Amit Shah and the Toxic Consequences of ‘Clean Chit’ Jurisprudence by Indira Jaising // Yogi Adityanath decides not to sanction the prosecution of Yogi Adityanath

NB: A systematic ideological onslaught on the rule of law and the very idea of justice is taking place before our eyes. There are still cases where the judiciary is upholding its neutrality: in August 2016 the SC ordered a re-probe of 315 cases related to the 2008 Kandhamal violence; and a trial court in Rajasthan recently convicted a VHP leader for hate speech. There are courageous officials such as the Chhattisgarh jail officer who denounced human rights violations. But India's criminal justice system is under tremendous political pressure, as is evident from the kind of decisions - both judicial and political, reported below. DS

Criminal law knows no clean chit other than an acquittal following a trial. Once the process of criminal law has been set in motion and an investigation is complete, there has to be an acquittal or a conviction The reported comments of the judges who heard the petition filed in the public interest by a concerned citizen questioning the refusal of the Bombay high court to allow a petition questioning the discharge of Amit Shah in a murder case are a cause of grave concern. The apex court’s refusal to admit the petition virtually gives a ‘clean chit’ to the Bharatiya Janata Party president. As one commentator remarked, the announcement of the resignation of Gujarat chief minister Anandiben Patel came after the rejection of this petition was announced, as if to affirm the importance of Shah to the ruling party. But whatever be his importance for the BJP, should that matter to the Supreme Court? “Clean chit” jurisprudence is here to stay; it requires no due process of law, and it requires no trial to ascertain the truth of allegations against the accused. It first came to prominence when the special investigation team appointed by the SC in the 2002 riot cases said they saw no “larger conspiracy” in the killings. This was the “clean chit” that Narendra Modi, who was chief minister at the time, desperately desired. There was no trial, no allegations brought, just an investigator’s report. 

The jurisprudence of the “clean chit” now comes full circle with the refusal of the Supreme Court to allow Harsh Mander to raise the issue of the discharge of Amit Shah in the Sohrabuddin-Kauser Bi-Tulsiram Prajapati murder case after the CBI failed to file a revision against Shah’s discharge by the sessions court and after Sohrabuddin’s brother too withdrew his case.
The discharge itself came after one judge was transferred and one died; the third judge who was brought in delivered his judgment within a few days of taking charge of the case. It was the refusal of the Bombay high court to allow a public interest litigant to question the discharge that was challenged in the Supreme Court. Harsh Mander’s petition questioning Shah’s discharge in a triple murder case was dismissed by the Supreme Court primarily on the ground that the petitioner himself was in no way an “affected person”. The gates of the Supreme Curt have thereby been closed to any questioning of Shah’s discharge. This is how the jurisprudence of the ‘clean chit’ works.

Criminal law knows no clean chit other than an acquittal following a trial. Once the process of criminal law has been set in motion and once an investigation is complete, there has to be an acquittal or a conviction. It is true that charges can be quashed at the instance of the accused, but in this case, Amit Shah did not ask for quashing – realising probably that there could be no quashing in a triple murder case. The other way out was to obtain a discharge so that the case does not go to trial at all. Which in turn means the sessions judge comes to the conclusion – without recording evidence – that there was no case against the accused at all from the very inception.

It must be said that the chargesheet was filed after intensive investigation, and after putting on record the metadata of Amit Shah’s phone conversations with the police officers who had come to be known as the “encounter team” of the Gujarat Anti Terrorist Squad. Every terrorist who was apprehended and liquidated had allegedly come to Gujarat come to kill the chief minister, and the ATS was charged with the duty of apprehending terrorists. This was the justification offered then and to this date in the case of Ishrat Jahan and the others who were killed along with her. These calls were made by police officers of the ATS to the then home minister Amit Shah at or about the time when the encounters were taking place, or right before and after.

Be that as it may, Rubabuddin (Sohrabuddin’s brother) did find the courage to file a revision application in the high court, which he later withdrew on the ground of alleged ill-health. He later gave an interview to a TV channel stating that he feared for his life and that of his family. Counsel for Rubabudin had submitted a sealed envelop to the judge pointing out that Rubabuddin appeared to be in fear and his statement of ill-health should not be taken at face value. A request was made to deal with the legality of the discharge by taking suo motu cognisance of the illegal order.What was the duty of the high court judge at that stage? She perhaps could not have prevented Rubabuddin from withdrawing altogether but she had options. She could have assured him of witness protection; she could also have proceeded with the case suo motu, in the interest of justice, to examine the validity of the much criticised discharge in a triple murder case. She did neither… 

Yogi Adityanath deciding to not sanction his own prosecution is mocking the justice system
The Uttar Pradesh government intimated the Allahabad High Court on 11 May that it will not grant sanction to prosecute chief minister Yogi Adityanath for his allegedly inflammatory speeches that led to communal riots in Gorakhpur in 2007. The incident took place 10 years ago, when Adityanath was the elected Member of Parliament from Gorakhpur. He is today the chief minister, after being appointed so in March this year. But the question is - can anybody imagine an Indian politician voluntarily submitting himself, if he has the power to take a call on whether or not to do so, to the due legal process in order to uphold the majesty of law? One would have to strain to find such an example. As a matter of fact, the history of Indian politics has several examples to show that politicians from different parties, who otherwise spew venom against each other on public forums, have come together to slyly protect one another from the vicissitudes of law.

The 2007 riots incident bears this out. A brief history of the case is as follows: A few goons had apparently misbehaved with some girls who had been hired to dance at a wedding at the local DAV College ground in Gorakhpur. After these hoodlums were chased away by the crowd, they reportedly mingled with a Muharram procession which was passing by. Clashes ensued, and one Hindu boy, Raj Kumar Agrahari, died in the scuffle. Adityanath had allegedly delivered an inflammatory speech as soon as news of Agrahari's death spread. The next day, on 28 January, 2007, Adityanath, along with hundreds of activists of his Hindu Yuva Vahini, began a march across the sensitive areas of Gorakhpur. Sensing trouble, the police arrested the MP who was sent to judicial custody by the magistrate. That pushed Gorakhpur into a communal inferno. Irate Adityanath supporters came out on the street to protest his arrest. Several coaches of the Mumbai-Gorakhpur Godan Express were allegedly burnt by Hindu Yuva Vahini activists. Communal riots broke out in Gorakhpur, during which mosques, houses and buses were burnt. According to the reports, at least 10 Muslims lost their lives in the communal frenzy. It was only after Adityanath was released on bail on 7 February that normalcy returned to the city.

Parvez Parwaz, a Gorakhpur journalist, was so incensed that he sought to file an FIR against Adityanath and others; his charge was that the MP had delivered inflammatory speeches seeking revenge for Agrahari's death, and this led to communal riots. Parwaz also claimed that he had videos of these speeches to corroborate his point. But when the police refused to lodge an complaint (A Samajwadi Party government headed by Mulayam Singh Yadav was in power at the time), Parwaz moved the Allahabad High Court which ordered the filing of an FIR against Adityanath and others in September 2008. The high court's decision was challenged by the affected parties in the Supreme Court, which promptly stayed the decision. But in December 2012, the apex court endorsed the high court verdict and allowed proceedings to resume. By the time the apex court ruling came, a Samajwadi Party government was back in power with Akhilesh Yadav as chief minister.

Because of the judicial intervention, the case was handed over to the crime branch of the Crime Investigation Department (CB-CID) which is a special wing in the CID that investigates serious crimes including riots. Speaking to The Indian Express, CB-CID inspector Chandra Bhushan Upadhyaya who had investigated the case had this to say, "I had completed the investigation in 2015. I submitted the a report to the CB-CID headquarters in Lucknow seeking prosecution sanction to file a chargesheet against five accused including Yogi Adityanath under Section 153-A of the Indian Penal Code." But the Akhilesh Yadav government sat over the decision.

Aggrieved, Parwaz filed an application with the Allahabad High Court for the restoration of the case. The court asked for a status report from the government. The Akhilesh Yadav government responded that the CID which was investigating the case had sought prosecution sanction from the state government in 2015 and the decision was pending with the home department. From 2015 to 2017- Akhilesh's government put the issue on the backburner, till earlier this year when the SP was thrown out of power. This was a classic case of duplicity from our politicians. Akhilesh went hammer and tongs against the BJP in general and Yogi Adityanath in particular on political platforms. But clearly, behind the scenes, he had worked out an understanding with Adityanath, that he would protect him from prosecution in a case in which, if convicted, the saffron-clad politician would have landed in jail for five years.

As luck would have it, Adityanath, the prime accused in the case, became chief minister of the state in March this year. Adityanath's government was also asked by the Allahabad High Court to respond to a similar query which had been made to the Akhilesh government. But the court was more specific in its direction this time: It asked the Uttar Pradesh chief secretary to be present in person on 11 May, to submit the status report of the 2007 Gorakhpur riots case and convey the government's decision about the pending case of sanction for prosecution. Rahul Bhatnagar, the chief secretary, duly told the court that the home department of the state had taken a decision to deny permission to prosecute Adityanath and others in the 2007 Gorakhpur riots case. Incidentally, Yogi Adityanath is the state home minister as well. Pervez Parwaz, the petitioner, has said that he would challenge the government's move. He has petitioned the court saying that a prime accused in a case could not be allowed to decide whether he should be prosecuted in the case at all, as it raises questions on the equity of our justice system. But Parwaz should not have much hope from the judiciary as courts often stick to the letter rather than spirit of legal provisions.

The decision of the Supreme Court in a similar case in 2007 reinforces this point. A galaxy of eminent citizens, like Alyque Padamsee, BG Verghese, Kuldip Nayar et al had petitioned the apex court in 2003 that it must direct the registration of criminal case against the then chief minister of Gujarat, Narendra Modi, and Vishwa Hindu Parishad (VHP) leader Ashok Singhal, who the petitioners adduced evidence to allege, had made inflammatory speeches during an election rally in Gujarat in 2002. But the Supreme Court in 2007 ruled that it could not direct the registration of the case in the absence of the prosecution sanction from the state government, which is mandatory as per Section 196 of the Criminal procedure Code. With this precedent set by the Supreme Court, it is clear where the case against Yogi Adityanath is headed in the Allahabad High Court. That leaves us with the fundamental question: Should this need of prosecution sanction (Section 196 of CrPC) to try politicians who inflame communal passions remain on our statute books?

See also
A letter to Jaitley: Why do students get jailed but RSS leaders who issue vile threats walk freely?

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