Why Is Yogi Adityanath Immune to Prosecution Over Hate Speech?

With UP govt denying permission to prosecute Yogi, questions are being raised on the immunity enjoyed by an MP.

More loyal than the king himself seems to be just right to describe the top bureaucrats of Uttar Pradesh when it comes to shifting loyalties soon after a change of guard in the state.

The servile attitude of the babus of UP was evident in the Allahabad High Court on 11 May, when the state Chief Secretary, Rahul Bhatnagar, apprised everyone that the government had refused sanction for the prosecution of Yogi Adityanath, the then Member of Parliament from Gorakhpur and the present Chief Minister of the state.

Also Read: UP Govt Refuses CM Yogi Adityanath’s Prosecution in 2007 Riots

Seeking Sanction for Prosecution

Yogi Adityanath continues to hold office as an MP from Gorakhpur and as news reports suggest, will not contest polls for an MLA before presidential elections due in July.

The question is about the immunity enjoyed by an MP and whether this particular case is an exception. Public servants, including MPs, enjoy immunity from prosecution under Article 19 of the Prevention of Corruption Act (1988), that lays down the pre-condition of ‘sanction’ for the court to take cognisance of an offence.

But with Yogi Adityanath in the driver’s seat, is it erroneous to conclude that the state administration has certainly sought to grant ‘underserved waiver’ to the current chief minister?

U-Turn by UP Government

The case pertains to the alleged hate speech by the politician in Gorakhpur in 2007, which led to communal riots in the area.

Chief Secretary Bhatnagar, who was present before the bench of Justices Umesh Chandra Srivastava and Ramesh Sinha to file an affidavit, conveyed the decision of the government.

The petitioner in the case, Parvez Parwaiz – a journalist and a social worker hailing from Gorakhpur – told The Quint that the investigations in the case were over way back in 2014. Following the probe, the counsels of the UP government submitted four affidavits in the court saying that there were substantial evidence against the accused and the government advocate had sought sanction for the prosecution of the accused.

He says that the court was even told that the matter had been referred to the Principal Secretary (Law) for his final report and recommendations. Parwaiz questions the wisdom of the UP government which has now taken an absolute U-turn by saying that there was no evidence found against Yogi Adityanath.

Parvez Parwaiz says that if there was no evidence found against the accused, how come no final report (FR) was filed in the case and investigations went on and on!

Also Read: Gorakhpur Riots Case: Allahabad HC Summons UP Chief Secy

Overlooking Eyewitnesses and Evidence

Parwaiz goes on to say that the pretext of CD tampering is a false premise taken by the government as there were hundreds of local journalists and equal number of government officials who are witnesses to the alleged hate speech. Why have these people been overlooked?

Parwaiz said that his counsel Syed Farman Admed Naqvi even told the court that Yogi Adityanath, in an interview to a private news channel, had accepted publicly that he had delivered this inflammatory speech in Gorakhpur.

According to Naqvi, such an admission amounts to extra-judicial confession. The next hearing in the case is slated for 7 July, when the courts re-open after the summer break.

When Is the Sanction Required?

Anoop George Chaudhary, Senior Advocate, says that there are Supreme Court judgements which say that sanction against a Member of Parliament is required only if an act is carried out during the course of duty, however, no such sanction is needed when off duty.

He adds that this is a legal issue and the high court has given the petitioner the liberty to challenge the refusal to grant permission of prosecution by the state government.

Also Read: No Riot in Gorakhpur in 15 Yrs: Adityanath in Parl Farewell Speech

Legal Options Available

Another senior advocate of the Supreme Court, Pradeep Rai says if the accused person has gone on record to say that he did make such statements, it is up to the petitioner to submit before the courts all such material which show that the accused himself had made this admission to a news channel.

Also Read: 1 Month, 10 Big Decisions: Yogi Adityanath’s Report Card So Far

(The writer is a freelance TV journalist.)