Supreme Court Reserves Judgment In Plea Challenging Denial Of Sanction To Prosecute UP CM Yogi Adityanath In 2007 Case Alleging Hate Speech

The Supreme Court on Wednesday reserved judgment on a plea challenging the denial of sanction to prosecute Uttar Pradesh Chief Minister Yogi Adityanath in a case alleging making of hate speech in 2007. The matter was heard by a bench comprising Chief Justice of India, N.V. Ramana, Justice Hima Kohli and Justice C.T. Ravikumar. 

The petitioner Parvez Parwaz alleged that Yogi Adityanath had made anti-Muslim hate remarks while addressing "Hindu Yuva Vahini" activists in a meeting held in Gorakhpur on January 27, 2007. He challenged the decision taken by the UP Government on May 3, 2017 to refuse sanction to prosecute the accused in the case and also the closure report filed in the case. He had earlier approached the Allahabad High Court, which dismissed the petition on February 22, 2018, following which he filed the Special Leave Petition before the Supreme Court.

Arguments Raised

Advocate Fuzzail Ayyubi, appearing for petitioner, started his first submission by underscoring the issue, which was-

"Whether the State can pass an order under Section 196 Cr.P.C. in respect of a proposed accused in a criminal case who in the meantime gets elected as the Chief Minister and is the Executive Head as per the scheme provided under Article 163 of the Constitution of India."

He stated that this issue had not been dealt by the Allahabad High Court in its order dated 22 February, 2018. The question that thus arose was whether the Chief Minister, as an executive head, could participate in the sanction process. 

He highlighted other issues raised before the High Court and stated that the first issue was that investigation did not inspire confidence and therefore it needs to be transparent. The CJI enquired–

"Once a closure report is filed in the case, where is the question of sanction? It is an academic question...If there is no case, where will the question of sanction come?"

To this, the petitioner stated that there was a case as there was a hate speech, there was a DVD found, an FSL report came and a draft final report (DFR) was prepared. Prima facie, he stated, a case was made and thus a sanction was sought which was declined between the Law department and the Home department. Thus, Adv Ayyubi stated that the department itself decided and declined the issue. 

State opposes the plea

Senior Advocate Mukul Rohatgi, appearing for the State of Uttar Pradesh, stated that nothing remained in the case as CSFL had stated that the CD in question, which had the alleged hate speech recording, was tampered and fake. He stated that there was a closure report to that effect as well, which was accepted. He also stated that the matter was not to go to the CM as only when there was a dispute between the Law Department and the Home Department, then the CM was the final arbiter. However, in the present case, the Law Department had opined that if the CD was tampered and fake, there was no question of any sanction and the Home Department had concurred with the same. 

Adv Ayyubi stated that as far as the DFR was concerned, the investigation agency had clearly indicated that the crime branch had found offences under Section 143, 153, 153A, 295A and 505 I.P.C. to be made out. He stated that the offences had been made out and the five accused had been named. As per Adv Ayyubi, this was being declined by the Law Department.

CJI Ramana orally remarked that the issue raised by the petitioner was an academic one. He stated that–

"The issue you are raising is academic issue...When the sanction will come? When there is a criminal proceedings going on. If there is no criminal proceeding, how will there be sanction?...On merits it has already been discussed that if there is a broken CD, it cannot be sent for forensic examination."

Adv Ayyubi stated that as per the High Court, when he filed a case under Section 156(3), he gave a CD which was broken and that there was a subsequent CD which they say he had given under Section 161. He said that the statements are there in the public domain and that Adityanath had admitted making the speech in a television interview, which will amount to an extra-judicial confession. Therefore, it is immaterial if the CD was broken or tampered.

Opposing the arguments by Adv Ayyubi, Sr. Adv. Rohatgi stated that the petitioner had submitted a CD in 2008 which was broken and that after 5 years, the petitioner gave another CD which was found to be tampered. Later, as per Rohtagi, the petitioner gave a third CD. He stated that the issue was that the CDs were either tampered or broken. There was an absence of CFSL report which was later summoned by the Law Department, after which the Law Department made a decision, which was concurred with, by the Home Department. Rohtagi reiterated that as per the rules, only in cases where there existed a dispute between the Law Department and the Home Department, did a matter go to the final authority, that is, the Chief Minister. Since such a dispute did not exist in the present case, he stated that the matter was not to be sent to the Chief Minister.

Sr. Adv. Rohtagi stated that while the petitioner says he was a public spirited individual but his history showed that he had criminal cases against him including him being detained under the National Securities Act, 1980. He further stated that the court should impose costs on the petitioner–

"You cannot go on beating a dead horse after 15 years...just because the man happens to be CM today...If this is the state of the institution, does it inspire confidence?...If there is no material, there cannot be sanctions. I submit that your lordships should reject this with costs."

In this context, Adv Ayyubi quoted a five judge bench in the case of Madhya Pradesh Special Police v. State Of Madhya Pradesh & Ors (2004) which stated that–

"Article 163 has been extracted above. Undoubtedly, in a matter of grant of sanction to prosecute the Governor is normally required to act on aid and advice of the Council of Ministers and not in his discretion. However, an exception may arise whilst considering grant of sanction to prosecute a Chief Minister or a Minister where as a matter of propriety the Governor may have to act in his own discretion. Similar would be the situation if the Council of Ministers disable itself or disentitles itself".

"Okay, we will pass orders", CJI said closing the hearing.

With this, the Supreme Court reserved its judgement in the matter.

CASE TITLE: PARVEZ PARWAZ AND ANR. v. THE STATE OF UTTAR PRADESH AND ORS. | SLP(Crl) No. 6190/2018

Click Here To Read/Download Order