OP Gupta, IFS (retd)
As seen from the Supreme Court’s judgment, Section 153A of IPC is not attracted in Amit Shah’s case as he did not attempt to cause disorder or incite violence. Rather Shah advised his audience to seek justice peacefully through ballots. The EC appears to have not followed the guideline of the SC in issuing notice to Shah.
Tyranny and injustice have been inflicted upon the Hindus living in western Uttar Pradesh especially by jihadi elements who on one hand, as is the public knowledge, are being aided by terrorist organisations based in Pakistan and, on the other by some Indian politicians hiding behind burqa of secularism. In his recent speeches reportedly made in towns of western UP Amit Shah has exhorted his audience not to resort to violence, not to resort to bullets but to resort to ballots against their tormentors to which no sane person can take any objection.
As a responsible office bearer of the BJP it is Amit Shah’s duty as well as his right to assure full security to his audiences against jihadi violence, and, also to assure that the NDA government shall not be soft on terrorists and criminals deriving their support from abroad. ‘National Security’ is an important election agenda.
Raising slogans of Pakistan Zindabad in many towns of western UP shows helplessness of the UP Police, and boldness of anti-India elements under the Akhilesh Yadav government. Though the IPS officers of UP are second to none in professionalism but they do not appear to have free hand.
In analysing Shah’s speeches context should not be glossed over. One should not ignore basic facts of the Muzaffarnagar riots that it started when two Hindu boys resisting teasing of their sister by Muslim boys were lynched by a Muslim mob, and, that later Jat Hindus returning after attending a Jat panchayat were attacked by Muslim mobs. The UP Police who rightly acted initially were later forced by the UP ministers to release Muslims arrested for crimes, and, told not to register complaints from Hindus. Police officers who opposed such illegal diktats were transferred post haste. The UP government came up with an award of compensation of Rs 5 lakh only to Muslims which after being rebuked by the Supreme Court was extended to the Hindu victims also. Hindus naturally resent such anti-Hindu policies of the Akhilesh government and seek justice.
The Indian Express of April 5, beamed: “Modi’s aide Amit Shah says Apmaan ka badla toh lena padega in Muzaffarnagar, stirs controversy”. “This election is about voting out the Government that protects and gives compensation to those who killed Jats,” Shah said. “It is about badla (revenge) and protecting izzat (honour).” Thus it was a call by Shah to vote out a Government which is perfectly legitimate for a political party in Opposition to do. One may recall pro-Muslim directives issued to Chief Secretaries by the Union Home Minister Shinde.
The Indian Express continued: “A man can live without food or sleep. He can live when he’s thirsty and hungry. But when he’s insulted, he can’t live. Apmaan ka badla toh lena padega, Shah said. Here again Amit Shah is saying that for taking badla change the Government peacefully through ballot boxes. It is obvious Shah did not call for violence and disorder. It is perfectly legitimate call to make by a politician in electoral field. Change of the Government through ballot box is a legitimate objective of all elections.
So in this background it was surprising that two FIRS were filed against Amit Shah. Bijnor SP Anees Ahmed Ansari said Shah has been booked under IPC Section 153-A (promoting enmity between different groups on ground of religion, race, and doing acts prejudicial to maintenance of harmony) and 125 of the Representation of the Peoples Act. Shamli SP Anil Kumar Rai said an FIR was lodged against Shah under Section 125 of the Representation of the Peoples Act.
A day after two FIRs were filed the Election Commission in indecent haste issued a show cause notice to Shah. Notice read “The Commission is, prima facie, of the opinion that…you have violated the… provisions of model code of conduct” the notice said while mentioning his objectionable remarks made at three places.
So even before getting the version of Shah’s speech as available with the EC authenticated by Shah the EC jumped to its own prima facie conclusions. What happens if Shah is able to prove that version as made available to the EC was doctored one? The EC ought to have first checked authenticity of full text of Shah’s speech from Shah before reaching at its prima facie conclusions. EC appears not to have been meticulous in observing the principles of natural justice.
EC cited the model code of conduct provisions that “no party or candidate shall indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic” and that “there shall be no appeal to caste or communal feelings for securing votes”. It is clear from Shah’s speech as reported in Indian Express that rather than aggravating existing differences between communities he was actually advising his audience to disengage from bickering with others and focus on changing the Government peacefully though ballot box.
The Commission notice also mentioned Shah’s alleged statements in Bijnor as: Behen Mayawati ne ek varg vishesh ka vote pane ke liye, jo aapki pratarana karta hai, aapki behen betiyon ki avhelna karta hai, unki aabru par hath daalta hai, us varg vishesh ko 19 ticket de diye (In order to get the votes of a particular community, which harasses you, flouts your sisters daughters, tries to violate their dignity, Behen Mayawati has given 19 tickets to that community). “Friends, you tell me, can our respect ever increase by sitting with those who insulted our community, killed the people of our community, killed our youths?” he further said, according to the Commission notice.
EC can not object to such statements as in these Shah is simply advising his audience not to vote for those who harm and hurt their interest. It is simply a common sense and a correct advice.
The Supreme Court has ruled “the matter complained must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning”. The EC appears to have not followed this guideline of the Supreme Court in issuing notice to Shah.
As maybe seen from the Supreme Court’s judgment, Section 153A of IPC is just not attracted in Amit Shah’s case as Amit Shah did not attempt to cause disorder or incite people to violence. Rather Shah advised his audience to seek justice peacefully through ballots.
A three judge bench of the Supreme Court comprising Justices K G Balakrishnan, L S Panta, and D K Jain ruled in the Manzar Sayeed Khan vs State of Maharashtra & Anr case Appeal (Cr) 491 of 2007 on 5 April, 2007 as under:
. “The intention to cause disorder or incite the people to violence is the sine qua non of the offence under Section 153A of IPC and the prosecution has to prove prima facie the existence of mens rea on the part of the accused. The intention has to be judged primarily by the language of the book (here speech) and the circumstances in which the book (speech) was written and published. The matter complained of within the ambit of Section 153A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning.”
Cases filed against Amit Shah are, thus, misuse of authority by the UP government so as to blunt momentum of BJP electioneering in UP.
(Writer is a retired officer of the 1971 batch of the Indian Foreign Service)