SIMI and the Constitution

By V. R. Krishna Iyer

Preventive detention of a person is subject to Articles 19, 21 and 22. Associations of citizens enjoy the collective human right under Article 19 as a fundamental freedom of association. Arbitrary action against it is violative of Articles 14, 19 and 21. Discrimination in application offends Article 19. The right to form an association can be denied or suspended by the State only in the interest of sovereignty and integrity, public order or morality. Article 21, guaranteeing personal liberty, can be curtailed only if the conditions relied on are `just, fair and reasonable'.

All these propositions have Supreme Court support regardless of person, parties, religions and regions. The simple issue that springs from the ban on the Students Islamic Movement of India (SIMI) is whether it can stand constitutional scrutiny, if violative, it is void, apart from the judicial invigilation provided for in Article 22 by other law.

SIMI is prima facie communalist organisation with strong Islamic slant in its utterances. This vice, by itself, cannot validate a total ban without being guilty of totalitarian and ultra vires.. Fundamental rights are fundamental and cannot be wished away by governmental displeasure. Otherwise, the existence of all organisations will be precariously dependent on the whim of the party in power. The validity of subjecting SIMI to a banishment is liable to challenge from day one if personal liberty and associational freedom, which are paramount values, are flouted. Assuming that any one in power totally disagrees with the Islamic genre or propensity of SIMI, can it be put down? No, unless just, fair and reasonable grounds exist, coming within the mischief of the restrictive provisions.

Every person has a right to know why a group is governmentally suppressed since freedom of information is itself implicit in Article 19. In short, the reasons for clamping down a functional prohibition on SIMI is justifiable provided they rest on offending grounds and the grounds are brought within the ken of the public, which has the right to be informed about the `why' of the negation of the group right.

I do not defend in the least the SIMI. Nor do I, in the least, approve of its communal postures, if any. I am opposed to organised communalism in politics, but because I dislike it I cannot use State power to rob it of its right to existence unless its operations fall within the vice of Article 19 (3). Indeed, democratic disposition is tested by our tolerance of what we hate, if it does not breach constitutional bounds.

However, if SIMI poses a clear and present danger to national integrity, public order or offers other moral menace, it may attract the `prohibition' power of the State. A blanket ban blindly imposed is incompatible with constitutional liberalism. Since the Central Government, so far as I know (I may be wrong) has not through appropriate publicity to the public or the affected organisation, made out sufficient cause falling within the constitutional clauses, my juristic conscience protests. The proper thing for a fair administration, before exercising the extreme imposition, is to reveal the grounds sufficient to convince society that there is a case of violent or violative activity, which desiderates a death sentence on the freedom of association. SIMI may deserve complete manacle if it become a clear and present danger, not otherwise.

Moreover, SIMI is an organisation of the minority community and should not be blocked or blacked out unjustly lest there be panic based on minority discrimination. In such matters, an explanatory memorandum, not kept secret but publicly announced comports with constitutionalism. Human solidarity of a billion and odd Indians is of utmost gravity today and, therefore, anything done which is apt to disrupt the unity of the people, unless compelled, must be obviated. If the impugned body falls foul of the constitutional limitations, it deserves no compassion, whatever its communal or political colour. If the grounds fall short of the mandatory conditions, any ban by the authority will be authoritarian and bad in law.

Send this article to Friends by E-Mail

Section  : Opinion
Previous : A Prince Charming
Next     : Replacing Taliban: mixing diplomacy with force