Should Hatred Win Elections? A Mockery of Values and Principles Should Hatred Win Elections? A Mockery of Values and Principles Teesta Setalvad Drama unfolded in Pilibhit this week after advocate Mohd Assad Hayat of the Awaami Council for Democracy and Peace closely associated with the Citizens for Justice and Peace filed an appeal in the Sessions Court against the order of the judicial magistrate dated 5.3.2013 acquitting BJP’s Member of Parliament in a criminal case related to spewing hatred and venom during the course of an election campaign (which he incidentally won after polarizing the populace in the May of 2009. Only after advocate Hayat had filed his appeal on May 25, and the hearings conducted on Monday May 27, 2013 did the state belatedly file its appeal on May 29, 2013. Further hearings have now been scheduled for June 11. Months back, on November 9, 2012 prominent citizens of the country including the author of this column had written to chief minister Akhilesh Yadav warning that the state of UP under his government and party was not taking the prosecution of Varun Gandhi’s Hate speech seriously and the case was inching – due to the deliberate casualness of the prosecution towards an acquittal. Taking no heed of these conscientious warnings, cynically the government of the Samajwadi Party that rode to power only in February last year has been making the most unspeakable compromises with communal forces. A close analysis of not just Uttar Pradesh since 2012, but all bouts of major communal violence since the early 1960s, but especially since the aggressive anti-minority pogroms of the early 1980s, the systematic use of hate speech and hate writing to stoke passions and create an atmosphere conducive to physical attacks on sections of the population have been well documented. That the BJP the parliamentary wing of its ideological backbone the RSS consistently use hate speech within India’s democratic framework, even lending shelter to the more rabid fellow travelers from the VHP and Bajrang Dal is a matter of shame for any parliamentary democracy in the 21st century. As the debate of Varun Gandhi’s acquittal carries on in, few questions have been raised at the legality, ethics and morality of the use of hate speech during elections. Tehelka ‘s shocking expose reveals how several dozen witnesses were won over by the Samajwadi party and prosecutor to ensure that they turned hostile. This evidence now lies in the appeal. The brazenness of the offences, uttering unspeakably filthy language that under the present law would have debarred from Parliament had he dared speak them within the “august” precincts of the House fall in violation of Articles 153, 295 and 505 of the IPC and Section 125 of the Representation of People’s Act. This member of Parliament instead of facing the proceedings squarely has in a cowardly manner refused to give his voice sample. In law, the court ought to have drawn an adversarial inference since the CDs have on independent investigation by the FSL found to be authentic. The prosecution, being handled currently under the home department of the Samajwadi Party simply chose to ignore the fact that 34 witnesses examined had turned hostile, choosing not to declare them hostile and not subjecting them to rigorous cross examination. FSL laboratories Mr Jain was not examined as witnesses as were the DM Mahendra Singh Agarwal and SP Rajendra Prasad who were conveniently dropped. The Court, ignoring the vast powers it ahs under Section 311 of the CRPC read with 165 of the Evidence Act chose to turn a blind eye to the deliberately limp and broken prosecution. Over50 other key witnesses were inexplicably dropped. On May 14, 2009, NDTV news channel had intervened filing an application that authenticated the CD telecasting the infamous speech on the network. There was no due appreciation of evidence by the Magistrate’s court. Even before the acquittal announced in the judgement of 5.3.2013, we had filed an intervention application under section 311 urging that the Court exercise its powers under Section 311. This too had been rejected by the Judge. Interestingly Varun Gandhi has not denied his presence at the spot. He also tried to use his might to disallow media and independent persons to record the filthy speech that he made. When found to be offensive, in defiance of the law he refuses to give his voice sample. Yet no adverse inference is drawn. How come? Are some persons above the law? Under sections 101.102 and 103 of the Evidence Act, the burden of proof shifts to Accused No 2, Varun Gandhi because he has not denied his voice on the tape/CD but states that another’s voice has been dubbed in its place. Despite this he is refusing to give his voice sample hence an adverse inference should have been drawn against him. Moreover when he gave his statement under section 313 as accused, he simply made a statement that in his view the CD was doctored. The Court did not question him on the motives behind his refusal to give the voice sample neither did the Court appreciate the evidence submitted by NDTV – an independent US laboratory report stating that while the CD contained different bits of recording, the recordings were genuine. Moreover the sections with the filthy utterances had been recorded in continuity with no breaks. The NDTV petition and report also shows that Varun Gandhi while making the speech was watching and monitoring to ensure that it was not being recorded. This makes his action completely well thought out and premeditated. The available FSL report in evidence states that C-1 Compact Disc which have two video films 9.27 minutes long and DVD Model DVM-60V-1 has a film of 57.47 minutes long which witness Tariq Nayyar and his associates had prepared. The Accused Nos 2 BJP MP Varun Gandhi had t o match his voice samples with these. The cassette made by prosecution witness 2, Shariq is not of the location where the inflammatory hate speech was made by Accused Nos 2. Assistant Director CFSL SK Jain was not produced as witness by the prosecution and with a view to benefit the accused this evidence was deliberately ignored. This too defeats the purpose of fair trial and the administration of justice. Shri SK Jain was not a mere formal witness because he was an important prosecution witness who had in his statement under section 161 CRPC admitted that he had observed a similarity between all three cassettes. In this connection, in the CFSL report prepared by him he has written that there is a continuity of recordings in these cassettes which suggests that these are original. However by not producing him and clarifying the position on the recordings in the three CDs, deliberate confusion on the CDs has been created by the prosecution and left unclarified. Witness Tariq Nayyar too was not properly examined on this point. In reality the speeches of Accused Nos 2 was recorded in part, with gaps in time, at the same spot was recorded. Because during the rally of Varun Gandhi there was a ban/restriction on recording his speeches, therefore in hiding, journalists were recording this which was unlikely or improbable in continuity with one continuous shot. Even Shri Jain has stated that these recordings cannot be falsified, moreover voices can be matched only if the voice sample of Accused Nos 2 BJP MP Varun Gandhi is made available. In any case, the objectionable words and phrases (inflammatory and hate speech) used are in continuation in which there is no sequence defect. It has been argued by us that the Court has erred grievously by ignoring this. The Journal Tehelka, in its issue published May 31, 2013 states that the relevant CDS with inflammatory speech were sent for verification by NDTV to an independent forensic lab, Digital Evidence Legal Video Services. The report of this agency states that the CDs are genuine and no tampering has been done. This report by NDTV is annexed to this application before this Court. Meanwhile as the intricacies of this particular case are battled by us in Court, the fundamental phenomenon of hate speech, detrimental to both Constitutional governance and democracy has been left untouched in the screeching television debates that attempt to flood national consciousness. We have made laws to control and punish this corrosive phenomenon. When these laws are broken with impunity should it not be a matter of conscience for a gutsy fourth estate to examine the impunity granted to those who use hate speech and get away with it…blithely.. Ends
Posted on: Thu, 01 Aug 2013 17:56:08 +0000
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