Fugitive Cannot Maintain Article 32 Petition: SG Objects To Zakir Naik's Plea In Supreme Court

The Supreme Court on Wednesday (October 16) heard the writ petition filed in 2013 by Islamic preacher Zakir Naik seeking the clubbing of multiple FIRs registered against him in Maharashtra and Karnataka for hate speech under section 153A (promoting enmity between different groups on ground of religion etc., and doing acts prejudicial to maintenance of harmony.) of the IPC.

Solicitor General Tushar Mehta, for the State of Maharashtra, raised objection regarding the maintainability of the petition, stating that Naik, as a declared fugitive by court order, cannot seek the remedy under Article 32 of the Constitution.

“I would wish to raise a preliminary contention that a person who has declared a fugitive by the. court of law, can he maintain Article 32 petition?” Mehta stated.

A bench of Justice Abhay Oka, Justice Ahsanuddin Amanullah and Justice Augustine George Masih allowed the State to file a counter affidavit to raise this objection.

“Counter is ready, you raise that objection…You are saying that you are raising objections regarding maintainability. Raise that objection by filing a counter. We will look into it”, Justice Oka said.

During the hearing, the bench inquired about the status of the cases filed against Naik. Senior Advocate Aditya Sondhi for Naik said that there are 43 cases in total.

SG Mehta mentioned that he was under the impression that Naik was withdrawing the petition.

While Sondhi said that he had no such instructions regarding the withdrawal, the advocate on record explained if the court granted liberty, Naik might approach the concerned High Courts for quashing instead of troubling the Supreme Court, as six FIRs remain pending—four in Maharashtra and two in Karnataka.

Justice Oka said, “We will keep it for hearing... we wanted to know what is the status, whether final reports are filed or not.”

The SG informed the bench that a stay had been granted on the proceedings in 2013, and that an affidavit was ready, but had not been filed due to the defects in the petition. SG Mehta reiterated Naik's fugitive status and stressed that Naik, as a fugitive, could not give instructions.

He pointed out that the petition is defective as per the registry, and there are objections such as the absence of the petitioner's signature. He asked that the defects be removed from the petition first.

However, the Court made it clear that it was not waiving any objections raised by the registry and instructed SG Mehta to file his counter

“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. Hundreds of cases we hear which are in defective category. We grant relief also.”

SG Mehta also requested the Court to seek an affidavit from Naik on whether he intends to withdraw the petition.

The court has kept the matter be heard on next Wednesday, allowing the respondents to file a counter-affidavit in the meantime.

Zakir Naik has been under investigation by the National Investigation Agency (NIA) and Enforcement Directorate (ED) for several years. He faces charges under Section 153A of the IPC for promoting enmity between different religious groups and under Sections 10, 13, and 18 of the Unlawful Activities (Prevention) Act (UAPA).

A special NIA court in Mumbai issued a non-bailable warrant against Naik in 2017. Naik has failed to appear before the court and is reportedly living in Malaysia.

In 2022, the Central Government declared Naik's Islamic Research Foundation (IRF) as an unlawful association under the UAPA. A one-member tribunal, headed by Justice DN Patel, confirmed the ban in March 2022, citing that IRF's activities were prejudicial to the sovereignty, unity, and security of India.

Case no. – WP (Crl.) No. 99/2013

Case Title – Zakir Abdul Karim Naik v. State of Maharashtra and Ors.