Fugitive Can't Maintain Article 32 Petition: Solicitor General Opposes Zakir Naik's Plea Before Supreme Court Seeking Clubbing Of Cases Against Him

In a Writ Petition filed before the Supreme Court by Islamic Research Foundation (IRF) trustee Zakir Naik, who is absconding, Solicitor General of India today argued, "A person who is declared a fugitive by the Court of law. How can he maintain an Article 32 petition?"

The Bench of Justice Abhay S. Oka, Justice Ahsanuddin Amanullah, and Justice Augustine George Masiah was hearing a 2013 petition filed by Naik, whereby he sought clubbing of multiple FIRs registered against him across the country. 

Solicitor General Tushar Mehta, appearing for the State of Maharashtra, informed the Bench that the state is prepared to submit its affidavit but was unable to do so earlier due to defects in Naik’s petition. Mehta contended, "I have instructions that they are withdrawing."

Mehta emphasized that Naik, who has been declared a "fugitive," faces procedural issues such as the inability to provide signatures on the petition. He also argued that someone declared a fugitive by law cannot maintain a petition under Article 32 of the Constitution.

Justice Oka queried about the status of the FIRs against Naik, seeking clarity on whether reports had been filed. The Bench also noted that a stay had been previously granted in 2013. Justice Oka observed, “Actually, now he (Naik) does not want to transfer the cases. He is seeking quashing.”

Senior Counsel appearing for Naik responded that the current petition seeks the clubbing of FIRs. He further submitted that a stay had been granted by the Court in 2013, and the defects in the petition are being addressed.

The Solicitor General insisted that the Counter Affidavit of the state can only be filed after the defect raised by the Registry is addressed. "Let them remove the objections", the SG submitted. 

"You are permitted to file Counter", Justice Oka said. 

"My Lord, the objections possibly can be that there is no signature of the Petitioner etc.", SG submitted.  

"When we direct, the Registry is bound to accept it (counter affidavit)", Justice Oka said. 

"A fugitive is unable to give his signature", the SG insisted.

"That's the objection you have to raise by filing Counter", Justice Oka said. 

"No No, the Registry has raised that objection. Can your Lordships waive that objection?", Tushar Mehta replied.  

"We are not waiving any objection. We are saying that since your Counter is ready, you file it. Registry will accept it. That's all we are saying", Justice Oka said. 

"My Lord, the case is in defective category", Tushar Mehta submitted. 

"Maybe. There are hundreds of cases we hear, which are in defective category. We grant relief also", Justice Oka replied. 

"Not My Lord, fugitives", Mehta responded. 

Mehta then submitted that the Petitioner should be asked to file an affidavit stating whether they wish to proceed with the matter or withdraw it since Mehta submitted that the AoR for the Petitioner had told him that the Petitioner wishes to withdraw the matter. 

Taking note of the submissions, the Court granted the State the liberty to file its counter-affidavit by the next hearing on October 23, 2024. The Court also said that the Petitioner can clarify whether he wishes to proceed with the matter on the next occasion. 

In a related news, in February 2022, a tribunal set up under the Unlawful Activities (Prevention) Act (UAPA) had directed Islamic Research Foundation (IRF) trustee Zakir Naik, who is absconding, to file a fresh vakalatnama through the Indian embassy in Malaysia after the verification of his signatures. The tribunal was conducting proceedings to consider the Centre's decision to declare the IRF as an unlawful association.

The tribunal had, on December 20, 2021, sought Naik's stand in the proceedings to consider the Centre's decision to declare the IRF as an unlawful association. Earlier, on November 15, 2021, the Centre had declared the IRF as an unlawful association for five years, saying it has been indulging in activities that are prejudicial to the security of the country and have the potential of disturbing peace and communal harmony and disrupting the secular fabric of the country.

"The central government is of the opinion that the IRF and its members, particularly the founder and president of the IRF, Dr Zakir Abdul Karim Naik, alias Dr Zakir Naik, has been encouraging and aiding its followers to promote or attempt to promote, on grounds of religion, disharmony or feelings of enmity, hatred, or ill-will between different religious communities and groups, which is prejudicial to the integrity and security of the country," the Ministry of Home Affairs said in its notification.

The Centre had emphasised that the statements and speeches made by Naik were objectionable, subversive, promoted hatred amongst different religious groups and inspired the youngsters of a particular religion in India and abroad to commit terrorist acts. The Centre had opined that if the unlawful activities of the IRF were not curbed and controlled immediately, it would continue with its subversive activities and re-organise its absconding activists, create communal disharmony, propagate anti-national sentiments, escalate secessionism by supporting militancy, and undertake activities that are prejudicial to the sovereignty, integrity, and security of the country.

"In exercise of the powers conferred by sub-sections (1) and (3) of section 3 of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), the central government hereby declares the Islamic Research Foundation (IRF) as an unlawful association and directs that this notification shall, subject to any order that may be made under section 4 of the said Act, have effect for a period of five years from the date of its publication in the Official Gazette," the Centre had stated.

Pursuant to section 5(1) of the Unlawful Activities (Prevention) Act, 1967, the Centre had, on December 13, 2021, constituted the tribunal "for the purpose of adjudicating whether or not there is sufficient cause for declaring the Islamic Research Foundation as an unlawful association.". The IRF was declared as an unlawful association in November 2016 and the same was confirmed by a UAPA tribunal in May 2017.

Cause Title: Zakir Abdul Karim Naik v. State of Maharashtra & Ors. [W.P.(Crl.) No. 99/2013]