Act, ‘sentinel on the qui vive’

A Respectful Appeal

Enough details have come out about the calls for genocide of Muslims that were made at the Haridwar ‘Dharma Sansad’ in December and at a Hindu Yuva Vahini meet in Delhi. They do not bear repetition here. More such seditious meetings were organised in other places, too. An FIR was registered only on December 23, 2021, in connection with these hate speeches, under public pressure, but no arrests were made despite prima facie evidence of the criminal acts. The FIR was registered only under IPC Sections 153A (promoting enmity between different groups and acts prejudicial to harmony) and 295A (deliberate and malicious acts intended to outrage religious feelings). When a comedian, who has not even performed his comic act, and several others who have incited no violence, can be arrested under UAPA or sedition laws, one wonders how these laws could not be applied against calls for mass murder.

In the absence of police action to arrest the genocide-mongers, 76 eminent Supreme Court lawyers wrote to the Chief Justice of India (CJI) on December 25, 2021, asking the top court to undertake “urgent judicial intervention”, suo motu, against these calls for “ethnic cleansing”. The advocates prayed that action be taken against the guilty persons under Sections 120B, 121A,153A, 153B, 295A and 298 of the Indian Penal Code.

Further, an open letter signed by more than 200 people, including former chiefs of the armed forces, military veterans and concerned citizens, had been sent on December 31, 2021, to the Prime Minister and President of India, with a copy to the CJI, calling for “urgent action” by the government and the SC against those making threats of genocide. The retired military chiefs had pointed out that any breach of peace and harmony within the nation due to such threats “will embolden inimical external forces”. But sadly, one saw no action initiated by any of the above institutions on the above pleas. And the perpetrators calling for genocide roamed freely, brazenly posing with policemen and politicians.

Only when a PIL was filed by a journalist and a former judge of the Supreme Court did the SC send notices to the Union government, the Delhi Police and the State of Uttarakhand on January 12, 2022. Hence, police were forced to make the first arrest in the case — of Waseem Rizvi, alias Jitendra Narayan Tyagi, a recent convert to Hinduism — on January 13, 2022, almost a month after the genocide speeches were made. Yati Narsinghanand, head of a religious outfit and the chief organiser of the so-called ‘Dharma Sansad’, was arrested only on January 16, 2022, while he was holding a Pratikar Sabha to protest against the FIRs registered! One wonders if any religion calls for genocide as a tenet of the faith. Others named in the FIR have not been arrested yet at the time of this writing.

As citizens, should we be happy with this non-action or minimal action taken? Justice Madan Lokur, retired judge of the SC, in a recent interview to The Wire, clearly stated that the SC should have taken immediate suo motu action, or at least when the 76 eminent SC advocates wrote to the CJI, when the Executive failed to take action against those blood-curdling calls for genocide. He noted that “a call for genocide is genocide” under Article 3 of the Genocide Convention, to which India is a signatory. The speeches at Haridwar amounted to “a crime against humanity”, he said. He was of the firm opinion that the persons should have been behind bars and was “terribly disappointed” that the SC had not taken immediate action. And if the SC did not act, Justice Lokur said categorically, it would be “a horrifying scenario, a huge problem and a breakdown of the rule of law”.

Justice Rekha Sharma, a former judge of the Delhi High Court, too, wrote in the Indian Express on January 5, hoping that the CJI “in his wisdom will take a call” on the letter written by the 76 SC lawyers. She further pointed out that it is not just the CJI alone, but each judge of the SC enjoys equal constitutional authority and is under an obligation to protect the constitutional and fundamental rights of the people. Hence, any one of them could take cognisance of the blatant incitement to violence, though after having taken cognisance, the judge concerned should refer the matter to the CJI for allocating the same to an appropriate bench. This too does not appear to have happened.

If at all there is a lacuna in the law preventing the government from taking action against such calls for genocide, the SC is obliged under its own judgement of May 2, 2002 to lay down the law. The SC had said: “There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141...” One also hopes the SC will take up the several constitutional issues pending before it, the inaction on which has been called to its notice by a letter written by several eminent citizens in November 2021.

Now, as highly-divisive communal propaganda continues to be used in the election campaign, especially in UP, by high functionaries of the government and the ruling party, it is equally imperative now for the SC to step in and act immediately, given that the Election Commission has come up short on this count during previous elections, such as the Delhi Assembly elections, as well as so far this time.

In October 2020, Justice D Y Chandrachud had observed that the phrase ‘sentinel on the qui vive’ for the Supreme Court, signifying its role as the ‘watchful guardian’ of our democracy, may have become weather-beaten but judges must constantly remind themselves of its value “if the call of the constitutional conscience is to retain meaning.” Can we, ordinary citizens, anguished by the tearing of the constitutional and democratic fabric of the nation, respectfully ask the Supreme Court to act as the “sentinel on the qui vive”?

(The writer is with the Forum
for Democracy and Communal Amity – Karnataka Chapter)