Author: Ritik Sen, Hidayatullah National Law University, Raipur (C.G.)

Introduction

Banning a social or political organization by the executive is in conflict with the democratic ethos of a nation such as ours, where mobilizing people towards a cause and peaceful resistance to the government through associations is constitutionally guaranteed under Article 19(1)(c) of the Constitution. It is undisputed that such freedom to form associations is not absolute and could be curtailed on constitutionally envisaged grounds such as public order. The Courts are, however, duty-bound to strike a delicate balance between protecting public order and protecting legitimate and peaceful democratic dissent. Often, they have failed to strike such a balance and have unduly deferred to the executive in the name of “public order”. 

The recent decision of the Chhattisgarh High Court in Raghu Midiyami v. State of Chhattisgarh is such an instance of the fundamental rights being sacrificed in the name of public order, without scrutinizing the safeguards available against the abuse of the provisions. The decision pertains to the constitutional validity of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam 2005 (CSPSA/ The Act), and its invocation to ban the “Moolvashi Bachao Manch”. 

This article argues that the Act does not qualify as a reasonable restriction against the right granted under Article 19(1)(c) and the Court failed in its duty to test the Act on the anvil of constitutionality. 

Chhattisgarh Vishesh Jan Suraksha Adhiniyam (CSPSA)

This Act was brought by the Chhattisgarh Assembly in 2005, allegedly to increase efficiency while controlling the unlawful acts in the state. As per Section 2(e) of the Act, Unlawful Activities are acts, signs, visible representation, or words which disturb public order, administration of law, or peace. Section 3(1) If the government is satisfied that any group registered or not, is involved in unlawful activities may ban such groups. Without prejudice to the powers of the Supreme Court and High Court, such action cannot be challenged before any regular court, and hence, no injunction can be passed against such bans as per Section 14. Hence, limiting the role of the judiciary.  The government is not under any obligation to reveal the facts and reasons behind the ban if it thinks that keeping such information confidential would be in the public interest. Such a ban automatically applies for one year, which could be continued annually after review. There is a provision for an advisory body for review of such a ban, which consists of three members appointed by the government. 

An analysis of the Provisions of the Impugned Act

On a cursory examination of the provisions of the Act, it is clear that it has no safeguards against abuse and that it ignores the precedents of the Supreme Court that have limited the power of the executive to curtail fundamental rights in the name of “public order”. 

First, there is no provision for approval of the ban by a judicial body (Section 5 of CSPSA ), a provision that exists even in the infamous UAPA. As per Section 5 of CSPSA, there is no mandatory requirement for the appointed members to be part of the Judiciary. Hence, leaving the gap for executive arbitrariness. The restrictions on Freedom of Association under Article 19(1)(c) must be imposed only after scrutiny by an independent Judicial body. Such an inquiry will ensure that restrictions are reasonable and not arbitrary, and necessary to maintain public order, as emphasized by the S.C. in the case of V.G. Row v. State of Madras. 

Second, the advisory body’s independence is questionable. As per Section 5(1) of CSPSA, the body is constituted by the members appointed by the state government itself, and there is a huge scope for bias. Such vulnerability to bias renders the role of the board meaningless, as it cannot practically check the arbitrary executive decisions. Notably, the judiciary has no role to play in the appointment of an advisory body as opposed to UAPA, proviso of Section 5(1) of UAPA explicitly mentions that “no person shall be so appointed unless he is a Judge of a High Court”. Hence, the Judiciary has a role in checking the arbitrary actions of the Executive. 

Third, unless the body is independent, has judicial capacity, and its recommendation takes precedence over executive restrictions, the body won’t be able to serve the purpose for which it was made. 

Fourth, the Act does not provide an adequate opportunity for the affected to represent themselves before the advisory body. The non-disclosure of grounds and specific incidents for the ban deprives the petitioner of a fair opportunity to defend themselves, since the state can refuse to disclose the reason for the ban by citing “Public Interest” as per the proviso of Section 3(2) of the act. Such a wide ground leaves a legal loophole that could potentially be exploited by the government to avoid its accountability. 

Raghu Midiyami v. State of Chhattisgarh: An Illustration of Judicial Abdication

“Moolvashi Bachao Manch (MBM)” was banned, and subsequently notification of the ban was challenged by the President of that Organization. MBM is an organization in the Bastar region working for Tribal Rights at the ground level through peaceful means such as Jan Sabhas, awareness campaigns, and public gatherings. The petitioner argued that they opposed militarization on the false pretext of combating Naxalism and grave violation of autonomy granted to these areas under the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA) and Fifth Schedule on the part of the state.

Further, they argued that the grounds for the ban and arrest of its members have not been provided, in violation of the requirement set in the case of VG Row v. State of Madras. The ban notification had no reference to a specific incident that was considered unlawful in the state’s view. The State argued that the reason was “continuously opposing and instigating the general public against the development works” as given in the notification. As per the state, this act constituted interference with the administration of law. 

The High Court, while framing the issue of constitutionality of the CSPSA provisions as an issue, did not address it specifically. It based its decision on the specific circumstances of the case to say that, since review was pending before the advisory board, the petition was premature. Therefore, by refusing to answer the larger question of constitutionality, the Court effectively ruled in favor of the State, upholding the application of a law that is prima facie draconian and violative of fundamental rights, and one that goes against judicially evolved safeguards against abuse of power. The failure to apply a rigorous test on rights-curtailing legislation, such as the impugned legislation, was an act of judicial abdication, where the State emerged victorious without defending the provisions on the threshold of necessity and proportionality.

Conclusion

The decision of the High Court in the Raghu Midiyami case sets a dangerous precedent both procedurally and substantively. The Court abdicated its responsibility to ensure that the impugned legislation does not violate the fundamental rights of the aggrieved. It makes the exercise of fundamental rights subject to the determination of an advisory body constituted by the executive, with no binding powers. When the State suggests the existence of “public order” reasons not to disclose specific grounds of ban, it enquires no further and takes the claim at its face value. Most importantly, it fails to reason its decision by declaring the petition as premature, conveniently strengthening the arms of the state, and leaving the petitioners with no “effective” remedy.

REFERENCES 

1. Constitution of India Act, 1949.
2. Chhattisgarh Vishesh Jan Suraksha Adhiniyam (CSPSA), 2005.
3. Panchayats (Extension to the Scheduled Areas) Act, 1996.
4. V.G. Row vs The State Of Madras, AIR 1951 Mad 147.
5. The Unlawful Activities (Prevention) Act, 1967.