No mahapanchayat, but mega-hate against Muslims lurks: Uttarakhand High Court to hear suggestions on addressing structural violence against the community

The Uttarakhand High Court has agreed to hear suggestions of the petitioner, Association for Protection of Civil Rights, on the systematic and structural violence unleashed against the minority Muslim community in the communally volatile Uttarakhand. The next hearing is scheduled for December 14. 

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THE Uttarakhand High Court has agreed to hear suggestions to maintain communal harmony in a petition claiming structural violence perpetrated against the state's minority Muslim community.

This comes almost a month after the Devbhoomi Raksha Abhiyan (DRA), a right-wing Hindu group, threatened to hold a mahapanchayat against Muslims living in Uttarakhand.

In the last few months, Uttarakhand has seen panic-driven migration primarily by the Muslim community after the DRA gave a communal makeover to the alleged abduction of a minor Hindu girl by two youths, one Hindu and another Muslim, in the Purola block of Uttarkashi district in May. 

Although a first information report (FIR) was lodged under the Protection of Children from Sexual Offences, 2012 (POCSO) and both the accused were arrested, the DRA started spreading anti-Muslim rhetoric in the name of protecting the "devbhoomi" (land of the gods). 

Background

After the abduction incident, the DRA allegedly circulated posters across the district of Purola, forcing Muslims to leave the town. Posters threatening "love-jihadis" with dire consequences if they do not vacate their shops were also found in the Purola block and in Barkot.

Although the posters were eventually removed as the police took cognisance, many members of the Muslim community reportedly left the city, fearing for their safety.

Protests were also organised in the Purola block, wherein slogans to boycott the Muslim community were raised.

On May 29, 2023, a major rally by right-wing organisations took place in Purola. In the videos circulated of that rally, the mob were seen attacking Muslim-owned shops despite the presence of the police.

On June 6, 2023, Rashtriya Swayamsevak Sangh-affiliated Vishwa Hindu Parishad (VHP), and the youth wing of the VHP, Bajrang Dal, sent a letter to the Tehri district magistrate giving an ultimatum to the 'people of a particular community' to leave the Jaunpur Ghati (valley), and in particular the towns of Yamuna Ghati, Nainbagh, Jakhdhar, Naintibbar, Thatyur, Damta, Purola, Barkot and Uttarkashi. 

According to the letter, "members of a particular community are continuously roaming around the villages in the garb of ragpickers and ice-cream sellers, due to which, the threat to our beti, choti, and roti [daughters, braids—used in the sense of 'honour'— and bread] as well as the heritage of our ancestors is constantly rising."

The letter stated that if Muslims do not comply with the ultimatum, VHP, along with Hindu Yuva Vahini and Traders' Union of Tehri Garhwal will organise a "chakka jam" and block the Yamuna bridge highway on June 20.

Subsequently, a Hindu mahapanchayat was proposed to be called on June 15 under the leadership of Swami Darshan Bharti of the DRA for the protection of "sisters, daughters and ancestral heritage". 

Amidst the communal frenzy in Uttarakhand, the livelihood of Muslims was severely impacted as many were allegedly forced to permanently close down their shops before the mahapanchayat took place. The Hindu reported that 44 shops belonging to Muslims had permanently closed in Purola since the incident.

Many civil rights groups such as the People's Union for Civil Liberties and the All India Lawyers' Association for Justice (AILAJ) wrote letters to the Chief Justice of India Dr D.Y. Chandrachud, highlighting the alarming rise of hate speech, vigilantism and targeted communal violence against the Muslim community in Uttarakhand.

According to the AILAJ's letter, a "social segregation" of Muslims was underway in Uttarakhand but police remained a mute spectator despite the ongoing explicit calls for ethnic cleansing of Muslims in Uttarakhand.

Letters were also written by prominent intellectuals Professors Apoorvanand and Ashok Vajpai to the Chief Justice of Uttarakhand High Court Vipin Sanghi, requesting their immediate intervention in preventing the proposed mahapanchayat. 

The letters highlight the Uttarakhand government's failure to comply with the Supreme Court's guidelines in Tehseen S. Poonawalla versus Union of India & Ors (2018). In its judgment in the case, the Supreme Court had issued a three-fold guideline, namely, "preventive measures", "remedial measures" and "punitive measures".

These guidelines oblige the government to take preventive measures against any kind of mob vigilantism and mob violence. As per the guidelines, the state government shall designate a senior police officer, not below the rank of a superintendent of police, as a nodal officer who shall be assisted by a deputy superintendent of police rank officer in taking measures to prevent incidents of mob violence and lynching.

Further, the guidelines also provide that a special task force must be constituted by the state government to procure intelligence about people who are likely to commit rioting and mob violence or who are involved in spreading hate speeches, provocative statements and fake news.

What has happened so far?

On June 14, 2023, advocate Shahrukh Alam representing the Association for Protection of Civil Rights (APRC), a non-governmental, not-for-profit civil rights group, approached the Supreme Court and sought a writ of mandamus (command) against the mahapanchayat from taking place. 

APRC's petition primarily relied on the Supreme Court's judgment of Shaheen Abdulla versus Union of India and Ors. (2022) wherein, the Bench of Justices K.M. Joseph and Hrishikesh Roy were concerned about the rising instances of hate speech in Himachal Pradesh and Uttarakhand. 

During a dharam sansad (religious assembly) in Haridwar last year, hate speeches calling Muslims "outsiders" and "jihadis" were made. 

The Supreme Court directed that arrest be made immediately against those inciting violence. 

In its Order, the court directed the Uttarakhand government to ensure that as and when any speech or any action takes place which attracts offences such as 153A (promoting enmity between different groups on the ground of religion), 153B (imputations, assertions prejudicial to national integration), 505 (statement inducing to public mischief), 295A (deliberate and malicious acts intended to outrage religious feelings) of the Indian Penal Code, 1860 (IPC), suo motu action be taken to register an FIR even if no complaint is forthcoming. 

The APRC's petition stated that there is a continuing mandamus from the Shaheen Abdulla Order. Despite that, the Uttarakhand administration failed to perform its statutory duty to prevent communal violence.

The petition further noted that the state administration took no action over the letter addressed to the district magistrate of Tehri Garhwal despite the fact that the same was sent on June 5, 2023, giving an ultimatum of ten days to 'a particular community' living in 'certain belts of the state' to vacate their homes'.

According to the petition, the letter constitutes an "extreme hateful speech" by explicitly demanding a removal of an entire community from the region.

A vacation Bench of the Supreme Court comprising Justices Vikram Nath and Ahsanuddin Amanullah, however, refused to entertain the petition. The court stated that the petitioner should approach the high court since the issue concerns the law and order of a state. 

Subsequently, Alam approached the Uttarakhand High Court which also refused to intervene and direct the state administration to register FIRs against the signatories of the letters. 

Alam argued that the contents of the letter attracted Sections 15 (terrorist act) and 18 (punishment for conspiracy) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) as they laid down a threat to the national integrity and caused disharmony, along with Sections 153A, 153B, 503, 504, 505 and 506 of IPC.

However, according to the division Bench comprising Chief Justice Sanghi and Justice Rakesh Thapliyal, the letter did not name any particular community.

Alam added that even FIRs against unknown people who pasted the posters had been lodged. The petition pointed out that the inaction of the state administration for ten days had resulted in constitutional harm and violation of Articles 14 (equality before law) , 19 (protection of certain rights regarding freedom of speech etc) and 21 (protection of life and personal liberty) of the Constitution.

The counter-affidavit filed by the Uttarkashi police vehemently opposed this contention. According to the counter-affidavit, the allegations were false as the authorities had taken all measures to ensure peace and harmony.

In fact, the police have also stated that there is "no recent history of communal violence in Tehsil Purola". However, the police acknowledged that FIRs against unknown persons involved in pasting the pamphlets ordering Muslims to vacate their shops have been registered.

The counteraffidavit filed by the DM of Uttarkashi reiterated the same.

Alam however continued to emphasise that the issue is not just limited to the law and order situation as it concerns the structural and systematic violence that was unleashed against the Muslim community. Such kind of violence leads to acute discrimination,and socio-economic and political marginalisation.

She gave an example of the socioeconomic boycott faced by the community and how it will be difficult for the Muslim community to resume their normal lives. To this, Justice Sanghi pointed out that no government Order prevents any community from opening their shops and earning a livelihood. 

The Order of the high court observed: "It is, first and foremost, for the police authorities to examine, whether the commission of any cognisable offence has been disclosed, and secondly even if the police were not to act on the same, it is for the concerned magistrate to examine the same issue. The directions of the nature sought by the petitioner in these proceedings would lead to undue influence on the concerned statutory authorities and courts in the discharge of their respective duties."

What happened at the latest hearing?

In the latest hearing, the court wanted to dispose of the petition since the mahapanchayat had been cancelled. However, Alam emphasised that the violence runs deeper than just handling the law and order situation.

On an earlier occasion, the state government had pointed out that the district magistrate of Tehri Garhwal had been impleaded wrongly as Purola comes under the jurisdiction of district magistrate Uttarkashi. 

In the hearing on July 18, Alam informed the court that both district magistrates should be made a party. Further, she elaborated that the district magistrate Tehri Garhwal should remain a party because he failed to act against the notice which gave an ultimatum to the Muslim community to leave the town.

The signatories of the letter, the VHP, Bajrang Dal and the DRA, have also been impleaded as parties.

The state however opposed the petitioner's plea stating that the petitioner is not aware of the ground situation. To this, Alam acknowledged that they have relied on anecdotal evidence and media reports.

She further stated that the petitioner has already written a letter to the Ministry of Minority Welfare to establish a fact-finding committee that can study forced evictions and migration of the Muslim community since the incident.

Alam referred to the recent Order of the Supreme Court in Dinganglung Gangmei versus Mutum Churamani Meetei & Ors, wherein the court directed the chief secretary of the Manipur government to file a status report on the measures taken by the authorities to bring normalcy to the law and order situation.

She requested that a similar status report should also be filed by the state of Uttarakhand. However, she added that the authorities have not filed any reply to the letter sent.