NEWSLINKS
US EDITION
COLUMNISTS
DIARY
SPECIALS
INTERVIEWS
CAPITAL BUZZ
REDIFF POLL
DEAR REDIFF
THE STATES
YEH HAI INDIA!
ELECTION 99
ELECTIONS
ARCHIVES

Search Rediff

The Story of a Petition

PART I: Years That Have Passed

Ah yes, the passing of time. The years that have passed since Thackeray's writing during the 1992-1993 riots in Mumbai; writing that was the basis for the case that a Mumbai magistrate dismissed last fortnight, observing that it was 'time-barred.'

Yes, that time. So why has so much time gone by? You might find an answer of sorts in this story of a petition.

In April 1993, about two or three months after the riots in the city, two Mumbai citizens filed a petition in the Bombay high court. It cited nine different editorials written by Thackeray in Saamna during the riots: Those I excerpted in my previous column, along with others that appeared on December 2 and 15, 1992, and on January 5 and 9, 1993. The editorials were specifically chosen from the time of the riots, to show the inflammatory effect they had had on the riots. Contending that the editorials violated Sections 153A and B of the IPC, the petition urged the court to direct the government of Maharashtra to prosecute Thackeray.

It came up for admission at the end of April. When it did, the police filed an affidavit claiming that since they had already initiated action against Thackeray, the petition should be dismissed.

And what was this action that the police had initiated?

They had filed four cases under Sections 153A and 153B, based on four articles -- news reports, not editorials -- in Saamna, dated January 10, 11, 12 and 21. Note that these dates are towards the end of the two phases of riots, not during the riots. The articles were tirades against the then additional commissioner of police, A A Khan, accusing him of killing Hindus. The police claimed in their affidavit that while these articles were deserving of action, the editorials cited in the petition were not.

Having filed these cases, the police had applied to the government of Maharashtra for sanction to chargesheet Thackeray. This application had been made on January 22, 1993 -- just 11 days after the last article the police found offensive. At the end of April -- three months later -- there was no word from the government about the sanction.

In June, after the court's summer recess, Justices V A Mohta and Ajit Shah admitted the petition. They gave the police six weeks to decide whether they intended to take action based on the nine editorials.

As it turned out, it was late August when the police finally filed an affidavit about their intentions regarding the editorials. Once more, they urged that the petition be dismissed. They repeated that cases had been filed against Thackeray and that 'the law would take its own course.' They repeated that the editorials cited in the petition had been examined and not found 'actionable when examined in totality.' However, said the police affidavit, 'all these writings were referred to the Press Council of India ... for such action as may be deemed fit.' In all these cases it was thought that the Press Council of India was the proper authority to take action if found necessary.

In other words, the police was ostensibly willing to take action for articles in Saamna attacking a police officer. But for the editorials cited in this petition, it preferred the Press Council to take action: Which, if it happened at all, would amount to a mild slap on Thackeray's wrist.

The new chief justice, Sujata Manohar, gave the petitioners a date for the final hearing: March 7, 1994, before Justices Kantharia and Sahay -- nearly a year after they filed their petition and nine months after it was admitted.

When the petition came up before the justices on March 7, the counsels for the Shiv Sena and the government asked for an adjournment. Their argument was that they had 'not expected the matter to actually come up that day.' The hearing was put on the board for March 16. Given the number of cases in queue that day, it was March 18 before this one came up. At that point, the justices said they had a lot of other 'pressing matters' and did not have the time to take up this case. They suggested that the petitioners approach the chief justice again to have their case assigned to another bench.

By an order dated March 30, 1994, the chief justice directed that the petition be heard before Justices Mohta and Bahuguna on June 6, after the court vacation. Another two-month delay.

On June 6, the Shiv Sena counsel, V Bhandare, asked for an adjournment, saying only that he needed 'more time.' Judges Mohta and Bahuguna agreed to this. The hearing was adjourned for another six weeks, till July 18.

On July 18, Mr Bhandare did not appear in court. He told the court through a representative that he was in hospital, suffering from a 'detached retina,' and needed another six week adjournment. In the two weeks he claimed he had already been in hospital, Mr Bhandare had not cared to make any alternative arrangements for the hearing of the case. He insisted that only he could argue the Shiv Sena's case.

The judges postponed the hearing once more, this time to August 9. Many lengthy cases were on board before this one and a week passed before it came up. At that point, the petitioners' counsel had himself to ask for an adjournment since he had some other cases to argue before the Supreme Court in New Delhi.

But in the Bombay high court, the benches are changed at the end of August. Thus the petition had to be assigned to still another bench. This could only be done after those benches were announced and a further date for the hearing could be fixed only after that.

So it was that the petition was assigned to Justices M L Dudhat and G R Majithia and the hearing began on September 21, 1994. It was well over a year since it had been admitted. So much for expeditious hearings.

Before the hearing began, Justice Dudhat asked the petitioners' counsel if he really wanted to press the matter. It had been nearly two years since the riots, he said, and much water had passed under the bridge. Did the petitioners really want to 'rake up' all these old issues again? Justice Dudhat's opening observation would be remembered a few days later.

The petitioners pointed out that the inflammatory nature of the editorials, their violations of the IPC, were evident to anyone who read them. For example, take again the statement that '250 million Muslims in India will stage an armed insurrection. They form one of Pakistan's seven atomic bombs.'

You need no deep insight to conclude that this accuses all Muslims in India of being loyal to Pakistan (and therefore traitors to India), even if the number used is twice the actual population of Muslims in India. And when the IPC's Section 153B tells us that it is illegal to pronounce 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,' it is hard to imagine anyone concluding that this statement from Saamna is not a violation of Section 153B.

Petitioners' counsel also cited the Babubhai Patel case of 1980, in which the Supreme Court held that saying Muslims indulge in riots and violence, which Babubhai Patel had done, violated Section 153A. It also laid down an important general principle while deciding that case: That a person could not promote such enmities under the guise of writing a political thesis or a historical analysis.

As for the state government and the police, they repeated they were in fact taking action against Thackeray for other writings (the A A Khan articles, among others), and so could not be accused of abdicating their duties. Not only that, they pointed out that in his editorials, Thackeray was only referring to those Muslims who were anti-nationals and traitors. Besides, they argued that the editorials had to be read in full, and if that was done they did not violate the law.

The Shiv Sena counsel's argument was brief, hastened by the extent to which his case had been argued by the government and police counsels before him. He stressed that Thackeray had referred everywhere only to 'anti-national Muslims.'

Even if it were true that Thackeray referred only to 'anti-national Muslims' (and it was not true, in particular in the sentence above about 250 million Muslims), repeatedly referring to "anti-national Muslims" could only create the impression among Saamna's readers that all Muslims were traitors. The petitioners' counsel pointed this out.

The judges dismissed this argument, and finally the petition itself. In their judgement, they went over each editorial and decided it did not violate the law when read in full. In the instance above about the 250 million Muslims who form one of Pakistan's seven atomic bombs, the honourable judges decided that the figure 'appears to be a typographical mistake,' even though at least one of the other cited editorials also used the same figure. To this particular explanation, H M Seervai reacted thus:

'[T]he interpretation given to [the 250 million figure] is absurd and perverse. The statement that [250 million] Muslims was a typographical error is based on no evidence ... A clearer violation of Sections 153A and 153B is difficult to imagine.'

Justices Dudhat and Majithia dealt with the other editorials in similar ways. Finally, they observed once more that much time had passed and it was unwise to 'rake up' old issues all over again. The implications of this are interesting, as several outraged letters in the press pointed out. By this reasoning, there is no need to punish any crime at all. We should simply let a year or two pass and then refuse to take action, because old issues should not be 'raked up.'

But much more important, why had so much time passed? Precisely because of the numerous adjournments and delays the petition had been subjected to. Adjournments requested by the Shiv Sena or the government and granted by the court repeatedly delayed the hearing of the case. Had there not been all these delays, it would have been heard and dealt with at least a year previously. It was certainly not the fault of the petitioners that time had gone by.

The petitioners took the only step available to them at this point: They tried to appeal the high court decision in the Supreme Court. Justices Punchi and Jayachandra Reddy heard a special leave petition for this on January 6, 1995. They swiftly dismissed it. The main thrust of their dismissal was that since the high court had declined to take action, it was not wise nor in the public interest for the Supreme Court to do so. They also observed that, as the police had argued during the hearing of the petition in Mumbai, cases had been filed against Thackeray for some other writings and therefore punitive action was indeed being taken. So there was no need for the Supreme Court to intervene.

The Shiv Sena-BJP government that was in power in Maharashtra for the next five years withdrew all those cases. Then chief minister Manohar Joshi explained this decision to the Srikrishna Commission: His government 'was of the view that continuation of prosecution ... would amount to reopening of wounds that had almost healed.' Joshi also explained that the dismissal of the very petition I have been telling you about made him decide to withdraw the cases.

So get this: One reason the high court dismissed this petition was that so much time had passed. But so much time had passed because the government and the Shiv Sena themselves repeatedly delayed the hearing. Another reason why the high court dismissed the petition was that the government cited other cases it was pursuing against Thackeray. But the government itself then withdrew those other cases, citing as justification the dismissal of the petition.

How's that for a fine Catch-22?

Five years further down the road, a man who badly wants to get Thackeray drags up one remnant case. Much learned comment suddenly appears about mothballing and the many years gone by. Learned and fine, but why have so many years gone by?

Yet again, you decide. Then you will know why Thackeray and pals carry on about the years that have passed.

Dilip D'Souza