Can an accused chief minister decide on whether or not he should be prosecuted for hate speech? No says the advocate for the petitioner, no man however powerful can be judge of his own cause
The Allahabad bench of the High Court today faces a piquant situation and will tomorrow (May 4) hear arguments and adjudicate on whether chief minister of Uttar Pradesh, Adityananth has the legal and moral right to decide whether or not sanction should be given to prosecute himself in a case of hate speech that led to widespread destruction of property and the life of a precious life way back in 2007.
Can a man, however powerful be judge of his own cause when we as a country are proud to believe that we are a society built on the edifice of the rule of law where the sovereign writ lies with the people?
The long arm of the law it is known to take its own course, a period during which political fortunes can change and persons hitherto accused of grave crimes then come to occupy high posts of constitutional governance. So it has been in India, increasingly as electoral politics assumes an aggressive and majoritarian hue. Today we have more than one chief minister, as also many in powerful positions in the state government with a similarly dubious record.
Under Section 196 of the Code of Criminal Procedure (CRPC), sanction to prosecute for offences of incendiary and inciteful speech (sections 153a and 295 of the Indian Penal Code is required from the government before criminal prosecution can begin. Even the First Information Report (FIR) for hate speech in this case was lodged only after the High Court passed an Order to the effect on September 26, 2008. Even this was challenged by co-processionist and fellow offender, Anju Chowdhury in the Supreme Court(SC) that finally on December --- 2012 affirmed the High Court order and passed significant observations on how a second FIR can be registered when aspects of the offence have not been captured in the original FIR registered by the police on the incident. Initially the Chief Judicial Magistrate(CJP) had rejected the application of Parvez Parvaaz on ground that the police had already registered on FIR invoking section 302 on six unknown persons. Both the High Court Order and Supreme Court order (that may be read here) are significant in terms of establishing legal precedents
In the present case, pending in the High Court since 2008, where the social activist petitioner had also prayed for transfer of investigation to an independent agency, the state government under Samajwadi Party scion, Akhilesh Yadav had, typically dragged its feet. The government came to power in April 2012 but it was only in 2015 that the state government finally gave a compliance report stating that investigations by CBCID had been completed but approval of higher authorities for further action had not yet been granted! In January 2017, months before the state went to the polls, the CBCID finally told the High Court that offences had been made out and the matter had been referred for sanction under section 196 to prosecute the accused persons under sections 153a and 295 of the CRPC.
Thereafter the matter came up on March 10 (just a day before the Holi break) and then on April 24 when again the state government advocate told the court sanction was awaited and that the Court was about to give directions to the state government to take a decision on whether it was according sanction or not under section 196. On the next date of hearing, April 28, 2017, advocate for the petitioner, Farman Naqvi strongly argued that no person, however highly placed can be judge of his own cause and hence urged the Court to assume the power of sanctioning authority under Article 226 of the Indian Constitution and adjudicate whether or not this is a fit case to prosecute the accused or not.
The Order of the High Court that may be read here reads,
"From a perusal of the record, it appears that the matter of sanction regarding prosecution of the accused persons is pending before the State Government and the question of grant of sanction for prosecution is to be decided by the Head of the State Government, who himself is a prime accused in the present F.I.R. lodged by petitioner no. 1.
As the said question which has crop up in the matter before this Court requires proper adjudication, learned counsel for the parties are directed to assist the Court in the matter on the next date fixed by placing legal proposition of law in the matter. Put up the matter for further argument on 4.5.2017."
The story begins in 2007, 27 January when prior to a Muharram procession, at a "Warning Meeting", Adityananth and other members of the Hindu Vahini and the elected officials of the Bharatiya Janata Party (BJP) were creating an intra-community polarisation through their speeches. A local citizen and social activist, Parvez Parvaaz passing by heard the speech of Adityanath when he said,
' if the blood of one Hindu be shed then they will not register any FIR with the administration against the bloodshed of one Hindu in the times to come, instead they will get ten persons (Muslims) killed. If damage is done to the shops and properties of Hindus, they would indulge in similar activities towards the Muslims. Anything can be done to save the glory of indus and all should prepare for a fight. Amongst others, it was also stated in the complaint as under:
Adityanath also stated that
'we will not allow lifting of Tazia anywhere in the Gorakhpur City and the Gorakhpur District and we will also celebrate our Holi with these Tazias. He stated that we will have to take harsh steps for the welfare of Hindus and we do not want that the generations to come remember us with bad names. He stated that I do not understand that we will be ready to take up those names, therefore, be ready to fight your final battle.
Adityanath was, shamefully a Member of Parliament when he uttered these words. He further said that 'once you stand up then you see that Gorakhpur will remain peaceful for many years. If the administration does not take revenge of the murder of the Trader’s son, then we will take ourselves, we will ourselves take revenge of that murder. Member of Parliament Yogi Aditya Nath, in his speech, termed the administration as worthless and eunuch and the incidents as Government sponsored terrorism and challenging the democratic Government he stated that they will destroy the law and order and will take law in their own hands."
He then also called for bandh of Gorakhpur and Basti Divisions and directed the activists to inform about this to every place through every media. Thereafter, Member of Parliament Yogi Aditya Nath led a torch procession and hundreds of activists along with above named persons participated and raised slogans in support of Yogi AdityaNath. In this procession, the slogan related to spreading of hatred against Muslims and sentiments of killing and harming them was being raised with primary importance, which was pronounced as
“Katuye Kaate Jayenge, Ram – Ram Chillanyenge”.
Indian Parliament did not censure or even pull him up, leave alone expel him for such incendiary speech. It was left to a citizen to move the Courts in a tortuous process culminating, now at a time the man in question heads the government of Uttar Pradesh.
The tragedy of Indian democracy that politicians and elected officials, who have held political office for decades --Adityanath is a five times MP from Gorakhpur--function with impunity, with utter and complete disregard for the law of the land. Until we are able to grapple with these loopholes in governance, it can neither be 'good' nor 'development' fruitful.