KK Luthra Moot
Registration

The-problem-for-the-year-2007

  1. Home
  2. The-problem-for-the-year-2007

The-problem-for-the-year-2007

PROBLEM

Statement of Facts

  • Throughout the 1990s and well into this decade, a series of violent incidents, labelled by the media as ‘terrorist strikes’, erupted across India. The incidents, usually caused by the explosion of devices in packed public areas, resulted in a heavy toll of life and limb. The incidents were at rallies of major political parties, sites of economic importance to India, during celebrations of important national holidays, cinema halls etc. No one claimed responsibility for these incidents. However, intelligence analysts speculated that only one group could be responsible, due to the distinctive nature of the modus operandi used in all the incidents.
  • In January 1997, during the aftermath of yet another violent bomb attack in New Delhi killing, over 90 people and injuring several hundreds more, investigators found a videotape of three young men and two young women addressing a group of youth on the setting up of a parallel government in parts of India by any means and with the use of violence and bomb attacks. The speeches centred on corruption and criminalization of the present political class along with lack of respect given to youth within the political decision-making process. The group discussed ways and means to generate public support for a movement to eradicate corrupt politicians, immoral public personalities and to ensure total non-cooperation with the present socio-political set up.
  • One of the speakers, identified by another speaker as ‘Kanu’, declared that violence in public areas, including random acts of terrorism, was the easiest means to gain recognition by a group. He claimed for bomb attacks in public places across India, and indicated that he would be responsible for a bomb attack in New Delhi in January 1997. The discussion finally ended with a resolution to ‘free India from neo-colonial and feudal structures’. In the backdrop, as seen in the videotape, a banner read ‘New Democratic Movement of India [NDMI]’.
  • Based on the videotape, secret intelligence, and investigations conducted by the Central Bureau of Investigation, the Central Government, vide Notification No. SO 945A dated 24.06.1997, banned the NDMI under Section 3(1) of the Unlawful Activities (Prevention) Act, 1967 [“the Act”]. As per the mandate of the Act, a tribunal was set up, headed by a sitting High Court Judge, under Section 4(1) of the Act, which examined the material set forth by the Central Government and passed an order on 28.08.1998, declaring the NDMI to be an unlawful association. The order passed was ex-parte, as no one came forward to defend the NDMI, despite notices published in national and vernacular newspapers. The ban on the NDMI was extended in 1999, 2001, 2003 and in 2005. All the orders passed by successive Tribunals were ex-parte and based on verbatim reproductions of Notification No. SO 945A dated 24.06.1997. The evidence cited in each order was based on material present before the Tribunal and was based on material collected by the CBI in January 1997. Throughout the course of these proceedings against the NDMI, the violence continued unabated, and in fact intensified in some regions.
  • Even till 2004, despite intensive efforts to eliminate the threat posed by NDMI, there was no respite from the violence, and instead the distinctive bomb attacks began spreading to rural areas as well. After a series of NDMI attacks in the Mondregaon area of the newly carved State, Batisgarh, people stopped paying taxes to local revenue authorities and began leaving government posts en masse. Rumours of the creation of a parallel government in Mondregaon began spreading in the electronic media which were denied by the Central and State governments. However, in a speech delivered on 26.01.1999, the Prime Minister stated that NDMI was a threat to internal security and national integrity.
  • In 1998, a political party based in Mondregaon, the PWHP, rose to prominence in national politics. The PWHP was founded by five IIT students in 1989 and was conceived as a democratic organization. As per its Constitution, only graduates with integrity, good character and imbibed with a spirit of service to humanity could be enrolled as members. Members were usually between the ages of 18 and 35 and were vocal in their opposition to issues such as corruption, criminalization of politics and picturization of women in popular media. By 2004, members of the PWHP had played sterling roles in disaster relief, eradicating illiteracy in parts of India, working on micro-credit schemes etc and had won national and international acclaim as social workers. Ms. Margaret Zelle @ Zooey and Mr. Kanu Pal were among the popular leaders of the PWHP.
  • In their 2004 election manifesto for the Lok Sabha elections, the PWHP declared that the incumbent Government’s failure to address issues like corruption, criminalization of politics, and lack of representation of youth in the political process had resulted in a total breakdown of the social system at heavy cost to the State. The PWHP hinted that the violent attacks, including the bomb attacks, on the socio-political setup for over a decade had been a result of this failure and promised swift retribution under law to those politicians found to be corrupt or with established criminal backgrounds. The legal cell of the PWHP had launched a sustained campaign of filing PILs before the Supreme Court and various High Courts across India against politicians indulging in corrupt practices. These included several high profile Ministers and Members of Parliament of the Indian Nationalist Party, who had been in power at the Centre for over twelve years. The said Ministers and Members of Parliament were forced to resign. National opinion polls conducted by the media showed a strong undercurrent of support to the PWHP, especially when Mr. Pal was portrayed as the leader of a secular national coalition and polls predicted an almost certain defeat for the coalition headed by the Indian Nationalist Party.
  • In February 2004, an article written by a former President of the Indian Nationalist Party appeared in all major newspapers demanding to know the links between the PWHP and NDMI. On 09.03.2004, based on secret information, the Central Government issued Notification No. SO 419L under Section 3(1) of the Act, declaring the PWHP to be an unlawful association, and a Tribunal headed by a sitting High Court Judge was set up in terms of Section 4(1) of the Act. The notification met with nationwide public outrage against the Indian Nationalist Party, and a national bandh was organized by the PWHP on 12 March 2004. Undeterred, the Tribunal began its proceedings. A team of lawyers represented the PWHP in the proceedings before the Tribunal.
  • As a part of the run up to the elections, on 29.03.2004, a special programme was broadcast on a national news channel, InYerFace News. The programme discussed Notification No. SO 419L and possible links between the NDMI and the PWHP. IYFN revealed that Ms. Margaret Zelle @ Zooey of PWHP had secretly videotaped an undated one-on-one conversation with Mr. Pal, wherein Mr. Pal had freely declared that the PWHP and the NDMI had the same ideological background, and that the PWHP supported the NDMI. He appeared to state that the loss of life and limb due to NDMI activities was ‘tragic yet justified collateral damage in the people’s war to sustain democracy in a country run by crooks’. In the interest of ‘larger national interests’, Ms. Zelle @ Zooey had handed over the tape to IYFN and had now joined the Indian Nationalist Party as its Youth Wing President.
  • On the next day, i.e. 30.03.2004, the PWHP General Council held an emergency meeting and Mr. Pal was expelled from the party for making statements without due authorization by the General Council. Ms. Zelle @ Zooey was also expelled for anti-party activities. The PWHP issued a statement distancing itself from the statements and any alleged activities of Mr. Pal. Based on the videotape, FIR No. 272/2004 dated 30.03.2004 was registered at PS Greater Kailash, under Sections 121, 121A, 153A, 153B, of the IPC, read with Section 10 and 13(2) of the Act. During the course of investigation in FIR No. 272/2004, the investigating officer arrested Mr. Pal at the Indira Gandhi International Airport, while Mr. Pal was attempting to board an aircraft to Hong Kong, en route to Beijing. Mr. Pal denied making the statements attributed to him.
  • Based on searches conducted at the office and residence of Mr. Pal, bank statements of several accounts belonging to Mr. Pal and PWHP were seized. Investigators found that a week prior to each of the violent bomb attacks in which the NDMI had been suspected, large cash withdrawals had been made from one or the other account. Further, quarterly payments of US$500,000/- were received through an account in the Cayman Islands. All the bank accounts were frozen and Section 11 of the Act was also invoked against the accused persons. Videotapes and CDs were found in a safe, where Mr. Pal appeared to address an assembly of NDMI cadres. A truck leased to the PWHP was recovered that contained pamphlets espousing the NDMI cause, with the PWHP logo and the NDMI logo shown on the same pamphlet. Resultant searches of PWHP offices across India resulted in large amounts of unaccounted cash and tools for preparation of propaganda material.
  • The sensational events of March 2004 resulted in the Indian Nationalist Party sweeping the polls in April-May 2004, and the Party won a two-thirds majority in Parliament. One of the first acts of the new Government was to issue Notification No. SO 793V dated 30.06.2004, declaring the PWHP to be an unlawful association with immediate effect. During final arguments before the Tribunal, counsel for the Central Government conceded that Notification No. SO 419L had been issued on the basis of material collected in the 1997 investigation into the NDMI. The Central Government claimed privilege on the grounds on which Notification No. SO 793V dated 30.06.2004 was based. On 06.09.2004, the Tribunal passed an Order under Section 4(3) of the Act, declaring the PWHP to be an unlawful association. All the PWHP offices across the country were sealed.
  • The PWHP challenged the Order dated 06.09.2004 passed by the Tribunal under Article 226 of the Constitution of India before the High Court of Delhi in Writ Petition (Civil) 18-M52/2004, which, vide Order dated 20.01.2005 was dismissed. However, liberty was granted to approach the Supreme Court. The PWHP, inter alia, took the following pleas in SLP (Civil) No. 10-M013/2004 before the Supreme Court:
  • That the entire proceedings were a deliberate and malafide attempt to frustrate the legitimate democratic expression of the PWHP.
  • That the alleged acts of Mr. Pal could not be attributed to PWHP to declare PWHP as an unlawful association.
  • That Notification No. SO 419L had been issued by the Central Government without any material on record and hence in violation of procedure established by law.
  • That the Central Government could not rely upon material dating back to 1997, which had been the subject matter of four prior Tribunals under the Act relating to another organization without the name of the PWHP ever coming up in the said proceedings.
  • That the Central Government had no right to claim privilege on material without giving adequate reasons as to why privilege was being claimed.

The Supreme Court, vide Order dated 14.10.2005 dismissed the SLP filed by the PWHP in limine.

  • By February 2005, investigation in FIR No. 272/2004 was complete and a police report under Section 173 of the Cr.P.C. was filed against several persons, including Mr. Pal, senior leaders and members of the PWHP. A CFSL report, however, found the videotape to be a hoax and consequently Ms. Zelle @ Zooey retired from active politics and left for an undisclosed destination in the Porwhale Hills in North India. The trial is fixed for arguments on charge in February 2007. All the accused remain in custody.
  • The Central Government, w.e.f 05.09.2006, added the PWHP to the Schedule of the Act and thus declared it to be a terrorist organization. While proceedings initiated by the PWHP were pending under Section 36 of the Act, the Central Government, vide Notification No. SO 1922L dated 17.10.2006 declared the PWHP to be an unlawful association under Section 3(1) of the Act. The ban was given immediate effect vide Notification No. SO 1925L dated 17.10.2006. A Tribunal has been notified as per the Act and the PWHP has joined the proceedings under protest.
  • Aggrieved by the Notifications dated 17.10.2006, the PWHP has filed a Writ Petition before the Delhi High Court. In addition to urging grounds raised in Writ Petition (Civil) 18-M52/2004 and SLP (Civil) No. 10-M013/2004, the PWHP have raised the following grounds:
  • That the Union of India could not issue Notification No. SO 1922L dated 17.10.2006 and/or Notification No. SO 1925L dated 17.10.2006 under the Act.
  • That as per procedure established by law, the Union of India could not declare the PWHP to be both an unlawful association and a terrorist organization based on the same set of material. 
  • The Union of India have filed their reply and the matter is now fixed for final arguments. The Court has left open preliminary submissions relating to jurisdiction and maintainability.