EXCLUSIVE! 'If law enforcers become lawless...': Prashant Bhushan on 'Bulldozer Action' and 'Hate Speech'
For the police to beat up anybody in police custody is a very-very serious offense. It requires not only these police officers to be immediately suspended and dismissed from service. It requires them to be prosecuted and arrested and put in jail.
New Delhi: Amid the increasing tension following the National Herald case and summoning of former Congress President Rahul Gandhi by the Enforcement Directorate (ED), the Supreme Court is all set to hear the plea against Uttar Pradesh government’s bulldozer action. This is turning into a burning issue and the debate has also raged up across various social media platforms, including Twitter. The Centre and more particularly the judiciary are being accused of being biased against a particular community. To clear the haze regarding these issues, News24's Prateek Gautam spoke to senior SC advocate Prashant Bhushan.
Prateek: The Supreme Court is all set to hear the case regarding the demolition of property of people of a specific community. What do you have to say about it? Do you think the SC is late in hearing these petitions?
There have been various instances of hate speech as well and the difference of stance in acceptance of the cases by different High Courts. What is your take on this?
Prashant Bhushan: Yeah, so, I feel that what is happening in the country by way of what is called bulldozer justice, where the some governments and some chief ministers like this up Chief Minister Adityanath feel that they have the right to mete out instant justice by demolishing houses of people who are accused of creating some law-and-order problem. Now, the point is that, firstly, the government or the police is nobody to judge whether anybody is guilty of any offense or not. Even if somebody is accused of an offense, all that the government or the police can do is to register an FIR and investigate, and thereafter filed a charge sheet.
Thereafter, it is for the courts to decide whether that person is guilty of any offense or not. Here, of course, in the present cases, the government and the officials are merely saying that these people were involved in demonstrations against the BJP spokesperson about what she said regarding Prophet Muhammad.
The demonstrations or protests is certainly not a crime. Secondly, even if they have committed a crime, the government or the police cannot sort of punish them for that crime, they can only prosecute them at best they can arrest them, and thereafter file a charge sheet. Thirdly, the penal code does not provide bulldozing somebody's house as a punishment for any offense. You can't bulldoze somebody's house, that's not a punishment prescribed under the penal code. At best, they can be sentenced by the judiciary to jail or to some fine etc, not bulldozing of their houses. And lastly, in some of these cases, the houses did not even belong to the persons who are accused by the police. In the case of this Afreen Fatima, the house belongs to her mother, not to her father, who is accused by the police. So, you accuse somebody and then you demolish the wife’s property. This is certainly I mean, it's utterly absurd.
So, on multiple counts, this kind of action of bulldozer justice, as it is being called by the authorities and the chief minister, etc, is totally lawless. And it's a gross violation not just of the rule of law for every principle enshrined in the Constitution. It violates fundamental rights of citizens, and therefore, in the face of such egregious violations of the rule of law. It is the job of the higher judiciary, particularly the Supreme Court and the high courts to immediately takes suo-moto cognizance of what is happening.
If something so egregious is happening, then they should be taking very quick suo-moto notice and act immediately to stop this, but unfortunately, they didn't take any immediate action, then the Jamaat filed some petition and now at least they are hearing it. And I hope that they now take immediate action to sort of stop this, this kind of bulldozer justice that is going on.
They have to give notice to the person whose house it is, and what is the legality etc, give him an opportunity to explain that, whether the construction is legal or not legal, etc. And usually, the law also provides that in case the authorities do not agree with it, then the person must give be given at least one opportunity to appeal before some authority before any action is taken to demolish even if it is illegal construction. But in this case, or in these cases, the government's are virtually openly saying that these actions are being taken, because these persons were involved in protests or demonstrations, etc. That is certainly not sanctioned by any law in the country.
Prateek: Do you think that this bulldozer action has emerged as a political symbol?
Prashant Bhushan: Yes, unfortunately, you see, there are some governments who are sort of applauding this kind of extra judicial justice or instant justice that as it is called, and some chief ministers take great pride. In fact, this Yogi Adityanath said that ‘hum thok denge’ and there were so many sort of fake encounters carried out. So many people were either killed or maimed in these fake encounters, in this so-called instant justice. There was a film made about this called “Ab Tak 56” about these encounter specialists, as they are called, who carry out these fake encounters to meet out instant justice. Now, this kind of thing is an egregious violation of the rule of law.
But unfortunately, it seems that some people in this country are applauding this kind of instant justice because they feel that the that the judiciary, or the general machinery for the administration of justice is not working. Therefore, they feel that this kind of instant, sort of vigilante justice is justified, but certainly the courts cannot justify this.
The court the job of the courts, is to enforce the law, is to enforce fundamental rights. And therefore, they cannot say that this kind of instant vigilante justice is condemnable or is or can be allowed, they must put an immediate stop to this
Prateek: There is another row, the hate speech row which is in action, may it be Nupur Sharma and Naveen Jindal, which is happening due to which all these protests started, following the bulldozer action. But other than that, Zubair of Alt News, he called out in his tweet, Swami Yati Narsinghanand, and Bajrang Muni as ‘hate-mogers’ and an FIR was filed onto him.
At the very same time the Delhi HC dismissed a petition against minister Anurag Thakur, for his remarks ‘Desh Ke Gaddaron ko…Goli maro…’.
On one hand, the Delhi HC dismisses petition seeking action against these people. On the other hand, the Allahabad HC quashed the petition filed by Mohd Zubair. Which stance is right?
Prashant Bhushan: You see, hate speech is an offense. And clearly when Anurag Thakur or Kapil Mishra incite people to violence, and say ‘Goli maaro saalo ko’, etc. against particular people or particular communities, that's clearly an offence under the penal code. And therefore, not only a FIR should be registered against them, but they should be prosecuted. But that is not happening. And on the other hand, those people like Muhammad Zubair, who are pointing out, that these offenses are being committed, hate speech offenses are being committed, incitement to violence is going on, and yet no action is being taken against these people like Yati Narsinghanand or Anurag Thakur or Kapil Mishra, etc. FIRs are the registered against the person who's pointing out that an offense has been committed, it's absurd.
Both Delhi High Court and the Allahabad High Court are wrong in my view, Delhi High Court is wrong in dismissing petitions seeking a FIRs and criminal investigation into clearly hate speeches, or speeches inciting violence, which have been made by people who are within the BJP or allied to the BJP. And on the other hand, the Allahabad High Court is wrong in refusing to quash an FIR, which is totally frivolous, in my view, An FIR against a person who has just pointed out that these are the kinds of hate speeches which are being made, or these are the offenses, which are being committed by people who are close to the ruling party, or who are within the ruling party.
Prateek: There are some serious allegations against these people with the frivolity to make their opinions public, which is set cause communal disharmony. The image of these people and actions from past make them more ringfenced for a case to be accepted against them tending to the cause of communal disharmony. What do you have to say about this?
Prashant Bhushan: Well, I think, for the people need to need to point out where the judiciary is going wrong, where they are guilty of abdication of their duty. And they need to openly and strongly criticize the Judiciary for not doing their duty.
And wherever they do their duty or do some right thing, that people need to applaud that. That's the way that we can prod the Judiciary for doing the right thing for upholding the rule of law for upholding fundamental rights for doing their constitutional duty. When the judiciary is failing to do its duty, it is the job of the citizens to hold them to account at least in the eyes of public opinion.
Prateek: Coming back to today’s case, finally the SC is hearing about the bulldozer actions. Do you think this concept of instant justice is justified? Or maybe the action against the Hyderabad rape case accused who were killed in a shootout, which is now evident that it was a fake encounter.
Some day or the other it comes back to haunt you. Another instance is of Vikas Dubey who was killed when trying to escape from police custody. BJP ministers actually posting on social media that this is the return gift you will get with the aim of targeting a particular community. If on Friday you do this so on Saturday you will get that. How justified is this? IS this even a public discourse kind of thing? Is the public applauding this? And again, coming back to the final question regarding your stance on this entire bulldozer scenario.
Prashant Bhushan: See, I can't say about the current case because this is probably a vacation bench, which is hearing it what they will do, but I've already told you what they ought to be doing. Because it is the job of the Supreme Court to uphold the rule of law to protect fundamental rights, and to hold these people who are making a mockery of the rule of law accountable for this kind of vigilante justice or instant justice, as it is called.
So far as these atrocities which we have seen on video of policemen beating up these people, who are supposed to have protested, in police custody, and various members of the ruling party applauding that. For the police to beat up anybody in police custody is a very-very serious offense. It requires not only these police officers to be immediately suspended and dismissed from service. It requires them to be prosecuted and arrested and put in jail.
Because if the enforcers of the law themselves become totally lawless, as we are seeing in these videos, where they are just beating up brutally beating up people in police custody, then they must be held accountable. And for the ruling party or members of the ruling party or anybody to applaud this kind of lawless behaviour by the police is very, very reprehensible. Very reprehensible. Whether it's a crime or not, it is a different matter. I can't say whether that by itself amounts to a crime. But certainly, what these police officers have done by beating up people in police custody, that is certainly a very serious crime.