Edit: Command responsibility?

Veteran jurist Fali S Nariman has given voice to what many in civil society have worried about for long: the failure of the leading lights in the NDA government to put a stop to anti-Muslim hate speech. Nariman’s speech at the National Commission for Minorities(NCM) Annual Lecture made several other forceful points that the powers-that-be and the society at large must take note of. Nariman welcomed single-party rule but expressed apprehensions of a “majoritarian government”. He bemoaned the failure of the NCM in utilising its independent charter to protect the interests of minorities and in invoking the Indian Penal Code(IPC) and the Code of Criminal Procedure to clamp down on hate and derogatory speech targeting minorities. Noting that “every government... will do or not do whatever it considers expedient to advance its own political interests”, Nariman said this made it imperative for the NCM to initiate legal processes.

Nariman’s remarks — a reflection of the loss of confidence in governing institutions — have enormous implications. Far from the bogey of minority appeasement that the Hindu Right energetically propagates, a recent report compiled by the DGPs of Maharashtra, Tamil Nadu and Uttar Pradesh warns of a gaping trust deficit building up among Muslims against the police forces. The drift in law enforcement is evident from the fact that it takes the intervention of institutions like the Supreme Court, National Human Rights Commission and the Election Commission(EC) to register FIRs when the same actions could have been taken at the local level by the district administration. Over the years, the intensification of political controls have rendered district-level lead functionaries, like the district magistrate and superintendent of police, weaker in law enforcement. Rather than taking action when cognisable offences like hate speech that warrant booking under IPC Section 153A (promoting enmity between groups on grounds of religion) happen within their precincts, they now wait for high-level orders.
Nariman’s comments have come at a time when the Election Commission issued notice to Yogi Adityanath and then recommended an FIR be filed against him. Further, the UP police have filed a charge sheet against Amit Shah for alleged hate speeches made during the election campaign trail; the process was also initiated by an EC recommendation. That the Delhi-based Election Commission is getting involved in the law enforcement process, by recommending FIRs, a simple procedure which the district administration staffed by IAS and IPS officers can easily take a call on, points to indecisive and overtly centralised decision-making. It can be argued that the ideal course of action would have been for the district magistrate, who is already the district election officer, to lodge an FIR, rather than wait for interventions from above.
Most of the offences listed in the Indian Penal Code are cognisable offences which allow police functionaries to register FIRs and commence investigation without citizens’ complaints or directions from higher-level agencies like the Supreme Court, EC, NCM to lodge FIRs. With the civil administration and the criminal justice delivery system failing in law enforcement, an array of bureaucratic watchdog institutions have been created, or enjoy expanded powers, without making any perceptible difference to the situation. In effect, the principle of command responsibility has lost meaning. Every causal link in the issues discussed here — hate speech, undermining of official functionaries, and the ineffectiveness of watchdog institutions — points to bad politics.