'FIR against Us an Afterthought, No Offence Made Out': Jignesg Mevani & Umar Khalid move Bombay HC

Written by Sabrang Staff | Published on: January 17, 2018
Recently elected independent MLA, Jignesh Mevani and student leader Umar Khalid have separately challenged the malafide actions of the Pune police in booking them for inciteful speech. Both have filed writ petitions in the Bombay High Court praying for a quashing of the malafide FIRs against them. In an FIR filed on January 3, the Pune police have filed this FIR for separate speeches made at Pune on December 31, 2017.

jignesh and umar
Image courtesy: cjp.org.in

CJP has carefully de-constructed these speeches to show how in no way do they connote hate speech or inciteful speech

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FIR Against Hate Speech

For the past fortnight, Dalit basis and communities have been targeted with combing operations by different sections of the Maharashtra police, causing fear and terror in different areas. Kalyan east, Latur and Nanded have been particularly badly affected. Two men from the far, Hindutva right, also booked as the agent provacateurs  for the Bhima Koregaon violence, Milind Ekbote and Mandohar (Shambhaji Bhide) have escaped state action.

Jignesh Mevani’s petition (Writ Petition Criminal 118/2018)  was filed last week and Umar Khalid’s yesterday. Calling the FIR an “afterthought”, filed after more than 72 hours of speeches delivered, it talked about the grave risk to Jignesh Mevani’s life and emphasised on the need to protect him. It further stated that though the Section 153A was charged on Mevani, nothing in the speech makes the “incitement” standard for permissible restrictions on freedom of speech and expression as explicated by the Honourable Supreme Court in Shreya Singhal v/s Union of India, 2015.

Making a similar point, Umar Khalid in his petition (Writ Petition Criminal 220/2018), further said that for an offence to be identified as committed under Section 153A IPC it is necessary that the intent and outcome of an action would be promoting enmity between different groups on grounds of religion, race, place of birth, resident, language etc. where such actions are a prejudicial to maintenance of harmony. It said that nothing done by Umar Khalid (or Mevani) promotes enmity between religious groups or is prejudicial to maintenance of harmony.  It said that in the absence of knowledge about the specific communities that had been “alienated” by his speech, the Section 152A could not be applied.
 
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Spontaneous protests erupted across the state of Maharashtra after Saffron flag bearers attacked Dalits who had come to Koregaon, 30 kms.away from Pune to commemorate the bi-centenary of the battle of BhimaKoregaon, an event of assertion of the Dalit identity. In the background of these protests and a Bandh that was called immediately after, the Vishrambaug Police station, Pune police registered FIRs against Umar Khalid, a PhD student from JNU along with the newly elected MLA in Gujarat, JigneshMevani under Sections 153A, 505 and 117. The FIR mentioned Umar Khalid as accused no. 1. Responding to this, Umar has filed a petition in the Bombay High Court praying for thequashingofall such false cases charged against him.

Citizens for Justice and Peace (CJP), a civil rights organisation committed to defending the rights of those charged with false cases for defending rights of the oppressed, has with its legal aid team assisted the filing of the petitions of Jignesh Mevani and Umar Khalid. Both the petitionsmay be read here.

Jignesh Mevani Petition
 
Umar Khalid Petition
 
The petitions, say that even if the FIR is taken at its face value, the charges [mentioned in the FIR] do not contain allegations of cognizable offences.
 
Details of Jignesh’s petition
On the eve of the bi-centenary of the battle of BhimaKoregaon, a program named “ElgaarParishad” had been organised in Shanivarwada, Pune in which JigneshMevani was invited as a speaker along with other luminaries and activists from various fields such as Justice KolsePatil, politician and Dalit leader Mr. Prakash Ambedkar, activist Ulka Mahajan, SoniSori, Umar Khalid and others. The FIR had quoted the following portions from Mevani’s speech, “If we want to win against the new peshwai, if we want to take this BhimaKoregaon struggle ahead, if we want to get inspired by this struggle, this wont happen through electoral politics. I believe that people who are fighting for the people of Maharashtra and Gujarat should be there in the Assembly and the Parliament of this country. But Annihilation of caste will happen through the struggle on the streets. The rule of one section over the other will end only with the struggle on the streets.”
 
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The petition averred, “The meeting ended peacefully and there was absolutely no call for any enmity between any of the communities nor was there any hate speech or call for violence”. It added, “No protection was given by the police to the members of the Dalit community when they were attacked [in BhimaKoreagon] nor were any measures taken by the police to control the law and order situation when the call for the Bandh was given. As the Respondent No.1 [State of Maharashtra] failed on both the counts in maintaining law and order in the State, they have falsely filed an FIR against the Petitioner to put the entire blame of their failure on the Petitioner.”

It further added that for an offence to be identified as committed under Section 153A IPC it is necessary that the intent and outcome of an action would be promoting enmity between different groups on grounds of religion, race, place of birth, resident, language etc. where such actions are a prejudicial to maintenance of harmony. It said that nothing done by the Jignesh Mevani promotes enmity between religious groups or is prejudicial to maintenance of harmony.  It said that in the absence of knowledge about the specific communities that had been “alienated” by Mevani’s speech, the Section 152A could not be applied.

Similarly, regarding Section 505 dealing with statements conducive to mischief, also charged upon him, it said that not a single false fact or incident was reported by the Petitioner so as to create any mischief.

Regarding the Section 117 of the Indian Penal Code, which talks about Abetting commission of Offence by the Public or by more than 10 persons, the petition stated that the entire FIR is silent about what offence has been abetted by the Petitioner.

The petition made a case that no purpose would be served by having the investigation continue, and hence exercising its powers as mentioned in “MadhavraoJiwaji Rao Scindia v SambhajiraoChandrojiraoAngreAIR 1988, it may, taking into consideration the special facts of the case, quash it.”
 
Details of Umar Khalid’s petition
On the eve of the bi-centenary of the battle of BhimaKoregaon, a program named “ElgaarParishad” had been organised in Shanivarwada, Pune in which Umar Khalid was invited as a speaker along with other luminaries and activists from various fields such as Justice KolsePatil, politician and Dalit leader Mr. Prakash Ambedkar, activist Ulka Mahajan, SoniSori, JigneshMevani and others. The FIR had quoted the following portions from Umar’s speech, “Bhima – Koregaon struggle can be made the future, its time to resist, will fight the struggle and win in this struggle will be the homage to the martyrs. The end of new Peshwai will be the homage to martyrs of Bhima-Korgaon
 
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The petition averred, “The meeting ended peacefully and there was absolutely no call for any enmity between any of the communities nor was there any hate speech or call for violence”. It added, “No protection was given by the police to the members of the Dalit community when they were attacked [in BhimaKoreagon] nor were any measures taken by the police to control the law and order situation when the call for the Bandh was given. As the Respondent No.1 [State of Maharashtra] failed on both the counts in maintaining law and order in the State, they have falsely filed an FIR against the Petitioner to put the entire blame of their failure on the Petitioner.”

Calling the FIR an “afterthought”, filed after more than 72 hours of speeches delivered, it talked about the grave risk to Umar Khalid’s life and emphasised on the need to protect him.

It further stated thatthoughthe Section 153A was charged on him, nothing in his speechmakes the “incitement” standard for permissible restrictions on freedom of speech and expression as explicated by the Honourable Supreme Court in Shreya Singhal v/s Union of India, 2015.It added that his speech was completely distorted and taken out of context:

Similarly, regarding Section 505 dealing with statements conducive to mischief, also charged upon him, it said that not a single false fact or incident was reported by the Petitioner so as to create any mischief.

Regarding Section 117 of the Indian Penal Code, which talks about Abetting commission of Offence by the Public or by more than 10 persons, the petition stated that the entire FIR is silent about what offence has been abetted by the Petitioner.

The petition also said that the FIR was “clearly politically motivated” as Umar has consistently taken public positions against the ruling party. It mentioned an earlier effort to embroil Umar Khalid in completely unfounded criminal proceedings when an FIR was registered by Delhi police on February 11, 2016. He was arrested by the Delhi police as per that FIR and was admitted to bail after 36 days, i.e. March 18, 2016. Till now, no charge-sheet has been filed in that case. The bail order that was issued on March 18, required Umar to take permission of the court while traveling out of Delhi, however, taking note of his conduct there was a stipulation in that condition. Since then, he travelled to several places, addressed public meetings where he has been a vocal opponent of the ruling party.

In the light of these factsthe petition made a case thatno purpose would be served by having the investigation continue, and hence exercising its powers as mentioned in “MadhavraoJiwaji Rao Scindia v SambhajiraoChandrojiraoAngreAIR 1988, it may, taking into consideration the special facts of the case, quash it.”