prey to this mean tactic!

- Vishwas Prabhudesai, loliem | 21 st May 2010 19:15

 

BAN Congress & NCP POLITICAL PARTIES FIRST:

Only because some members of Sanatan are suspected to be involved in Margao blast case; the organization cannot be held responsible for the same. If the critics want to go by rules then the Workers, Members, MLAs and MPs of Indian National CONGRESS PARTY and RASTRAWADI CONGRESS PARTY (NCP) are involved in offences like Rape, Corruption, MURDER, Sex scandals, Drug Mafia rackets, Organizing Riots ..... and such countless OFFENCES that affects sovereignty and integrity of the country. So First BAN THESE POLITICAL PARTIES.

- N K Naik, Panaji, Goa | 20 th May 2010 12:43

 

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