"Disturbing Trend": Top Court Junks Plea Over Himanta Sarma's Miya Remark

The Supreme Court struck a displeased note Monday afternoon as it turned down petitions to file a police case, and order an inquiry by a Special Investigation Team, or SIT, against Assam Chief Minister Himanta Biswa Sarma over alleged hate speech incidents.

A bench led by Chief Justice Surya Kant, and including Justice Joymalya Bagchi and Justice Vipul Pancholi, directed the petitioners to first approach the Gauhati High Court and lamented the growing trend of the top court becoming the first stop to resolve disputes, particularly before an election.

In this instance, Assam will hold an Assembly election likely in March or April.

The incidents in question refer to a video, released by the ruling Bharatiya Janata Party's Assam unit, that showed him shooting at a photograph of Muslims and, before that, comments about Miyas, i.e., Bengali-speaking Muslims whom the BJP has called "illegal infiltrators".

On these issues – the video and the comments – the court urged political parties to restrain themselves and "act within the boundaries of constitutional morality". "But this (approaching of the Supreme Court directly) is becoming a trend just before elections," the petitioners were told.

The petitioners said they had written to the Chief Justice of the Gauhati High Court but no suo motu proceeding had been initiated. But the Supreme Court pointed out that writing a letter was different to formally filing a plea and, therefore, once again, directed the petitioners to move the High Court.

"Don't undermine the validity of our high courts. You are demoralising the (Gauhati) High Court," Chief Justice Surya Kant said.

Senior Advocate Abhishek Singhvi responded that the Supreme Court could use its discretionary powers to take up this matter, and highlighted the demand for a special investigative team, or SIT, to probe this matter.

To the Chief Justice's "demoralising the High Court" rebuke, Singhvi said the Assam Chief Minister is "demoralising the Constitution and entire community".

"If this is not heard then the rights of people will be diminished. This is the sitting Chief Minister who is asking for land not to be given… we are seeking a police case," he said, arguing against the filing of the FIR, or First Information Report, in Assam. "Send me to another High Court then."

"This (case) affects fundamental rights under Article 14 (right to equality), 15 (prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth), and 21 (right to life and personal liberty)," Singhvi said, "If this case cannot come here, then this court has to determine contour of Article 32 (right to move the Supreme Court directly for enforcement of fundamental rights). We are seeking a SIT… but what can any SIT do in Assam against boss of Assam."

Singhvi claimed there were 17 other "weaker" instances in which the top court had allowed a different High Court to be approached. "He (Chief Minister Sarma) is a habitual and repeat offender… this would be the ideal case for the Supreme Court to exercise its Article 32 power."

But the top court was unmoved.

"The Supreme Court can't be a convenience forum (for) shopping… just because all senior lawyers are based here. There are good lawyers there as well. The entire effort is to undermine the authority of the High Courts and this is a calculated effort," the Chief Justice said.

"Sending you to another High Court is a serious aspersion (on the Gauhati High Court) which I outrightly reject. I have to take care of judicial administration all across the country."

Earlier, the Jamiat Ulama-I-Hind, an organisation of Indian Muslims and Muslim scholars, had filed a Supreme Court plea against the Miya remarks by the Chief Minister.

The plea, moved by Jamiat chief Maulana Mahmood Madani, said the term is a derogatory reference to Muslims, and when such references are made by a person occupying a high constitutional office, it could not be dismissed as political rhetoric or free speech.

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