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Years That Have Passed

Watching the Thackeray imbroglio unfold from half the world away, I waited for somebody to comment on what, to me, seemed most striking about it all. I waited in vain. Now back here in Mumbai, watching the imbroglio meander off the news vistas, I know the wait is futile. And it surprises me.

I mean, what's the defence the great champion of Hindutva came up with? Did the brave man, never afraid to speak his mind, stand by what he wrote in that editorial nearly eight years ago? Did the tiger of Bandra East thump his chest and say: "I'm proud of what I wrote then, for it was the truth and I am willing to defend it in court?" Did he make a case for freedom of speech, or at least try to prove that what he wrote was no crime at all?

Nothing of the sort. What we got instead was a mere mew. Balasaheb's sole argument against the proceedings he faced was that he should be left alone because the editorial was written several years ago. 'It is now almost seven years,' he complained, if inaccurately, to V Shankar Aiyar of India Today.

A 'mothballed editorial,' his own party MP Pritish Nandy, right on cue, called it here. And thus the case was, as Ram Jethmalani fumed and Magistrate B P Kamble repeated as he threw it out, 'time-barred.'

This, apparently, is what we have come to call being unafraid to speak the truth. This namby-pamby appeal to the wishy-washy passing of time.

Of course, Bhujbal cooked this whole thing up to spite Thackeray. Bhujbal has never given us much of a reason to respect him and this poorly-disguised vendetta wasn't one either. Certainly time goes by and that is a factor in deciding whether cases can be sustained. Undoubtedly we must ask questions about why Sharad Pawar's Congress government in Maharashtra did not prosecute Thackeray while in power between the riots and March 1995. And don't expect credit for guessing why Thackeray's own Sena-BJP government did not prosecute Thackeray while it was in power between 1995 and 1999.

But leave all that aside for just one moment to ask: Did Thackeray indeed commit a crime, violate the law, by what he wrote during the 1992-'93 riots? If he did not, if he believes he did not, why have we not once heard him say, 'I am innocent, I did not commit a crime'? Why have none of his cheerleaders who so applaud his forthrightness ever said so?

When was the last time you heard an innocent man accused of a crime, whimper: 'It's been eight years, so please don't try me'?

While you give that some thought, Iwill spend the rest of this column and the next examining the two prominent features of all this: The violation of the law and the passing of time. You will have to forgive me for quoting from previous columns; I have written about precisely these two before and it seems pointless to write the same stuff differently today.

First, in this column, the question of violating the law. The law in question is encoded in Sections 153A and B of the Indian Penal Code. Section 153A reads: 'Whoever, by words either spoken or written, promotes or attempts to promote on grounds of religion disharmony, enmity, hatred and ill-will between different religions ... shall be punished with imprisonment to three years or fine or both.'

In short, Section 153A defines as unlawful statements that promote enmity between religions.

Section 153B reads: 'Whoever by words either spoken or written makes any imputation that any class of people cannot, by reason of their being members of any religious group, bear true faith and allegiance to the Constitution of India; or asserts or publishes that any class of people shall by reason of their being members of any religious group be denied or deprived of their rights as citizens of India ... shall be punished with imprisonment to three years or fine or both.'

That is, Section 153B says it is unlawful to pronounce that those who profess a given religion are therefore traitors.

Keeping those sections in mind, consider this selection of statements from Thackeray's editorials in his party newspaper Saamna during the December 1992/January 1993 riots in Mumbai:

December 5, 1992: 'Which is this minority community? The Muslim traitors who partitioned the country and haven't allowed us to breathe ever since.'

December 8, 1992: 'Muslims should draw a lesson from the demolition of the Babri Masjid, otherwise they will meet the same fate as Babri Masjid. Muslims who criticise the demolition are without religion, without a nation.'

December 9, 1992: 'Pakistan need not cross the borders and attack India. 250 million Muslims in India will stage an armed insurrection. They form one of Pakistan's seven atomic bombs.'

January 1, 1993: 'Muslims, Sikhs, Christians and people of other faiths ... indulge in anti-national activities. Such activities should be completely defeated. Muslims have been able to hold Hindus to ransom.'

January 8, 1993: 'Muslims of Bhendi Bazar, Null Bazar, Dongri and Pydhonie, the areas we call Mini Pakistan ... must be shot on the spot.'

I have no idea if it was any of these, or some other choicer bit of prose, that was the reason for the case in which Thackeray went to court some days ago. But whether it was or not, you decide: Do these excerpts violate either or both of Sections 153A and B?

For example, was Section 153B, which prohibits labelling all members of a religion traitorous, violated when Thackeray wrote that India's Muslims will collectively 'stage an armed insurrection' because they 'form one of Pakistan's seven atomic bombs'? Was it violated when he asked 'Which is this minority community?' and answered 'The Muslim traitors who partitioned this country'?

Whatever you decide, here is a selection of what some of India's most prominent legal minds had to say -- in 1995 -- about whether Thackeray violated the law. They wrote in Communalism Combat (January 1995 issue) response to the court's dismissal of a case citing those editorials I excerpted. I will tell you about that case in some detail in the next column.

Fali Nariman:

'[Sections 153A and 153B of the IPC] remain on our statute books to give assurance to the people of India that promoting enmity between different groups on grounds of religion will not be tolerated and will be visited with penal sanctions ... It is this assurance that was denied to the people of Maharashtra ... by the high court of Bombay.

'The message [conveyed by the judgment] clearly is that intemperate words against a particular community likely to cause disharmony will not only go unpunished, but will not even suffer a judicial rebuke. This is the single most sinister, most deplorable fall-out of the judgment... That all this should not have been seen fit to be corrected by the Supreme Court of India when its jurisdiction was invoked prompts only a plaintive prayer: 'Where then, O Lord, shall we turn for the redressal of palpable wrongs?'

The late H M Seervai:

'In my opinion, the affidavit [filed by the state government in the case] clearly established that the government knew that the nine passages complained of [in the petition] violated the provisions of Section 153A, but was determined not to prosecute Shri Thackeray.

'A clearer violation of Sections 153A and 153B is difficult to imagine.

'[T]he summary dismissal [of the case by the Supreme Court] can only be described as amazing and subversive of law ... [It] has done great injury to the fabric of our laws.'

Attorney General Soli Sorabjee:

'It is extremely unfortunate that the judiciary has not intervened in this case where the law has been openly flouted and communal hatred spread by Bal Thackeray through his mouthpiece, Saamna. History teaches us that unless these pernicious tendencies are scotched they grow to become unmanageable monsters later on. The argument that a prosecution of persons responsible for spewing hatred would rake up past events is totally misconceived because there has been no rethinking or regret by the authors of the writings and every likelihood of such actions being repeated.'

Nani Palkhivala:

'I am deeply distressed that ... the court did not give priority of priorities to the cause of amity and national solidarity. ... The high court was in error in not allowing the petition to compel the government to sanction a criminal prosecution under Section 153A and Section 153B of the IPC, because there is clearly a prima facie case that the Sections have been violated.

'The basic principle of democracy is that no one is above the law. If any government flouts this principle for reasons of political expediency, it is doing irreparable damage to the democratic fabric of the national polity. The Maharashtra government did do that irreparable damage.'

Of course, Thackeray fans would rather ignore all this. As one of them claimed here the other day, the stuff Thackeray writes 'may be emotional, it may be opinionated, but it ain't lies, babe.' So, you may well ask, what's Thackeray's forthright truth got to do with the law?

Truth, right. So think about this: In what sense is it 'true' to claim that India's Muslims collectively 'form one of Pakistan's seven atomic bombs'?

As before, you decide. Then ask why Thackeray and pals carry on about the years that have passed.

Dilip D'Souza