Supreme Court reserves order on hate speech case against Uttar Pradesh Chief Minister, Adityanath

A bench presided by the outgoing Chief Justice of India, N.V. Ramana is to decide whether the closure report filed by the Uttar Pradesh police in the case was valid.

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EARLY this morning, just two days before the Chief Justice of India ('CJI'), N.V. Ramana retires, a bench, presided by him, reserved the order in an appeal challenging the judgment of the Allahabad High Court, in the case of Parvez Parwaz & Anr. versus State of Uttar Pradesh & Ors. (2018), upholding the Uttar Prades government's refusal to grant sanction to prosecute the Chief Minister Adityanath in relation to a hate speech crime he allegedly committed in 2007, when he was a Member of Parliament from Gorakhpur.

In its judgment dated February 22, 2018, the high court had also refused to transfer the investigation from the state's Criminal Investigation Department ('CID') to an independent investigative agency.

When the matter was taken up for hearing, senior advocate Kapil Sibal, who was to appear for the petitioner, told the bench, which also comprises Justices Hima Kohli and C.T. Ravikumar, that for "some reasons" he could no longer appear in this matter. The bench thus asked Advocate-on-Record Fuazail Ahmed Ayyubi to argue the matter. Ayyubi prayed for a day's adjournment in view of Sibal withdrawing from the case, but the bench persisted that it would hear the matter today itself. Eventually, the bench heard the matter as the last item on the board.

Advocate Ayyubi, for the petitioner, contended that the high court did not decide the seminal issue of whether a state can pass an order under Section 196 (prosecution for offences against the State and for criminal conspiracy to commit such offence) of the Code of Criminal Procedure in respect of an accused who, in the meantime, rose to become the Chief Minister of the state. The CJI, however, remarked that once a closure report was filed in the case, "where was the question of sanction? It is an academic question … If there is no case, where will the question of sanctions arise?" Responding to the CJI's query, Ayyubi submitted that the closure report came to be filed for the reason that sanction was declined by the state government, which is challenged in the present case.

Ayyubi also drew the attention of the bench to a Draft Final Report ('DFR') prepared by the investigating agency in 2015 against the accused persons for offences under Sections 143 (punishment for being member of un unlawful assembly), 153 (wantonly giving provocation with intent to cause riot), 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) and 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), read with Section 505 (statements conducing to public mischief) of the Indian Penal Code, and forwarded to superior officers for approval. On July 17, 2015, the Special Secretary (Confidential) approved the note, and submitted the request for sanction to the Chief Secretary, State of UP for their approval.

The Chief Secretary also approved the note regarding the DFR and sanction to prosecute, and forwarded the same to the Special Secretary (Home). However, on December 29, 2015, the Special Secretary (Home) made a note to seek legal opinion from the Law Department on the DFR, and accordingly, papers were forwarded. On September 9, 2016, the Special Secretary/Additional Legal Remembrancer put up a note seeking the forensic report which was approved by the Principal Secretary (Law).

Accordingly, a reminder was sent to the Superintendent of Police, Crime Branch-CID on December 21, 2016 to bring the forensic report. Meanwhile, on March 19, 2017, Adityanath was appointed as chief minister. On May 1, 2017, the Law Department submitted a report stating that in the absence of evidence, there was no need to grant sanction for prosecution. Eventually, on May 3, 2017, the Principal Secretary (Home) agreed with the opinion of the Law Department and passed an order refusing sanction for prosecution.

Ayyubi submitted that the file ought to have gone to the Governor for consideration. The question posed before the Supreme Court was whether the Allahabad high court had ignored the fact that the Principal Secretary (Home) who refused sanction to prosecute Adityanath was directly reporting to the Minister in-charge of the Home department, Uttar Pradesh — in this case, Adityanath himself, who holds the additional portfolio of the home department of Uttar Pradesh.

Appearing for the state, senior advocate Mukul Rohatgi argued that a closure report was already filed in the matter. He submitted that the CD of the alleged speech submitted by the petitioner was broken, and later he submitted another CD which was found to be tampered with.

"This is an attempt to flog a dead horse just because the person is a Chief Minister. There is no material on record. There has to be a closure", Rohatgi submitted.

He also drew the attention of the bench to the criminal antecedents of the petitioner.

The accused — the present Chief Minister of Uttar Pradesh, Adityanath – had addressed a meeting in 2007, in which he was alleged to have said that if the blood of one Hindu was shed, then the response would not be to register a first information report, but rather get ten Muslims killed.