Relying on the continuing mandamus of the Supreme Court in the now well known Shaheen Abdullah case, order dated October 21, 2022 (in WP(C) 940/2022), wherein the state of Uttarakhand was specifically directed to “ensure that immediately as and when any speech or any action takes place which attracts offences such as Sections 153A, 153B and 295A and 505 of the IPC etc., suo moto action will be taken to register cases even if no complaint is forthcoming and proceed against the offenders in accordance with law”, the petition by Delhi-based APCR has urged the constitutional courts to intervene since “the turn of events, show that the administration has no regard for the law or the directions passed by the Supreme Court.”
The 2022 directive of the Supreme Court was in relation to a previous set of events, when so-called Dharam Sansads (religious gatherings) were held where hate-filled calls against India’s minority Muslim community were made.
The fresh cause of action in the present urgent petition is a signed letter received by the District Magistrate of New Tehri Garhwal district of the state on June 5, 2023 in which I was stated in bald terms that a “particular community” ply their trade as vendors through the villages, and are a “threat” to the “legacy of our forefathers”, to “our women”, to “our livelihood” and “our land”. Therefore, we have given the “particular community” an ultimatum of 10 days, in which they have to abandon their homes and occupations, and leave the “Jaunpur Valley”. This is clearly an unconstitutional call that required strict intervention and action by the state’s police. However, to date, nothing had happened.
Only after news that three separate legal actions had, between the night of June 3 and 14 moved the Supreme Court of India to urgently intervene in this matter and stop the proposed Mahapanchayat on June 15 (tomorrow) that CNN News 18 telecast breaking news that prohibitory orders had been declared in the district.
The letter of the controversial organisation further warns that if this is not done (meaning a mass exodus is not forcibly orchestrated), then the organisation and its supporters will block the Yamuna bridge and Highway from 11 AM on June 20, 2023. The letter strangely asks the Magistrate to implement this illegal and unconstitutional demand in a time bound manner. The petition states that “it appears that the said event has been planned in the peak of the summer and middle of summer recess for the courts so that the affected parties and those who seek to uphold the Constitution cannot easily approach the Courts of law.”
Besides, state the petitioner, it is one thing to ignore the letter, but given the context of physical intimidation, mass polarization and actual threats delivered to the “particular community” in the area, the district authorities are in breach of the SC in not instituting a criminal case and immediately prosecuting the habitual offender. The said letter also seeks to impliedly extend a threat to the administration, which shakes the confidence in the system of law.
“This letter constitutes extreme hateful speech in explicitly demanding the removal of an entire community from the region, i.e., ethnic cleansing. It presumes better rights over the Indian nation than Muslims thus advocating disharmony, and a threat to national integrity and sovereignty. The fact that this letter was addressed with impunity to the senior most administrative officer of the District is a comment on the sense of impunity enjoyed.
“Apart from constituting ‘hate speech’, this letter sent with impunity to the District Magistrate constitutes cognizable, non- bailable offenses under Section 15(1) as well as Section 15(1)(a)(iii), Section 16 read with Section 18 of the UAPA, in addition to Sections 153A, but more pertinently Section 153B (for the letter presumes superior rights of citizenship), Sections 503, 504, 505 and 506 of the IPC. The letter, which is in the public domain, made public presumably by the sender, is dated June 5, 2023. The 10 days of non-action by the state authorities has resulted in a “constitutional harm” in the following ways: The letter has been widely circulated in public spaces and on social media, leading to a sense of immense fear and insecurity. The police have reportedly registered one FIR against “unknown persons”.
This letter, signed by the office-bearers of various organisations was received by the District Magistrate of New Tehri Garhwal District. It states in bald terms that a “particular community” ply their trade as vendors through the villages, and are a “threat” to the “legacy of our forefathers”, to “our women” and “our land”. Therefore, we have given the “particular community” an ultimatum of 10 days, in which they have to abandon their homes and occupations, and leave the “Jaunpur Valley” . The letter further warns that if this is not done, then the organisation and its supporters will block the Yamuna bridge and Highway from 11 AM on 20, June 2023. The letter strangely asks the Magistrate to implement this illegal and unconstitutional demand in a time bound manner. Due to the declaration of the Mahapanchayat in Purola, Uttarakhand on June 15 for protection of “sisters, daughters and ancestral heritage” there is fear and many people are forced to leave their homes and migrate for their safety. Another Mahapanchayat to call for peace is proposed for 18.06.2023.
The petitioners also state that “the narrative has been replicated and multiplied appearing in hate speeches at public rallies, all over social media, and in public posters. The narrative paints the “particular community” as predators of land, women and culture and gives an ultimatum to them to vacate the region within 10 days, on pain of violence.
“There have been media reports of violence, but also interviews with shopkeepers who have decided to “voluntarily” keep their shops closed for fear of violence and looting. In several cases, landlords have evicted their tenants from residences as well as shops, at a moment’s notice, resulting in the “ultimatum” being fulfilled.
“This also makes explicit the difference between direct and immediate violence, and “structural violence” which leads to acute discrimination, boycott and social, political and economic marginalization. Systemic hate speech has been directly known to result in such structural violence.
Thus it was incumbent upon State authorities to curb such speech/ mobilization. Non-action results in constitutional harm to the targeted group, since it violates their rights under Article 14, 19 and 21. Lack of decisive criminal action on the letter, and informal mediations that force inequitable compromises add to the constitutional harm.
Hence, state the petitioners, the lack of action on receipt of the letter, and on seeing its evident dissemination amidst the public; in not identifying it as criminal and unconstitutional, the district magistrate and the state authorities have been in breach of directions of the Supreme Court (SC) and also committed Constitutional harm.
Specifically a Mahapanchayat has also been announced for June 2023 15, in Purola, where earlier posters had been put up, and certain shops marked with a cross, indicating that their occupants had to leave before that date that is June 15. It is likely that further hateful and provocative speeches will be made targeting the “particular community”, since it is in continuation of the already criminal narrative in the public sphere.
Certain Muslim leaders have also called for a Mahapanchayat on June 18, 2023. As reported in the national media, at a press conference the organisers stated, “through the mahapanchayat, we just want to make an appeal not to punish the innocent.
The petitioners have also detailed how, in numerous previous instances, the constitutional courts have elaborated upon the duty of district officials to pre- empt and prevent instances of organized hate speech which may result in violence. Pertinently, in April 2022, a ‘Dharam Sansad’ was announced in Haridwar, which endorsed a similar narrative about ‘outsiders’ and ‘jihadis’. This Hon’ble Court orally observed that “we will hold the Secretary (Home), Chief Secretary, and the IG concerned responsible if something untoward happens despite your assurance…” on April 26, 2022 [WP(C) 24/2022]. In addition to taking the steps detailed in WP(C) 940/2022 order dated October 21, 2022, a similar responsibility to prevent organized hate speech and intent to carry out terrorist acts ought to be again placed on the authorities.
The petition first to the Supreme Court and now to the Uttarakhand High Court bases itself on certain legal grounds.
Firstly, as mentioned above there exists a continuing mandamus of the Supreme Court in order dated October 21, 2022 in WP(C) 940/2022, wherein the state of Uttarakhand was specifically directed to “ensure that immediately as and when any speech or any action takes place which attracts offences such as Sections 153A, 153B and 295A and 505 of the IPC etc., suo moto action will be taken to register cases even if no complaint is forthcoming and proceed against the offenders in accordance with law.”
Second, because a bare perusal of the letter dated June 5, 2023 leads to the inevitable conclusion that it constitutes extreme hateful speech in explicitly demanding the removal of an entire community from the region, i.e., ethnic cleansing. It presumes better rights over the Indian nation than Muslims thus advocating disharmony, and a threat to national integrity and sovereignty.
Thirdly, this same letter dated June 5, 2023 also further advocates “chakka jam” of the highway which will cut off essential supplies to the region and thereby threaten the security of the region. Through these statements the letter attracts not just Sections 153A, Section 153B (for the letter presumes superior rights of citizenship), Sections 503, 504, 505 & 506 of the IPC; but also Sections 15(1) as well as Section 15(1)(a) (iii), Section 16 read with Section 18 of the UAPA.
Fourthly, the public circulation of the letter (dated June 5, 2023) has resulted in “constitutional harm” in the following ways:-
- The police have reportedly registered one FIRagainst “unknown persons”.
- The narrative has been replicated and multiplied appearing in hate speeches at public rallies, all over social media, and in public The narrative paints the “particular community” as predators of land, women and culture and gives an ultimatum to them to vacate the region within 10 days, on pain of violence.
- There have been media reports of violence, but also interviews with shopkeepers who have decided to “voluntarily” keep their shops closed for fear of violence and In several cases, landlords have evicted their tenants from residences as well as shops, at a moment’s notice, resulting in the “ultimatum” being fulfilled.
- This also makes explicit the difference between direct and immediate violence, and “structural violence” which leads to acute discrimination, boycott and social, political and economic marginalization. Systemic hate speech has been directly known to result in such structural
- Also, the non action on part of the State/District authorities to curb such speech/mobilization will cause constitutional harm to the targeted group since it violates their rights under Article 14,19 and 21 of the Constitution.
- The failure to take action on receipt of the aforesaid letter and on seeing its evident dissemination amidst the public; in not identifying it as criminal and unconstitutional, the District Magistrate and the state authorities have been in breach of directions of the constitutional courts (especially the Supreme Court) and also committed Constitutional
- There exists an unconstitutional state of affairs and as a doctrine the concept originated in Colombia, and was later adopted in As the term suggests, an unconstitutional state of affairs is specifically meant for a situation where the violation of rights is not individualized, but structural.
- It is also apparent that the Mahapanchayat announced for Friday, June 15, 2023 in Purola is a build up to the “ultimatum” issued vide letter dated June 5, 2023, where earlier posters had been put up, and certain shops marked with a cross, indicating that their occupants had to leave before June 15 . It is likely that further hateful and provocative speeches will be made targeting the “particular community”, since it is in continuation of the already criminal narrative in the public sphere.
- Now, that certain Muslim leaders have also called for a Mahapanchayat on June 18, 2023. As reported in the national media, at a press conference the organizers stated, “through the mahapanchayat, we just want to make an appeal not to punish the ” These events are indicative of worsening communal atmosphere in the region which has been borne out of inaction by the State/District administration despite cognizable, non-bailable offenses having been committed targeting the unity, integrity and security of the region and nation.
- Allowing a rally that invokes communal frenzy may result in a breach of public order and peace. The authorities have a duty to maintain law and order, and permitting a rally that promotes communal hatred or violence may directly contravene this
- The state has a duty to protect its citizens from harm and ensure their safety. Allowing a rally that invokes communal frenzy disregards this duty and may lead to a failure on the part of the state to fulfill its obligation to protect the rights and well-being of its
- The Constitution of India guarantees various fundamental rights, including the right to equality, freedom of speech, and the right to practice and propagate one’s Allowing a rally that promotes communal hatred may infringe upon these fundamental rights and can undermine the principles of secularism and pluralism enshrined in the Constitution.
- Permitting a rally that promotes communal frenzy can severely damage communal harmony and social cohesion. It can deepen divisions among communities, increase polarization, and hamper the peaceful coexistence of diverse groups within
- Allowing a rally that incites communal frenzy may contribute to an atmosphere that facilitates hate crimes and communal violence. The authorities have a responsibility to take preventive measures to curb such activities to safeguard the rights and safety of
- There is obligation for addressing collective or mass behavior and situations that may have the potential to disrupt public
- The Petitioner also states that the rights under Articles 14, 17, 19 and 21 of the Constitution of India are being It is being projected that a territory of India belongs only to a person of a certain religion and others are all subordinates and “mlechhas”. The same violates the guarantee of equality and the right to reside and settle freely in India, as well as the equal treatment (without subordination) on the basis of religion, race, caste, region, or colour.
The petition strongly urges the High Court to:
- Issue a writ, order or direction, directing the Respondents to take long lasting steps and effective steps to prevent, control, and mitigate the potential outbreak of large-scale communal violence and cognate crimes, especially u/s 153A IPC and, ensuring the protection of life, liberty, and property of all citizens, particularly in District Tehri Garhwal, Uttarakhand;
- Issue a writ, order or direction, directing the Respondents to register an FIR and/or investigation against the signatories of letter dated June 5, 2023 under applicable provisions of the UAPA and IPC;
- Issue a writ, order or direction, directing the Respondents (State of Uttarakhand, that is the government, Director General of Police and administration to enhance security arrangements, including deployment of adequate police personnel, surveillance systems, and intelligence gathering, in sensitive areas to deter any planned communal violence and to provide a sense of safety and security to the affected groups, localities and persons; in Uttarakhand especially Tehri Garwal district
- Issue a writ, order or direction, directing the concerned authorities to identify and take appropriate legal measures, including preventive detention under the applicable provisions of law, against individuals or groups suspected of planning or inciting communal violence, thereby ensuring the maintenance of law and order and the protection of constitutional rights
- Issue a writ, order or direction, directing the Respondent authorities to monitor and take strict action against any individual, organization, or media outlet spreading hate speech or promoting communal disharmony, in accordance with the relevant laws, to prevent the escalation of tensions and
- Issue a writ, order or direction, directing the respondent authorities to ensure prompt and impartial investigation of any incidents related to communal violence, and to initiate appropriate legal proceedings against the perpetrators, ensuring that they are held accountable for their actions, for dharamsansad/mahapanchayat in Uttarakhand;
Judicial Precedents
The Hon’ble Supreme Court in Qurban Ali & Anr v. Union of India & Ors [WP(C) 24/2022], with reference to a similar event planned at Roorkee, Uttrakhand, directed the Secretary Home Department, Uttarakhand to place an affidavit on record stating their position that, “all preventive measures have been taken, as exposited in the decisions of this Court referred to above , and the concerned authorities are more than confident that no undue situation or unacceptable statements will be made during such events, and whatever is necessary in terms of the decisions of this Court, al such steps will be taken by the concerned authority.”
Other judgements relied upon are Shakti Vahini v. Union of India & Ors. [(2018) 7 SCC 192, Para 55], Tehseen S. Poonawalla v. Union of India & Ors. [ (2018) 9 SCC 501] and Kodungallur Film Society & Anr. v. Union of India & Ors. [(2018) 10 SCC 713]. Finally the October 21, 2022 Hon’ble Supreme Court in Shaheen Abdulla v. Union of India & Ors. [WP(C) 940/2022] specifically directed that state of Uttarakhand to “ensure that immediately as and when any speech or any action takes place which attracts offences such as Sections 153A, 153B and 295A and 505 of the IPC etc., suo moto action will be taken to register cases even if no complaint is no complaint is forthcoming and proceed against the offenders in accordance with law”
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