Commentary/Dilip D'Souza
Conundrums, contortions, convolutions
Bal Thackeray and the Law
Here's the conundrum of the next few weeks. Let's say the Supreme Court
dismisses Shiv Sena chief Bal Thackeray's appeal against the
sentence
passed on him by the Nagpur bench of the Bombay high court. If that
happens, how will the state government react? How will Chief Minister
Manohar Joshi, whose hold on office -- whose very political existence, in
fact -- depends utterly on the whims of Thackeray, be able to put his own
remote control in jail? I suspect the answer to that question will be one
of the more interesting episodes of the year. Wait for it.
You have this opportunity for delicious anticipation because of something
Thackeray said some months ago. He told the world that he knew about a
judge who had asked for a bribe of Rs 3.5 million for making a certain
judgment. Thackeray didn't think he needed to identify the judge, but
repeated the story a few days later. That led two Nagpur residents to file
a petition alleging that Thackeray was bringing the judiciary into
disrepute and so was guilty of contempt of the courts. The judges agreed.
They have sentenced him to two jail terms of a week each, to run
concurrently.
Thackeray has still not identified his bribe-taking judge.
Thackeray's lawyer used a clever defence while arguing the case. The
Contempt of Court Act, he pointed out, says that the courts 'may' take
action if someone is found guilty of contempt. That is, he argued, the use
of the word 'may' means that the courts were not required to take action.
He urged the judges not to punish Thackeray for this reason. Now the lawyer
admitted that Thackeray said what he did. So, in effect, he was saying to
the judges: 'It's true my client said this, it's true that he committed
contempt, but you don't have to punish him, so don't.'
There's foolproof courtroom logic for you. Unfortunately, it failed.
Meanwhile, back at home in Bombay, there's more delicious anticipation in
store, besides more curious logic on display, in another case involving Bal
Thackeray. This one has its roots in incidents now over five years old.
In October of 1991, Pakistan's cricket team was to play a match in Bombay.
Thackeray threatened to set Wankhede stadium, where they were scheduled to
play, 'on fire' if the match was allowed to take place. Perhaps he then had
second thoughts about taking on such a huge task, for he pre-empted the
very need for it by dispatching a commando team of brave Shiv Sena men to
the stadium. They infiltrated the stadium's defences, dug holes in the
pitch, poured oil into the holes and ran away. The match was cancelled.
The newspaper Mahanagar criticised Thackeray for this entire episode.
Promptly, more Shiv Sena men -- still thinking of themselves as commandos,
no doubt -- infiltrated Mahanagar's defences, vandalised its office and
beat up its staff. The police filed a case about this: the one now being
heard. If you think it is amazing that it took five years to come before a
judge, what's more amazing is that it has survived at all. Cases involving
Bal Thackeray that the state files invariably have one or more of three
exemplary features: they are either weak, not pursued, or withdrawn
altogether.
Still, this one made it before K H Holambe-Patil, additional chief
metropolitan magistrate. He has issued repeated summons to Thackeray to
appear, none of which Thackeray has paid any attention to. One was for
January 6 this year. Thackeray told the judge he could not attend that day
as it was the 'death anniversary of his wife.' He was granted the exemption
that time, but it was left to the judge to gently point out that January 6
'was not the late Ms Thackeray's death anniversary but her birth
anniversary.'
The judge issued a new summons for Thackeray to appear on February 4. This
one elicited just as much respect from Thackeray as the others. He was not
keeping good health and had 'chest pain', his lawyer said. His doctor had
advised him not to appear in court to 'avoid stress.' So he could not show
up. The case has been adjourned to February 18 and the judge has asked
Thackeray to appear 'as soon as he recovers.'
Thackeray recovered very quickly indeed. A court appearance was too
stressful to undertake, but on February 5, he left for Nashik, Pune and
Nagpur to campaign for the municipal elections that are only two weeks
away. Before leaving, he told his paper, Saamna, this: "I am quite okay."
Wait, I'm not finished telling you about this case yet. The government,
perhaps startled that it actually has seen the light of day, has instructed
the public prosecutor to withdraw the case. Home Minister Gopinath Munde
explained: 'The Government has taken a decision to withdraw cases which
were filed in course of public agitations or movements and where the
evidence is not adequate [for securing convictions].' What's more, the
previous government 'appears to have bungled up in collecting evidence, if
any, in connection with the attack on Mahanagar.'
Note, in passing, the eminent minister's deft use of the words 'if any.'
Without them, he would have implied that there actually was evidence of the
attack. Naturally, Munde cannot afford such an implication, for that would
mean there is substance in the case against Thackeray. Now he not only
blames the previous government -- always a worthwhile political exercise --
but indicates that there is no evidence in the case at all. Which, I
imagine, is a contention a few seriously injured Mahanagar employees
might disagree with.
Be that as it may, and unfortunately, Justice Holambe-Patil has refused to
let the government withdraw the case.
As you see, court cases involving Bal Thackeray are fertile ground for all
kinds of convolutions, contortions and conundrums. So before I collapse in
exhaustion relating them all, let me remind you of just one more.
On December 9, 1992, at the height of the riots in Bombay, Thackeray wrote
this in an editorial in Saamna: '250 million Muslims in India loyal to
Pakistan will stage an armed uprising. They form one of Paistan's seven
atomic bombs.' This and eight other editorials formed the basis of a
petition that two citizens filed after the riots. They urged the Court to
direct the government to prosecute Thackeray under Sections 153A and 153B of
the Indian Penal Code.
Here's what Section 153B says: '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 ... shall be punished with imprisonment to three
years or fine or both.' That is, you cannot say people are not loyal to the
country because they follow a certain religion.
You can decide if Thackeray's editorial violates Section 153B. Remember
that there are only about 120 million Muslims in India.
In any case, many convolutions and contortions later, the petition was
heard by Justices M L Dudhat and G R Majithia of the Bombay high court in
September 1994. They dismissed it because, they observed, much time had
passed and it was unwise to 'rake up' old issues all over again. Also, they
found none of the editorials worthy of action 'when read in full.'
Referring to the one I've cited above, the honourable judges decided that
the 250 million figure 'appears to be a typographical mistake', despite
Thackeray's use of the same figure in at least one of the other editorials.
One of the country's foremost legal and constitutional scholars, H M
Seervai, had this to say in response to the dismissal of the petition:
'...The 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.'
Seervai also said: '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.'
That's Gopinath Munde's 'previous government' that Seervai thought was
determined not to prosecute Thackeray. Which brings us right back to the
Nagpur judgment. How will the current government, that exists purely on
Thackeray's say-so, be able to imprison him?
Conundrums, conundrums. If you're not tired of them yet, try this
intriguing little fallout of the contempt judgement. One of the petitioners
in the case is a 70-year-old Nagpur businessman,
Harish Pimpalkhute. As
soon as the court passed its sentence, the government gave Pimpalkhute
security. Several policemen now surround him round the clock.
That is, the government is protecting Pimpalkhute from the actions of the
man who runs the government. Now if that isn't calculated to make
Pimpalkhute feel completely secure, I don't know what is.
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