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Thackeray is above law

Mumbai: Is the state government serious about prosecuting Shiv Sena chief Bal Thackeray for inciting communal disharmony in his speech at the party's Duassehra rally? The legal community's response to this question is a firm "No".

Although a legal case has been registered against Thackeray for his inflammatory speech calling on Hindus to form suicide squads against Muslims, it is unlikely that he will be prosecuted. Fear of his capacity for unleashing violence and the colour of his brand of terrorism will in all likelihood protect the man from being jailed.

Lawyers pointed out that Thackeray's provocative remarks at the October 15 rally attract Section 153 (A) of the Indian Penal Code, thus making the offence a cognisable and non-bailable one. "The evidence in the form of audio-recordings of the speech is in their hands and is enough to make a prima facie," said criminal lawyer Majeed Memon. "The government's sanction to prosecute Thackeray can be granted even after his arrest," he added. Memon, however, dismissed the government's argument for delaying Thackeray's arrest as "lack of courage".

Manoj Mitta points out in the Indian Express that, unlike its predecessor, the Terrorism and Disruptive Activities (Prevention) Act, under which a person, even if he had not committed a terrorist act, could be arrested if he wrote an inflammatory article or delivered an incendiary speech, POTA does not include prosecution for disruptive activity. 

Mumbai Samajwadi president Abu Asim Azmi said if a Dalit or a Muslim leader had done what Thackeray did and instigated riots, the police would have arrested him, and in some cases, might have even fired upon him. "No government, even a Congress government had been ever able to take action against Thackeray during the 1992-93 riots. Double standards exist in our system," he said. "If Laloo Prasad Yadav can be arrested in his own state, any other politician can be picked up, if the law wants. Why special treatment in the case of Thackeray? Was I not arrested earlier for making an inflammatory speech? The government seems to be speaking in two voices". 

This was not the first time that Thackeray was being hauled up for making provocative statements. A similar case regarding his writings in the Sena mouthpiece, Saamna, (See Box) during the 1992-93 riots is pending before the Mumbai high court.

It was Thackeray who incited the December 1992-January 1993 Hindu-Muslim riots that rocked Mumbai. He wrote a series of inflammatory editorials in the Saamna, urging Shiv Sainiks to declare war against India's Muslims in defence of Hinduism. 

While riots exploded across the country, it was in Mumbai that they were the worst. Over 800 were killed in that city alone. In its final report, Justice Srikrishna Commission that probed the riots found ample evidence of the direct involvement of Thackeray and the Sena. However, the Shiv Sena-BJP coalition government in Maharashtra at that time dismissed the report as "anti-Hindu" and refused to place it before the state assembly. 

In 2000, a Congress-led government in Maharashtra issued permission to the police to arrest Thackeray for inciting riots. The Sena struck swiftly. Within hours of their leader's arrest, Shiv Sainiks vandalized the state assembly and spread terror across Mumbai, damaging buses and trains, and burning shops and houses. The Court without holding any hearings, released Thackeray on technical grounds. 

Moreover, there is the government's fear of his capacity to bring Mumbai to its knees. When the police lodged a case against Thackeray recently, he and his supplicants reacted in the customary manner. Warning the government of "serious consequences" if Thackeray was arrested, Narayan Rane, a senior Sena leader and former chief minister of Maharashtra, said, "Let's see what they can do. The last time they tried to arrest Balasaheb, the whole city was quaking." And Sena MP Sanjay Nirupam said the party would fight the case legally, and "if necessary ... come out on the streets". 

Law-enforcing agencies and the judicial system have repeatedly held back from cracking down on Thackeray fearing threat held out by Sena activists that "Mumbai will burn if Thackeray is jailed". 

The earlier case, filed by the Dadar police station, came up before the Bhoiwada Metropolitan Court in July 2000 after the Democratic Front government accorded sanction to prosecute Mr Thackeray. The magistrate, however, dismissed the case on the ground that the sanction had been given after the stipulated three-year time limit prescribed under the Act.

The state government challenged the magistrate's order by filing a petition in the Bombay high court. The high court observed that the order of the metropolitan court was improper, but refused to stay the decision. The petition has still not come up for final hearing.

Minister of state for home Kripashankar Singh told MG that the government would soon be asking the Chief Justice to expedite the matter. "We were unable to do anything as the earlier Chief Justice BP Singh got elevated to the Supreme Court and after that Chief Justice CK Thakker was made the acting governor. Now that Justice Thakker has resumed duty, we will take up the matter," he said.

It would have been much easier for the congress government in the 70s to take action against Thackeray. Instead, the Congress chose to seek his support on several occasions.

¯ M H Lakdawala in Mumbai

EDITORIALS IN SAAMNA 
(1) HEADING OF THE JANUARY 11 EDIT: IS BHADAKELI CHITA (BURNING PYRE). 
It refers to the burning pyres of "young Hindu martyrs" killed by the police. "Four-year-olds, mothers, sisters and old people are shuddering and breathing their last in pools of blood. The yagna pit is burning … Hindus, open your eyes… Your pyres are burning… Pawar, how can you stop the innumerable particles of dust rising from their burning pyres? These particles of dust will make you shudder."
(2) JANUARY 14 EDIT TITLED: TYANCHYA SHELYA JHALA (THEY BECAME SHEEP) 
REFERS TO THE MUSLIMS' DEFEAT IN THE RIOTS 
"Fanatic traitors started the riots by bringing their religion to the street with the full encouragement of the government. We only gave them a fitting reply. Why die without fighting? That too falling to the bullets of the fanatic A A Khan and Gafoor? These riots have opened everyone's eyes. 
Everyone has been shown their place. The majority Hindus have regained their self-confidence. Mumbai is quiet. Now fanatics should not cross out paths."
(3)JANUARY 23 EDIT /TITLED HINDU TUTUKA MELWAVA, DESH - DHARAM VAADVAAVA (LET ALL HINDU FORCES UNITE; STRENGHTEN THE COUNTRY AND RELIGION), IS A CELEBRATION OF SAAMNA'S AND THE SENA'S ROLE IN THE RIOTS.
"In this yudh, we and our Saamna fought like men. We aroused consciousness in confused minds, revived wilting wrists. Shiv Sena, Hinduvta and Saamna - this is a triveni sangam. The Hindus, who awoke on December 6, should not become embers again. We should burn and in this burning conflagration, let the traitors be reduced to ashes. I am proud of having infused the germ of nationalism in this generation. Who else would have done it? Everyone took out peace marches. But who confronted the antinationals and saved the Hindus? Only the Shiv Sainiks. Ask the residents of the colonies which were saved.
(4) JANUARY 23 EDIT 
Thackrey refers to the police requesting him to time down his writing and retorts, "why should we?" he warns that if he was arrested under pressure from Delhi, the entire country would be engulfed in a Dharamyudh (holy war).

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