Remarks about Sikhs: Allahabad High Court denies relief to Rahul Gandhi

The Allahabad High Court on Friday dismissed a petition filed by the Leader of Opposition Rahul Gandhi against a Varanasi court order on a plea relating to his remarks about religious freedom in India [Rahul Gandhi v State of UP and Another].

Gandhi was in the United States (US) last year when he had made the comment about religious freedom in context of Sikh community. Later, a complainant moved a magistrate seeking a first information report (FIR) against him.

However, the magistrate refused to entertain it without the requisite sanction from the Central government as that the statement was made in the US.

An additional district and sessions court in Varanasi on July 21 directed the magistrate to re-hear the plea, observing that sanction under Section 208 Bharatiya Nagarik Suraksha Sanhita (BNSS) is not required for registration of the FIR or investigation but for inquiry and trial. Gandhi then moved the High Court.

Justice Sameer Jain on September 3 had reserved the decision and asked Magistrate not to proceed further with the matter. Today, the Court in the final order rejected Gandhi's plea.

"Considering the provisions of section 208 BNSS the observation made by the lower revisional court cannot be said to be illegal. Even learned counsel for revisionist admitted that sanction is not required under section 208 BNSS for registration and investigation of the case," the Court said.

The Court rejected the submission that the revisional court itself could have given a finding whether any cognizable offence was made out or not.

"According to section 438 BNSS, this Court or court of sessions may check the correctness, legality or propriety of any finding recorded by the inferior court. Therefore, section 438 BNSS itself suggests that the revisional power of this Court and court of sessions is limited to check the correctness, legality and propriety of any finding recorded by the inferior court," it said.

Dismissing Gandhi's plea, the Court further said,

"Needless to say that if any application under section 173(4) BNSS is moved against an individual then before giving direction to register the case and to investigate the matter, it is necessary for the magistrate concerned to record the finding whether any cognizable offence against said individual is made out or not as for registration of the FIR and to investigate the matter, it is necessary that a cognizable offence is made out."

According to media reports, the Congress leader had made the comment at an event on September 9 while addressing a Sikh member in the audience.

"The fight is about whether he, as a Sikh, is going to be allowed to wear a turban in India; or whether, he, as a Sikh, is going to be allowed to wear a 'kada' in India; or he, as a Sikh, is going to be able to go to a gurdwara. That's what the fight is about, and not just for him, but for all religions... We are of the opinion that every state, tradition and language is as important as any other one," Gandhi is reported to have said.

Subsequently, the complaint against Gandhi was filed by one Nageshwar Mishra. He claimed that Gandhi had said there is an atmosphere of insecurity among Sikhs in India. Mishra alleged that the statement was provocative and intended to incite people to act in furtherance of Gandhi's political interests.

He also claimed that similar 'propaganda' was spread by Gandhi during a Rally organized at Ramlila Maidan in Delhi on December 14, 2019, which resulted in a massive protest at Shaheen Bagh in Delhi, which tragically ended in violence and anarchy.

After the magistrate had refused to entertain his plea, Mishra approached the Sessions Court which allowed his plea with direction for a fresh decision. The matter will now again proceed before the magistrate.

Senior Advocate Gopal Swaroop Chaturvedi and advocate Alok Ranjan Mishra appeared for Rahul Gandhi.

Advocates Manish Goyal and Roopak Chaubey appeared for the State. Advocate Satendra Kumar Tripathi represented the complainant.

[Read Judgment]