When does a speech inciting violence on the grounds of religion become a serious offence? Only when the violence actually takes place?
The Haridwar police had initially invoked only Section 153 A – promoting communal enmity – against several speakers at the Haridwar Dharam Sansad held from December 17-19.
When asked why the anti-terror law, UAPA, was not applied against them, Uttarakhand DGP Ashok Kumar said that their speeches did not lead to any violence or killings.
Does that mean the police are waiting for someone to act on the urgings of the speakers, for instance, to "use weapons more sophisticated than swords" against Muslims?
What about the speeches’ potential to arouse violence? Is there such a vast gap between incendiary speech and actual violence?
The Link Between Inflammatory Speeches and Violence
At least two eminent judges of the Bombay High Court have found a direct link between inflammatory speeches against one community, and physical attacks on members of that community following those speeches.
In her controversial 2017 bail order to three persons accused of murdering IT engineer Mohsin Shaikh in Pune in 2014, Justice Mridula Bhatkar linked the murder to a speech given by Dhananjay Desai, head of the Hindu Rashtra Sena, just half an hour before the incident.
The three accused had attended the meeting where Desai (had) "instigated the audience," and "incited feelings of religious discrimination," noted her order.
In her order, the judge presents the prosecution’s case: Immediately after Desai’s inciting speech, the accused, armed with weapons, started moving on the road on two-wheelers. They saw Mohsin, who was wearing a pastel green shirt and had sported a beard, and therefore, targeted him and his friend Wasim.
Justice Bhatkar concluded: "The accused had no other personal motive against the innocent deceased. The fault of the deceased was only that he belonged to another religion…it appears that in the name of the religion, they were provoked and have committed the murder.’’
Granting them bail on these grounds alone, the judge ordered them not to associate with any organisation like the Hindu Rashtra Sena.
The judge’s decision to grant bail to those accused of murder only because they were provoked by a hate speech created a furore, and was subsequently overturned by the Supreme Court.
But her order was important because it attributed their crime to no other factor than the speech by Dhananjay Desai. The link between hate speech and physical violence was shown to be a cause-and-effect one.
Similarly, after his five-year-long inquiry into the Mumbai riots of December 1992 and January 1993, Justice B N Srikrishna, then a sitting judge of the Bombay High Court, listed the writings in the Shiv Sena mouthpiece Saamna, edited by Bal Thackeray, as one of the reasons for the January violence.
"…large scale rioting and violence was commenced from 6th January 1993 by the Hindus brought to fever pitch by communally inciting propaganda unleashed by Hindu communal organisations and writings in newspapers like Saamna and Navaakal (a Marathi daily).’’ (VOL I Chapter III Para1.2 (i), Srikrishna Commission Report)
Not Just Judges, Police Draw the Connection Too
You don’t need judges to make this connection; sometimes, the police themselves do so. As Justice Mridula Bhatkar’s order shows, the Pune police had themselves argued that Hindu Rashtra Sena chief Dhananjay Desai’s speeches had led to the murder of Mohsin Shaikh.
Also, during the Srikrishna Commission hearings, it came to light that the Mumbai police had warned the then CM Sudhakar Naik that the inflammatory speeches being given at the maha artis organised by the RSS, BJP, and the Shiv Sena during January 1993, would lead to attacks on Muslims, and hence should be banned. Their warning came true, but the maha artis were not banned because, the CM had said, they were religious affairs.
But the Haridwar police seemed to have had no such premonition about the Dharam Sansad, even though it was organised by Yati Narisnghanand, a repeat offender when hate speech is concerned, with multiple cases against him. It is only now that his name has been added to the FIR, along with that of another speaker, Sagar Sindhu Maharaj.
In fact, his name as organiser should have been enough for the police to refuse permission for the gathering. But DGP Ashok Kumar argued that religious gatherings take place in Hardwar all the time, and that this was just one more.
Communal Rabble-Rousers Enjoying Impunity
Kumar was only following the tradition of police everywhere in India, who rarely act on the inflammatory speeches and writings of Hindutva leaders. From Bal Thackeray, Dhananjay Desai, and Sambhaji Bhide in Maharashtra to Kapil Mishra and Yati Narsinghanand in Delhi and UP, communal rabble-rousers have enjoyed impunity.
The bans on former VHP leader Pravin Togadia from entering Karnataka, West Bengal, and even Assam under a BJP CM, and on Sri Ram Sene leader Pramod Muthalik from entering Goa, however, stand out.
Such action in Uttarakhand would have been unthinkable; CM Pushkar Singh Dhami has been photographed bowing before Prabodhanand Giri, who called for a Myanmar-like "safai abhiyan" of Muslims at the Dharam Sansad.
Haridwar Speeches Attract IPC Sections 295 A, 505
The Uttarakhand police’s reluctance to take action even after the Dharam Sansad gained national and international notoriety was evident from the fact that it took them two weeks to add IPC Section 295 A (maliciously outraging religious feelings) to the FIR.
But there is yet another section – Section 505 (intent to incite one community against another) – that has not been added. It is significant because both these Sections are non-bailable.
What’s more revealing of their intent is that while an FIR can be filed under IPC Section 153 A, prosecution under the Section requires sanction from the state government. The fate of previous FIRs like these does not hold out hope.
When the Shiv Sena-BJP coalition assumed power in 1995, they withdrew six cases filed under Section 153 A against Bal Thackeray. Interestingly, previous Congress governments had refused sanction to prosecute the Sena chief in 16 cases filed against him.
When Yogi Adityanath became CM in 2017, his administration refused the sanction to prosecute him under Section 153 A for allegedly making a hate speech in 2007, when he was Gorakhpur MP.
Seeming to act without actually acting, the Haridwar police knew exactly what it was doing. Sustained pressure from citizens forced them to now set up a five-member SIT. But in an open-and-shut case, the only purpose of an SIT may be to buy time and hope the furore dies out.
(Jyoti Punwani is a Mumbai-based journalist. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)