In Akhilesh’s UP, Criminal Injustice of Muslim Appeasement
In the frenzy of competitive minority appeasement, the Samajwadi Party is no different from its ‘communal’ rivals.
Akhilesh Yadav, despite his claims about being young, modern and one of the “new generation”, is essentially a chip of the old block – Mulayam Singh, his father. Or “Netaji”, as he is addressed in public. It’s known for long that Mulayam isn’t one to shy away from profiteering by appeasement – by giving sops without doing anything substantial. For instance, in February 2004, his government decided to order all schools to give a break for Friday namaaz.
After being praised by hardliners and slammed by the sensible, intelligent and conscientious, he was forced to withdraw that decision. Then, before the March 2012 assembly elections, ostensibly to rescue Muslim victims of the “communal” Mayawati government, he promised to release all innocent Muslim youth if his party was voted to power.
It now seems that Akhilesh is bent upon bettering his father’s record by expanding the boundaries of appeasement – from Muslims to Yadavs and what should cause alarm, by brazenly subverting the criminal justice system.
On May 18, while issuing notice to the UP government in SLP (Crim.) 4309 of 2015, the Supreme Court pointedly asked if it was bestowing illegal favours on a particular community by withdrawing criminal cases against some of its members. The court was hearing the government’s appeal against an Allahabad High Court order directing it to submit all relevant documents to prove that the decision to allow withdrawal of cases, especially after charge sheets had been submitted and trial had started in some of them, was not arbitrary or motivated by reasons outside the scope of the law.
The high court’s direction, given on May 7, came in a writ petition filed by a certain Ram Narain Yadav who contended that he was unfairly deprived of the bonanza lavished upon his fellow caste-members. A UP government, by virtue of Article 162 of the Constitution, has the power to withdraw prosecution of the accused, or release convicts, but it must be exercised in conformity with Section 321 of the Code of Criminal Procedure (CrPC) which seeks to prevent the abuse of such discretion.
In Sheonandan Paswan v. State of Bihar (1987), by a majority of 3-2, a Supreme Court Constitution Bench interpreted Section 321 to hold that the application for withdrawing prosecution must be “in good faith, public interest and to fulfill the cause of justice, and not to stifle the legal process.” Section 321 makes it mandatory for the public prosecutor to take the final call – independent of any government influence, and then approach the court, which has the last word. In court, the government counsel didn’t have an answer as to what were the considerations on the basis of which permission to withdraw cases was granted.
More shocking was the government’s admission, reflected in Para 8 of the order: “Shri Aniruddh Singh, learned legal remembrancer, however, orally stated that number of cases which were directed to be withdrawn by state government are in thousands. This is really surprising that criminal cases, whereafter investigation, police has collected credible evidence and filed charge sheet in court and trial is pending, instead of waiting for adjudication by the court, which is the only competent authority at such stage to answer the question whether criminal charges levelled against accused are true or not, in a summary manner, an executive decision is taken at the highest level of state government and that too when the concerned officers, like public prosecutor, police officers and district magistrates concerned have expressed their view otherwise.”
Within days of being elected, Akhilesh Yadav’s Samajwadi Party (SP) government issued a letter bearing the chief minister’s seal. Addressed to all district magistrates and public prosecutors and the home department, this letter was more of a declaration and an order. It called for immediate release of all the accused, payment of compensation to them, and the institution of departmental proceedings and other appropriate legal measures against all the policemen who took part in the investigation and prosecution of the offences.
Ranjana Agnihotri, a lawyer and activist, had challenged before the Allahabad High Court the government’s decision to implement the CM’s order and unconditionally release 19 accused facing trials for engineering bomb blasts across various districts in 2006 and 2007. Agnihotri contended that not only did it violate Section 321 of the CrPC(which deals with the state government’s power to withdraw prosecution), but also violated the principles of federalism.
This is because according to Article 93 of the Constitution, a state government cannot release someone charged or convicted of an offence under a central law without the concurrence of the Centre. All the accused had been charged under various provisions of central laws such as the Explosives Act, Passport Act, Unlawful Activities Prevention Act, etc. The protests of the state’s lawyers, prosecutors, district magistrates and policemen were brusquely cast aside. Unsurprisingly, a pliant advocate general found nothing wrong in the government’s actions.
On December 12, 2013, a full bench of the court ruled in Agnihotri’s favour. Severely castigating the government, the judges held that almost every tenet of the non-negotiable legal provisions had been flouted, and the CM’s actions betrayed a determination to run the bureaucracy and prosecution department as his personal fiefdom.
Like before, the government appealed to the Supreme Court and claimed that the high court’s “interference” was unwarranted and illegal. However, it didn’t cut much ice with the judges, who, on August 28, 2014, issued notice and asked the government to explain why the high court was wrong.
That Muslims face persecution by a communal police is not in doubt. The Srikrishna Commission’s report, the acquittal of all the Malegaon blasts accused, are only two examples of this truth. However, by hijacking the judicial process, the SP government has in fact gratuitously provided more ammunition to hardline Hindutva groups and assorted purveyors of communal hatred.
The 19 “beneficiaries” of the government’s “secular” policies would have been in a far better and secure position if the law was allowed to run its course. Wrongful convictions could always be overturned on appeal, and a malicious prosecution could have been taken to task. In fact, if the government was indeed sincere, it would have ordered a reinvestigation of all those cases it considered “false”, and thereafter taken appropriate corrective measures as permitted by law.
But now, with the high court’s judgement and the Supreme Court’s intervention, the 19 youth shall forever bear the taint of having benefited from pseudosecularism and minority appeasement. Instead of deliverance from the clutches of purportedly communal law enforcement machinery, the SP government has delivered them to the purgatory of communalism.
The Akhilesh government would continue to trot its malicious falsehood of being anti-communal, but the loudest ringing indictment comes from the Supreme Court’s 26 March 2014 order in the Muzaffarnagar riots PIL – holding it prima facie guilty of protecting the Hindu Jat rioters – letting them have a free hand in pillage, murder and gang rape of Muslims, and meting out calculated neglect to the victims.
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