02, Feb 2018 | Teesta Setalvad
On February 1, 2018 the Allahabad High Court rejected petitioner and injured victim, Rasheed Khan’s petition pressing his right to be heard during the trial related to serial criminal offences (in 2007) that involved inciteful speeches of Adityanath and others that caused deaths and destruction of minority property. The proceedings expose the tardy prosecution in the case, including the period when the Samajwadi party was in government. Today, of course, the BJP rules the state and has influence over the prosecutorial wing.
CJP’s Interview with Advocate S.F.A Naqvi on the judgement reveals how the High Court verdict is a blow to Victimology in human rights jurisprudence, a right that the Indian Supreme Court and High Courts have been increasingly asserting. The judgement of the Allahabad HC turns the clock back on rights jurisprudence when even the Indian legislature (2009), had amended the Code of Criminal Procedure to ensure the participation of the complainant and victim at all stages during trial. The Allahabad High Court Feb 2018 order can be read here.
Efforts by complainants, victims and a social worker to get Adityanath prosecuted for hate crimes – inciteful speeches that led to targeted violence against minorities in Gorakhpur – have faced severe hurdles. Two separate legal actions, one by Pervez Parvaaz to get an FIR registered against the present chief minister, then an aggressive hate-mongerer of the Hindu Vahini travelled right up to the Supreme Court.
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 of the BJP 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 (CJM) 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 SC Judgement Dec 13, 2012 are significant in terms of establishing legal precedents
The second petition filed by injured witness and complainant, Rashid Khan was the one on which judgement was delivered on February 1. Since May 2017, the High Court was grappling with the sticklish question of grant of sanction for prosecution of Adityanath.
The Allahabad bench of the High Court was also dealing with the piquant situation (since March 2017) 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 Rashid Khan case was 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 in 2017) 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.
“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.”
In the matter of sanction for Adityanath’s prosecution, a division bench of the Allahabad High Court had, on July 31, 2017, allowed an application seeking permission to challenge the Uttar Pradesh government’s refusal to grant sanction to prosecute Chief Minister Yogi Adityanath in a decade-old communal riots case. A division bench comprising justices Krishna Murari and Akhilesh Chandra Sharma on July 31 allowed the amendment application of Parvez Parwaz and Asad Hayat, who had moved the court seeking a CBI inquiry into the Gorakhpur communal riots of 2007. The petitioners’ counsel, S.F.A Naqvi, explained, “We had submitted that we should be allowed to challenge the government’s decision to refuse sanction since one of the accused in the case is heading the state government.” Parwaz is also the complainant in the FIR lodged in connection with the Gorakhpur riots, while Hayat is one of the witnesses in the case.
What are the offences about?
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 Hindus 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.
Orders and Judgments passed in the case:
- Allahabad High Court Judgement dated February 1, 2018
- Reply of second petitioner Parvez Parvaaz
- Allahabad High Court Order dated May 11, 2017
- Allahabad High Court Order dated May 4, 2017
- SC Judgment Dec 13, 2012
Judgements Relied On in the Case: