The Supreme Court has agreed to urgently hear a PIL seeking independent, credible and impartial investigation by a Special Investigation Team (SIT) into the ‘Dharam Sansad’ that took place between December 17 and December 19, 2021 in Haridwar, Uttarakhand and the other one in Delhi organised by ‘Hindu Yuva Vahini’. The Petition has been filed against the Ministry of Home Affairs (MHA), Delhi’s Commissioner of Police, Delhi and the Director General of Police (DGP) of Uttarakhand.
The petitioners include journalist Qurban Ali and former Judge of Patna High Court and senior Advocate at Supreme Court, Ms. Anjana Prakash. Mr. Kapil Sibal, Senior Counsel, appeared for the petitioners before the bench led by CJI NV Ramana and submitted that even though FIRs have been filed in the case, no arrests have yet been made and this warrants the top court’s intervention.
“We are living in times where slogans of ‘Shastrameva Jayate’ are being raised,” submitted Sibal while urging the bench to urgently take up the matter. The CJI asked whether any inquiry was going on the matter to which Sibal submitted that FIRs have been lodged but no arrests have been made after which the CJI agreed to take it up.
At the Haridwar conclave, several speakers including so-called religious leaders along with hardline fundamentalists exhorted mobs to targeted violence and even directly called for a genocide of the minority community. At the Delhi event, Sudarshan News editor-in-chief administered an oath to a group of people to “die for and kill” to make India a “Hindu rashtra” or a Hindu nation.
The persons who took part in Haridwar’s ‘Dharam Sansad’ and delivered hate speech and calls for genocide include (but not limited to):
Swami Prabodhanand Giri, president of Uttarakhand Hindu Raksha Sena
Yati Narsinghanand, Head Priest Dasna Devi temple
Sadhvi Annapurna aka Pooja Shakun Pandey, general secretary Hindu Mahasabha
Swami Sagar Sindhu Maharaj from Roorkee
Dharam Das Maharaj from Patna, among others.
On December 23, the Uttarakhand Police filed an FIR in the matter, but had initially named only Wasim Rizvi as an accused and had invoked section 153A (Promoting enmity between different groups on grounds of religion) and 295A (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the IPC. After a few days, other names including Sant Dharamdas Maharaj, Sadhvi Annapoorna alias Pooja Shakun Pandey, Yati Narsinghanand and Sagar Sindhu Maharaj were added in the FIR. However, no arrests have been made yet.
In Delhi, a complaint was filed on December 27 against Chavhanke for his hate speech.
On December 31, theHaridwar event organisers announced their future plans to hold similar events in Aligarh and Kurukshetra and circulated earlier hate speeches as promotional videos for the same. Thereafter, another FIR was lodged on January 3 against Wasim Rizvi, Yati Narsinghanand, Sant Dharamdas Maharaj, Sadhvi Annapoorna alias Pooja Shakun Pandey, Sagar Sindhu Maharaj, Swami Anand Swaroop, Ashwani Upadhyay, Swami Prabodhanand Giri, Dharamdas Maharaj, Premanand Maharaj amongst others.
The petitioners have sought directions to the police authorities to comply with the guidelines laid down by it in Tehseen Poonawalla v. Union of India (2018) 9 SCC 501 and to consequently define the contours of ‘duty of care in investigation’ to be undertaken by the police authorities, reported LiveLaw.
The plea points out that no substantive action has been taken by either Uttarakhand or Delhi Police in the matter. While the former has registered FIRs and not arrested a single accused, the latter has not even registered FIR.
Further, the FIRs lodged miss out on invoking important offences like section 120B (criminal conspiracy), 121A (conspiracy to wage war against Government of India) and 153B (Imputations, assertions prejudicial to national-integration) of the IPC.
The petitioners have alleged that the inaction on the part of the police only fosters the belief that the authorities are hand in glove with the perpetrators, reported LiveLaw. The plea further states that the speeches thus made pass the ‘spark in a powder keg’ test as the Supreme Court had held in Ragarajan v. P. Jagjeevan Ram and Ors. (1989) 2 SCC 574.
The petitioners further state that the calls for genocide made in the speeches are in violation of the Convention on Prevention and Punishment of the Crime of Genocide to which Indian is a signatory. Article 1 of the Convention states:
“The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”
They also state that police authorities are confusing hate speech with dissenting speech in violation of the ratio in Amish Devgan v. Union of India, 2020 SCC OnLine SC 994, Pravasi Bhalai Sangathan v. Union of India (2014) 11 SCC 477 and also the Law Commission’s 267th Report.
‘Duty of care’ of police
The petitioners have pointed towards some specific guidelines issued by the apex court in the Tehseen Poonawala case which need to be followed by the police. In this case, the court specifically recognised a ‘duty of care’ owed in relation to hate crimes by holding that:
“We may emphatically note that it is axiomatic that it is the duty of the State to ensure that the machinery of law and order functions efficiently and effectively in maintaining peace so as to preserve our quintessentially secular ethos and pluralistic social fabric in a democratic set-up governed by rule of law.”
Some specific guidelines issued are as follows:
• The appointment of a designated nodal officer, not below the rank of Superintendent of Police for taking measures to prevent prejudice-motivated crimes like mob violence and lynching.
• If an incident of lynching or mob violence comes to the notice of the local police, the jurisdictional police station shall immediately lodge and FIR, without any undue delay, under the relevant provisions of law.
• It shall be the duty of the Station House Officer, in whose police station such FIR is registered, to forthwith intimate the Nodal Officer in the district who shall, in turn, ensure that there is no further harassment of the family members of the victim(s).
• Investigation in such offences shall be personally monitored by the Nodal Officer who shall be duty bound to ensure that the investigation is carried out effectively and the charge- sheet in such cases is filed within the statutory period from the date of registration of the FIR or arrest of the accused, as the case may be.
• There should be a scheme to compensate victims of such prejudice-motivated violence.
• Wherever it is found that a police officer or an officer of the district administration has failed to comply with the aforesaid directions in order to prevent and/or investigate and/or facilitate expeditious trial of any crime of mob violence and lynching, the same shall be considered as an act of deliberate negligence and/or misconduct for which appropriate action must be taken against him/her and not limited to departmental action under the service rules. The departmental action shall be taken to its logical conclusion preferably within six months by the authority of the first instance. [Emphasis Supplied]. It is submitted that this ‘punitive guideline no. i)’ crystalizes the ‘duty of care’, as it has also evolved in other jurisdictions.
• In terms of the ruling of this Court in Arumugam Servai v. State of Tamil Nadu [(2011) 6 SCC 405], the States are directed to take disciplinary action against the concerned officials if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident has already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.
Apart from the above case, the police also have a constitutional ‘duty of care’ in conducting a fair investigation, recognized under Articles 14 and 21 of the Constitution as held by the Apex Court in Pooja Pal v. Union of India (2016) 3 SCC 135.
The petitioners also cited to state that the Apex Court has recognised ‘hate speech’ as a violation of Articles 14, 15 and 21of the Constitution. Further, in the Amish Devgan case, the Supreme Court held that hate speech violates unity, fraternity, and human dignity.
The Petition may be read here: