PFI ban: Delhi HC affirms jurisdiction over UAPA Tribunal order, says ‘will be anomalous’ if it can’t hear plea against it

Further, the division bench drew a distinction between the tribunal’s functions vis-à-vis those of a civil court.

The bench recorded in its order, “…it cannot be said that the Tribunal is vested with all the powers as are vested in a civil court under the Code of Civil Procedure, 1908”, but rather only has civil court-like powers for certain functions such as “summoning and enforcing attendance of witnesses, examining them, discovery and production of documents, taking of evidence on affidavits, requisitioning public record and issuing commission for examination of witnesses”.

“…functions assigned to the Tribunal under Section 4 of the Act cannot be said to be similar or akin to the functions assigned to a civil court under ordinary civil law,” the court reasoned while ruling that PFI’s appeal against the tribunal order is maintainable before the Delhi High Court.

The Centre had argued that since the Tribunal is a civil court presided over by a sitting judge of the high court, it will be deemed a civil court exercising judicial functions, and thus, a petition under Article 226 of the Constitution of India before the high court cannot stand against an order of the Tribunal.

It was also argued that Article 227 is “supervisory” in nature, and the provision cannot be used as an appellate jurisdiction to set aside a validly passed order.

Noting that provisions of the Act entail that a declaration made by the central government designating an organisation as ‘unlawful’ only gains effect upon confirmation by the Tribunal, the court reasoned that a challenge to the Tribunal’s order would also amount to a challenge to the Government of India’s declaration under Section 3(1) of the Act declaring the association as an unlawful association.

“It will, thus, be anomalous to hold that jurisdiction of this Court under Article 226 of the Constitution of India will not be available for issuing a writ of certiorari against the order of the Tribunal, though it will be available against the action of the Central Government taken by declaring an association to be unlawful under Section 3(1) of the Act,” the court held while dismissing the Centre’s argument that the high court did not have jurisdiction to hear such an appeal.

The Centre, through Additional Solicitor General S V Raju, had also argued that a judicial order or decision, as a tribunal’s order can be termed as, cannot violate fundamental rights, and thus, writ of certiorari will not be maintainable against such an order or decision.

Why the Centre banned PFI in 2022

The Centre had announced a ban on the PFI after the National Investigation Agency (NIA) and the Enforcement Directorate (ED) conducted searches at the houses and offices of its leaders across multiple states in September 2022. On September 27, 2022, the police in seven states detained or arrested over 270 individuals with alleged links to the PFI.

A gazette notification declaring a ban on the organisation was issued by the government on the next day.

The searches and subsequent detentions were based on allegations that PFI members are involved in organising terrorism camps and encouraging Muslim youth to join terror activities.

The notification issued by the Ministry of Home Affairs (MHA) imposing a ban on the PFI and its associate organisations, including the Rehab India Foundation and Campus Front of India, for five years, had cited several reasons, including that “the PFI and its associates or affiliates or fronts operate openly as socio-economic, educational and political organization but, they have been pursuing a secret agenda to radicalize a particular section of the society working towards undermining the concept of democracy and show sheer disrespect towards the constitutional authority and constitutional set up of the country”.