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Expressing Dissent Hallmark Of Democracy: Allahabad High Court Quashes FIR For Tweets Against UP CM

It is really so rejoicing, refreshing and remarkable that the Allahabad High Court while once again vindicating its impeccable track record of always espousing most vociferously the invaluable importance of dissent in a democratic country like India has in a latest, laudable, landmark, lambasting and learned judgment titled Yashwant Singh vs State of U.P. and 2 others in Criminal Misc. Petition No. – 13058 of 2020 delivered just recently on December 23, 2020 has stated in simple, suave, short and straight language most effectively, elegantly and eloquently that merely expressing dissent against the affairs of the State is not a criminal offence. Why can’t the citizens of a democratic and free country like India express dissent? How can anyone whether it is police or Chief Minister or anyone else stop anyone from expressing dissent in a nation like India?

It merits no reiteration that every Indian including the petitioner in this notable case – Yashwant Singh has the right to hold his own views on any given topic. No State or police or Centre or anyone else can force any Indian citizen not to have any particular view so long as there is no chance of riots breaking out or is most provocative for which there can certainly be no justification as public peace and public order are equally important and no individual can take it for granted that he or she can say anything so provocative that it encourages others to start fighting or indulging in violence.

To start with, Justice Pankaj Naqvi and Justice Vivek Agarwal who authored this cogent, commendable and courageous judgment sets the ball rolling by first and foremost stating forth in the opening para that, “Heard Sri Dharmendra Singh, learned counsel for the petitioner and Sri Deepak Mishra, the learned A.G.A, who does not propose to file any counter affidavit. With the consent of all, the writ petition is being decided on available materials, under the Rules of the Court.”

While proceeding ahead, the Bench then points out in the next para that, “This writ petition has been filed by the petitioner to issue a writ, order or direction in the nature of certiorari quashing the impugned FIR dated 2.8.2020, registered as Case Crime No. 371 of 2020 under section 500 I.P.C and 66-D of Information Technology (Amendment) Act, 2008, P.S. Bhognipur, District Rama Bai Nagar.”

To put things in perspective, the Bench then points out quite lucidly in the next para that, “The FIR lodged by the police alleged that petitioner from his twitter handle allegedly remarked that the Chief Minister of the State has transformed the State into a jungleraj in which no law and order prevails. It also makes reference to various incidents of abduction, demand of ransom and murders.”

Let me say this most clearly: I just don’t subscribe with what the petitioner has said. To level such a serious allegation that the Chief Minister of the State has transformed the State into a jungleraj in which no law and order prevails is downright preposterous and most absurd! Personally speaking, I always admire Yogi Adityanath for taking prompt action against all those who induluge in crime of any kind. We all know too very well that it is under the leadership of Yogi Adityanath that mafias now fear for their lives and their property is being attached speedily! As I stay myself in UP in Meerut, I know one thing for sure that Yogi is a very good administrator and he always ensures that no one is allowed to block roads as we saw during the time of Citizienship Amendment Act (CAA) agitation even though we saw how Shaheen Bagh was blocked and people who wanted to move from Delhi to Noida or vice versa had to face enormous difficulties!

It cannot be denied that UP is a very big state with maximum population of more than 22 crores,  It is not for nothing that the former UN Secretary General Ban ki moon had termed UP as the “rape and crime capital of India and this he said when the incumbent CM Yogi Adityanath was nowhere in the picture! It is not for nothing or not for fun that the incumbent UP CM Yogi Adityanath had himself demanded High Court Bench at Gorakhpur way back in 1999 while he was MP from there and that too most forcefully! It is not for nothing that many UP CMs like Sampoornanand, ND Tiwari, Rajnath Singh and others have earlier recommended the creation of a high court bench in West UP! It is not for nothing that former UP CM Mayawati had recommended UP to be partitioned and also not just recommended a high court bench for West UP but proposed that it be created as a separate state and UP be partitioned into few parts! For just 3 lakh people of Andaman and Nicobar islands, there is a bench in Port Blair but for more than 9 crore population of West UP not a single bench!

It is not OK that when Sampoornanand who was UP CM recommended creation of a high court bench in West UP at Meerut, the then PM Jawaharlal Nehru overruled him as he felt only Lucknow was ideal place where bench was created on July 1, 1948 by him even though it was so close to Allahabad where high court is located! It is not OK that when Justice Jaswant Singh Commission headed by former Supreme Court Judge Jaswant Singh was appointed by former PM late Mrs Indira Gandhi to look into where all high court benches are needed in late 1970s and when he recommended 3 benches for UP at Agra, Nainital and Dehradun, not a single bench was created even though benches were created at Aurangabad in Maharashtra which already had two benches at Nagpur and Panaji, at Madurai in Tamil Nadu and also at Jalpaiguri in West Bengal! It is not OK that once again in 2018 Centre decided to create one more high court bench in Maharashtra for just 6 districts at Kolhapur but not a single for West UP or even the whole of UP! Why is UP repeatedly slapped on its face and not a single more bench approved especially when lawyers of West UP have been repeatedly agitating for the same since last more than 6 decades?

It is not OK that when lawyers of West UP went on strike for 6 months from July to December in 2001, Centre did not take any step to address their demand for a high court bench in West UP inspite of assuring them! It is not OK that when lawyers of West UP again went on strike later, Centre assured them that their grievances would be looked into but suddenly came forward with ridiculous decision to create 2 more high court benches for Karnataka at Gulbarga and Dharwad for just 4 and 8 districts and which already had a bench at Hubli but not a single for the 26 districts of West UP! It is not OK that when lawyers of West UP went on strike for 3 to 4 months in 2014-15, the Centre assures them that their demand would be looked into but yet again nothing is done! It is not OK that the lawyers of West UP have boycotted work many times in last 50 years sometimes for 2 days in a week – Wednesday and Saturday yet not a single bench set up here!

It is no ordinary matter that the lawyers of West UP have been on strike uninterruptedly every Saturday since May 1981  till now which means for nearly 40 years against denying West UP even a single bench of high court! It is no ordinary matter that Justice Jaswant Singh Commission had disclosed that 57% of pending cases are from West UP and still it has not even a single bench of high court! It is no ordinary matter that the more than 9 crore people of West UP have to perforce travel more than 700 km on an average all the way to Allahabad to get justice as the elected representatives have only made tall promises but never cared to implement it!

It is a national disgrace that UP which has maximum pending cases in India among all the states which is more than 10 states put together has just one high court bench and that too just 200 km away from Allahabad where high court itself is located at Lucknow and nowhere else! It is a national disgrace that UP which is among the largest States, has maximum population – more than 23 crore, maximum districts – 75, maximum constituencies – 80,  maximum MPs – 80, maximum MLAs – 404, maximum PM including Narendra Modi who represents Varanasi as an MP, maximum pending cases – more than 10 lakh and here too West UP accounts for more than half of pending cases as noted by Justice Jaswant Commission about 57%, maximum Judges both in High Court – 160 and also in lower courts, maximum vacancies of Judges, maximum members in UP Bar Council and which is the largest Bar Council in the world yet the former Chairman of UP Bar Council – Darvesh Yadav who was first woman to get appointed to this post was murdered cold blooded right in court premises in Agra which is again in West UP by pumping bullets on her, maximum poverty, maximum villages more than one lakh, maximum fake encounters killings, maximum custody killings, maximum dowry cases, maximum bride burning cases, maximum cases of human rights violations, maximum robberies, maximum dacoities, maximum undertrials, maximum cases of crime, loot, arson and riots and here too West UP tops with Saharanpur riots, Meerut riots, Muzaffarnagar riots tarnishing our international reputation to the extent that former UN Secretary General Ban ki Moon termed UP as “crime and rape capital” of India and what not yet Centre till now from 1948 when a bench was created in Lucknow which is so close to Allahabad is not prepared to create even a single bench for not just West UP but for entire UP?

It is a national disgrace that UP sends maximum MPs to Lok Sabha – 80, maximum MPs to Rajya Sabha – 30, maximum MLAs to State Assembly – 404 MLAs and maximum members to State Legislative Council – 100 MLAs and what not yet has least benches just one? It is a national disgrace that inspite of former PM Atal Bihari Vajpayee having vociferously raised the demand for a high court bench in West UP in 1986 right inside Parliament still 34 years later not a single bench created not just in West UP but in any hook and corner of UP except Lucknow created by Nehru in 1948!

How long will Centre ignore that only Karnataka and Maharashtra have gained from the recommendations of 230th Law Commission recommendations when 2 more benches were created at Dharwad and Gulbarga for just 4 and 8 districts even though the pending cases of Karnataka are just less than 2 lakh and that of UP are more than 10 lakhs and that of West UP alone are more than 5 lakhs still West UP has no bench and UP has just one bench? How long will Centre ignore that Karnataka has just 6 crore population and still it has high court at Bangalore and 3 high court benches at Hubli, Dharwad and Gulbarga but West UP has population of more than 9 crores still it has not even a single bench leave alone having high court? How long will Centre ignore that the High Courts and Benches of 8 states are nearer to West UP as compared to Allahabad High Court and even Lahore High Court in Pakistan is nearer to West UP than Allahabad? How long will Centre ignore that Allahabad High Court is the biggest court in whole of Asia with  maximum Judges at 160 and also among the oldest courts which completed its 150 years on March 17, 2016 yet has just one bench only?

It is most shameful and most disgraceful that Allahabad High Court has the dubious distinction of accounting for 14,207, or 98% of a total of 14,484 appeals that are pending adjudication for more than 30 years as was noted by a Bench of Apex Court comprising of Justices LN Rao and S Ravindra Bhat and yet no Prime Minister starting from Jawaharlal Nehru to present Narendra Modi has ever dared to create one more Bench apart from the one at Lucknow created in 1948 which is so close to Allahabad! What a pity that an anguished Supreme Court said that, “These facts pose a challenge to the judicial system, inasmuch as the right to speedy trial would also include the right to speedy disposal of appeals of those convicted. If such appeals are not taken up for hearing within a reasonable time, the right of appeal itself would be illusory, inasmuch as incarcerated convicts (who are denied bail) would have undergone a major part, if not whole of the period, of their sentences!”

It is most shameful and most disgraceful that Allahabad High Court has the dubious distinction of accounting for 14,207, or 98% of a total of 14,484 appeals that are pending adjudication for more than 30 years as was noted by a Bench of Apex Court comprising of Justices LN Rao and S Ravindra Bhat and yet no Prime Minister starting from Jawaharlal Nehru to present Narendra Modi has ever dared to create one more Bench apart from the one at Lucknow created in 1948 which is so close to Allahabad! What a pity that an anguished Supreme Court said that, “These facts pose a challenge to the judicial system, inasmuch as the right to speedy trial would also include the right to speedy disposal of appeals of those convicted. If such appeals are not taken up for hearing within a reasonable time, the right of appeal itself would be illusory, inasmuch as incarcerated convicts (who are denied bail) would have undergone a major part, if not whole of the period, of their sentences!”

To be sure, Justices Rao and Bhat also noted that over 33,000 appeals were pending in these 10 High Courts for a period between 20 to 30 years, and again Allahabad High Court had the lion’s share accounting for nearly 20,000 of them. The appeals waiting their turn to be heard for the last 10 to 20 years numbered at 2,35,914 of which 88,732 were in Allahabad High Court! Why should all such steps not be taken to put our judicial system back on rails and not allow it to be in ventilator as most unfortunately we have allowed in last 74 years! Why can’t more high court benches be created in UP so that cases are expedited in different benches as was recommended by the 230th report of Law Commission of India as UP has maximum pending cases in India but which till now has been implemented only in peaceful states like Karnataka and Maharashtra which is most shocking? Population of Karnataka is just 6 crore and that of West UP is 9 crore still Karnataka has high court at Bangalore and three Benches at Hubli, Dharwad and Gulbarga but West UP has not even a single Bench and UP has just one! Pathetic!

Why when former CJI Ranjan Gogoi while deciding on a PIL brought by a woman lawyer KL Chitra for a high court bench in West UP in 2018 fully appreciated the reasons for setting up a high court bench in West UP but added that it is for Centre to take a decision and yet even after 74 years of independence if Centre fails to act not just for West UP but for whole of UP should Supreme Court not take suo motu action and order for more benches not just in West UP but also in other different parts like Jhansi in Bundelkhand, Gorakhpur in Purvanchal and other needy places? Why Supreme Court never acts on this? It must act now most decisively as this serious issue directly concerns the judiciary! No more dilly-dallying now!

It is high time and the recommendations of Law Commission of India to create more benches must be implemented in big states like UP which has just one bench and that too very near to Allahabad at Lucknow and nowhere else even though West UP witnesses maximum incidents of crime and owes for more than half of the pending case of UP still has no Bench due to which poor people are compelled to travel whole night many times without reservation all the way to Allahabad which is about more than 700 km away from most of the districts of West UP which has 26 districts!

Anyway, coming back to the case in hand, it must be still said that even though Yashwant Singh had not stated the truth and had wrongly blamed Yogi Adityanath alone for the pathetic law and order condition in UP but that does not mean that he be sent to jail for expressing his view which he holds. But he had a valid point that law and order situation is very bad in UP till now! We must learn to tolerate dissenting views and this is exactly the sum and substance of what the Allahabad High Court has held in this case so explicitly, elegantly and effectively! This is what is most objectionable and problematic to which even Allahabad High Court took strong exception and very rightly so! Allahabad High Court has maximum Judges at 160 and is biggest court in not just India but in whole of Asia and UP Bar Council has maximum members all over the world then why UP has only one Bench is the biggest vexing question? Why a state like UP where there is so much of lawlessness are more benches not being created so that cases are disposed of quickly and those accused of crimes are brought to justice quickly?

On the one hand, it is stated in this judgment that, “Learned counsel for the petitioner submits that right to comment on the affairs of the State is well within his constitutional right envisaged under Article 19 of the Constitution of India. Mere dissent does not amount to criminality, FIR has been lodged malafidely only with a view to coerce the petitioner to stop expressing his dissent against the State government, no offence is made out, FIR be quashed.”

On the other hand, it is then stated in the next para of this judgment that, “Learned A.G.A, opposed the submission. The offence alleged are Section 66-D of Information Technology Act and Section 500 IPC. Section 66D is extracted hereunder:

“Punishment for cheating by personation by using computer resource. – Whoever, by means of any communication device or computer resource cheats by personation, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees.””

Most significantly, what forms the cornerstone of this judgment is then stated ahead that, “We after analysing the above provisions, qua allegation made in the FIR do not find even remotely a commission of offence under Section 66-D, as said provision relates to cheating by personation. It is not the case of prosecution that while committing the overt act, the petitioner either tweeted using other’s twitter handle or was there any allegation of cheating. No offence under Section 66-D I.T. Act is made out. In so far, Section 500 IPC is concerned, same is also not made out, as the alleged tweet cannot be said to fall within the mischief of defamation. Expressing dissent on law and order situation in the State, is a hallmark of a constitutional liberal democracy like ours, constitutionally protected under Article 19 of the Constitution.”

To clarify, I have underlined the last line of the above para as it is the bottom-line of this notable ruling! It is then further and finally stated that, “In view of above, the writ petition is allowed. The FIR dated 2.8.2020, registered as Case Crime No. 371 of 2020 under section 500 I.P.C and 66-D of Information Technology (Amendment) Act, 2008, P.S. Bhognipur, District Rama Bai Nagar and consequential proceedings are quashed. The party shall file a computer generated copy of this order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (s) (preferably Aadhar Card). The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.”

One only hopes that instead of charging dissenters like Yashwant Singh under various charges for expressing dissent under different Acts, it would be far much better if Yogi took concrete measures to create more high court benches so that the people benefit as a whole especially those in West UP who have to travel so far all the way to Allahabad to attend court hearings in the high court! Yogi in 1998 had himself demanded high court bench in Gorakhpur but now even after more than three and a half years of being in power, he is initiating no steps for the same even though Union Ministers like Rajnath Singh, Gen VK Singh and many others have openly supported the demand for a bench in West UP!

Needless to say, it is high time that he addresses this key issue of creating more high court benches in UP as even former Union Cabinet Minister Satyapal Singh and BJP MP from Baghpat had courageously and confidently demanded creation of 5 high court benches at Meerut, Agra, Jhansi, Gorakhpur and Varanasi instead of concentrating only on creating film city like Mumbai in UP which does not benefit the common man all across the state and this is exactly what he seems to be ignoring for reasons that I just cannot second guess! Law and order should be the first priority of the CM and I must say that he has done many things on this score for which I commend him but on creating more high court benches as recommended by Justice Jaswant Singh Commission who recommended 3 high court benches for undivided UP in mid seventies but not a single bench created till now after even more than 40 years! This is the real tragedy!

One final thought: State must have more tolerance for dissent and this has been repeatedly underscored by many eminent High Court and Supreme Court Judges including Justice Madan B Lokur who is a former Supreme Court Judge and Justice Deepak Gupta who is at present a Supreme Court Judge. It is only when we learn to tolerate dissent and people holding different views than us can we progress and prosper as a truly democratic country and create a niche for our nation among the entire comity of nations most distinctly! Booking those who dissent under penal laws is most outrageous and most demeaning for which there can be no justification whatsoever! This is what the Allahabad High Court in this leading case has sought to convey most clearly and most rightly also! Am I right? I leave it to my esteemed readers to decide!

Sanjeev Sirohi

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