Isabella Mariam

The High Court of Delhi, Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela held that a writ petition challenging an order of the Unlawful Activities (Prevention) Tribunal is maintainable under Article 226 of the Constitution but not under Article 227. The Court clarified that the Tribunal’s functions under the Unlawful Activities (Prevention) Act cannot be equated with those of a civil court. It explained that the Tribunal’s role is confined to examining whether sufficient cause exists for the Central Government’s declaration of an association as “unlawful,” rather than adjudicating a lis between parties as a civil court does. Accordingly, the Bench affirmed its jurisdiction under Article 226 to judicially review the Tribunal’s confirmation order.

The petitioner, an association declared “unlawful” by a notification of the Ministry of Home Affairs under Section 3(1) of the Unlawful Activities (Prevention) Act, 1967, approached the Delhi High Court challenging the order of the Unlawful Activities (Prevention) Tribunal that had confirmed the said declaration under Section 4 of the Act. The challenge was brought under Article 226 of the Constitution seeking a writ of certiorari to set aside the Tribunal’s order.

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The Union of India raised a preliminary objection to the maintainability of the petition, contending that the Tribunal, being presided over by a sitting High Court Judge and functioning as a civil court under Section 5 of the Act, is not amenable to writ jurisdiction under Article 226. It was further argued that a writ cannot lie against a judicial order and that supervisory jurisdiction under Article 227 is also inapplicable as the Tribunal is not subordinate to the High Court.

The petitioner opposed these submissions, relying on prior decisions, including Visuvanathan Rudrakumaran v. Union of India, and on an order of the Supreme Court that had directed the petitioner to approach the High Court under its constitutional writ jurisdiction. The petitioner maintained that judicial review under Article 226 cannot be excluded, as the Tribunal’s order involves confirmation of executive action rather than adjudication of a civil dispute.

The Bench examined Sections 2, 3, 4, 5, 7, and 9 of the Unlawful Activities (Prevention) Act to analyze the nature and powers of the Tribunal. It observed that while the Tribunal possesses limited powers akin to those of a civil court for specific procedural purposes, its primary function is to assess whether there is sufficient cause to uphold the Government’s declaration of an association as unlawful.

The Court recorded that the Tribunal’s role under the Act differs from that of a civil court deciding a lis: “the function of the Tribunal is, in a way, to confirm the declaration made by the Central Government under Section 3(1) of the Act.” The Bench observed that while the Tribunal is vested with certain powers of a civil court under Section 5(6), “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.”

On the scheme of the Act, the Court stated that “any declaration made by the Central Government under Section 3 of the Act will not have effect until the same is confirmed by the Tribunal by passing an order which is to be published in the Official Gazette.” Even where immediate effect is directed, the Court recorded that such notification is “subject to any order that may be made under Section 4 by the Tribunal.” The Bench elaborated that “any declaration made by the Central Government under Section 3(1) attains finality only on confirmation of such notification by the Tribunal under Section 4 of the Act.”

The Court stated that “we need to distinguish the Tribunal from the civil court” and, after summarising reasons, recorded: “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 Bench further observed: “under the Act, the Tribunal does not decide a lis between the parties, though it discharges adjudicatory function as per the requirement of Section 4 of the Act.”

The Court stated: “Sub-section (6) of Section 5 of the Act does not provide that the Tribunal will have all the powers as are vested in a civil court under the Code of Civil Procedure, 1908.” It added that proceedings are deemed judicial only within the meaning of specific penal provisions, and the Tribunal is deemed to be a civil court only for limited purposes: “such proceedings are judicial proceedings only within the meaning of Section 193 and 228 of the Indian Penal Code, 1860 and the Tribunal is to be treated as civil court for the purposes of Section 195 of the Code of Criminal Procedure, 1973, alone.”

On the question of remedy and forum, the Court referenced the Supreme Court’s order dated 6 November 2023: “In our opinion, the constitutional writ jurisdiction of the High Court ought to be the forum to which the petitioner should have approached first.” The Bench noted that, in this backdrop, “we have no hesitation to hold that the instant petition is maintainable under Article 226 of the Constitution of India.” The Court also stated that holding otherwise would render the petitioner remediless given the Supreme Court’s relegation to the High Court’s writ jurisdiction.

The Court observed: “the Tribunal cannot be termed to be an entity over which this Court can exercise superintendence in terms of Article 227 of the Constitution of India, for the simple reason that the Tribunal is presided over by a sitting High Court Judge and that in terms of Section 5(5) of the Act, the Tribunal has the powers to regulate its own procedure in all matters including the place or places where it may hold its sittings.” The Bench added: “If the Tribunal is empowered to hold its sitting outside the territories of Delhi, holding that this Court will have the power of superintendence under Article 227… will be nothing but a fallacy.”

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The Bench concluded: “we have no hesitation to hold that the instant petition is maintainable under Article 226 of the Constitution of India. Thus, we hold that the petition against the order passed by the Tribunal is not maintainable under Article 227 of the Constitution of India. We hold that this Court has jurisdiction to entertain and maintain a petition under Article 226 of the Constitution of India against the order of the Tribunal passed under Section 4 of the Act. We, thus, hold the instant petition to be maintainable.”

“Issue notice to the respondent, on whose behalf Sh. S.V. Raju and his associates have put in an appearance and accepted notice. Let the counter affidavit be filed by the respondent within a period of 06 weeks. Two weeks’ time shall be available to the petitioner to file the rejoinder, if any.” The Bench then fixed a return date: “List on 20.01.2026.”

Advocates Representing the Parties
For the Petitioners: Mr. Satyakam, Adv.; Mr. Talha Abdul Rahman; Mr. Shaikh Saipam; Mr. Arif Hussain; Mr. A. Nowfal; Mr. Sudhanshu Tewari; Mr. Sanu Muhammad; Mr. Mansoor Ali, Advs.

For the Respondents: Mr. S.V. Raju, ASG; Ms. Sonia Mathur, Sr. Adv.; Mr. Rakesh Kumar, CGSC; Mr. Annam Venkatesh; Ms. Sairica Raju; Mr. Ankit Bhatia; Ms. Manasi Sridhar; Mr. Labh Mishra; Ms. Shubhi Bhardwaj; Mr. Sunil; Mr. Hitarth Raja; Mr. Shounik Chowdary; Ms. Aditi Andley; Mr. Aryansh Shukla, Advs. for UOI.

Case Title: Popular Front of India v. Union of India
Case Number: W.P.(C) 15810/2023 with connected applications
Bench: Chief Justice Devendra Kumar Upadhyaya, Justice Tushar Rao Gedela