The narrative of mass violence targeted against India’s religious minorities has always been preceded and accompanied by a conscious and deliberate attempt to manipulate its chronological and historical narrative. This was visibly and sharply so with the post Babri Masjid demolition violence countrywide but especially the bouts that convulsed Bombay from the afternoon of Sunday, December 6, 1992. The build-up to these orchestrated convulsions had been systematic, from the speech and utterances by leaders of right wing supremacist organisations, well documented by Justice BN Srikrishna in the official judicial commission report into the violence that was submitted to government on February 16, 1998.[1]
Hence while the official report of Justice B.N.Srikrishna chronicles a sordid saga of build up to the violence by communal mobilisations especially hate speech and hate writing, largely by majority supremacist groups and political parties – with some minority groups also indulging in counter mobilisations – the action taken report of the government that rode to power on the back of the Bombay bloodshed (the Shiv Sena-BJP combine) has, in its Action taken Report tried to deliberately twist or reverse the narrative.
Within hours of the demolition of the Babri Masjis at Faizabad-Ayodhya on December 6, 1992 – an image we saw only on BBC and Doordarshan – victory processions and temple bell ringing (ghantanaad ) ceremonies by the Shiv-Sena-Bharatiya Janata Party (BJP) combine in Dharavi, Pydhonie, Kalbadevi on Sunday afternoon and evening itself proved enough humiliation and provocation to a minority, alienated by the failure of the Indian state to protect a 400 year-old Mosque. Some Muslim organisations also organised protests and also indulged in provocative speech making. The motivated campaign for the construction of the Ram temple at Ayodhya had never been just about the demolition of a place of worship, though that criminal act was bad enough; it had been successfully and cleverly shaped to unleash a hitherto cloaked hatred of the “Muslim other”; now blamed and victimised for a litany of historical wrongs, who, in a medieval and macabre dance of revenge, was being made to pay. The agent provocateurs had then and now been groups and political parties mobilising in the name of Hindusim while relying on the fear and insecurity of the majority to build up a false narrative of crime and its fallout, action and reaction, violence and retaliation.[2]
The next morning angry and defiant protesters broke, destroyed and burnt buses and other symbols of authority as a trigger happy police, especially in Mohemadali Road and around, shot to kill. Journalists and photographers were attacked. Casualties of over 220 were reported in the first 72 hours and by December 10, 1992 when Muslim bastis near Macchimarnagar in Mahim were set ablaze, Bombay well and truly burned. In some sections of the city like Nirmalnagar, Deonar, Nagpada and Byculla, acts of aggression by the Muslims were also clearly visible.
In brazen attempts to twist facts, the BJP and SS kept trying to blame “illegal Bangladeshi immigrants for the outbreak of the violence. An uneasy calm over the last two weeks of December 1992 was but the proverbial calm before a storm, well orchestrated and planned. The BJP-SS official announcement of a politically motivated Mahaarti programme in the third week of December, strangely permitted by the police and government, saw the stage being set for provocations and attacks on Muslim life and property across the length and breadth of the city. Fleeing Muslims were trapped and burnt alive in a Maruti at Antop Hill days before the notorious Radha Bai Chawl incident (January 8,1993) which however became the trigger for Bal Thackeray and his men to unleash unspeakable horrors on different neighbourhoods, aided by a “friendly” police and a compliant Congress-NCP led administration. Stabbings of innocent Hindus by criminal elements belonging to the underworld and a Mathadi worker also in the last week of December 1992 and early January 1993 [3]kept the communal cauldron boiling. Despite these facts, to date, proponents of outfits that thrive on a manipulation of facts and through these, the narrative of history continue to speak of the Bombay communal violence as a response to the bomb blasts instead of vice versa.
Betrayal by the State
Twenty years down, despite a fairly vigilant and tenacious survivors and citizens campaign for implementation of the Justice BN Srikrishna Commission report which in effect means punishment of the guilty, the state, the Maharashtra government has been stark in its betrayal. Be it in the official affidavits and rejoinders filed in the Supreme Court, or the assurances given at various points of the campaign, the Congress-NCP government that made a specific promise to ensure justice for 992-1993 when it campaigned (and won) for the state elections in 1999, the government has betrayed its promise.
In year 2000, survivors and citizens called the state’s bluff through an emotive Public Hearing of survivors at the KC College, Mumbai [4] and again, in 2007, when a vigorous campaign Justice for All was launched – this after the 1993 blasts saw convictions but those marauders responsible for 1992-1993 went unpunished – and newspapers played the lead, the specific charge of discriminatory justice was made. Unfortunately, the state has done little or nothing to refute this charge. In 2007, before and after, each time demands for justice grew to a crescendo, the Shiv Sena-BJP shrieked in protest, veiled threats of violence being always thrown in. And in a cynical throwback to a government that actually allowed the violence on its watch in 1992-93, the state of Maharashtra succumbed.
Mob Terror and Bomb Terror: The State Discriminates
While the state set up a designated court under the Terrorist and Disruptive Activities (prevention) act (TADA) court to try the cases of the serial blasts of March 12, 1993, which resulted in 100 convictions in 2007, the riot victims had nowhere focused to seek justice. The government showed an utter lack of seriousness in prosecuting the guilty. While this could have been predicted from the government that rules Maharashtra between 1995-1999, promises by the Congress-NCP government both in 1999 and 2004 once again proved to be shallow, The government that had cynically allowed Bombay to burn in 1992-1993 actively connived to ensure that the guilty were not punished.[5]
An investigation in September-October 2000 revealed the duplicitous role played just a year after winning elections in the state promising punishment to the guilty. [6] Justice BN Srikrishna in his report had made a strong case for the criminal prosecution of 31 policemen. In a stark betrayal, the affidavit of the Democratic Front government in the Supreme Court exonerated ten of these men in uniform. [7]
There was an utter lack of seriousness in dealing with cases. Charge sheets in over 1,700 cases were not filed on time. Investigations were tardy and witnesses who were often also victims of brute violence were simply not given protection. Between 1995-1999 when the perpetrator from the Shiv Sena and BJP were in power, it was they, in a cruel twist of fate, which enjoyed protection by the very police that had connived in allowing the violence to consume and destroy lives. In fact, the Bombay (read Mumbai) police closed 1371 cases of the 2267 cases with poor investigations. Due to strong and sustained protests two review committees were appointed to look at closed cases, eventually only one politician convicted. Of the 1371, 112 cases were re-investigated and of this in eight cases fresh charge sheets were filed. Of the 31 policemen indicted by the Srikrishna Commission 10 were punished after departmental inquiries, 11 were found not guilty and one died. Cases on the implementation of the Commission’s report are still pending in the Supreme Court. [8] As for politicians responsible for fomenting violence through hate speech, it was the state executive’s procrastination and the state judiciary’s acquittal of Shiv Sena (SS) supremo Bal Thackeray and other members of the political class that has accorded impunity. Madhukar Sarpotdar, Manohar Joshi and Gopinath Munde were some SS-BJP politicians accused in serious criminal cases who escaped judicial indictment. Under the SS-BJP government, a DGP-level committee under Arvind Inamdar was appointed to scrutinise 1,371 ‘A’ summary (true but closed) cases and decided to reopen/re-investigate 112 of these. Of the 112 cases reopened, charge-sheets were filed in only eight cases. Five of these resulted in acquittal. [9]
In 2000 and then again after the convictions in the March 1993 Bomb Blasts case began to be delivered (2006) this writer began reporting concurrently on the reality and perception of a system of discriminatory justice. Three months before the serial bomb blasts rocked the city and the country for the first time in March 1993, Bombay was torn apart by the politics of hatred and division in which over 1,100 people lost their lives, (December 1992-January 1993). A vast majority of those who were targeted, people who were selectively killed and their homes and businesses destroyed, belonged to India’s largest minority, its Muslims. Thirteen years later while bomb terror (March 1993) was punished, proponents of mob terror survived with blanket state impunity.[10]
Citizens protests erupted in the form of sustained campaigns, ‘Justice for All’ and ‘Nyaya Andolan’. The media at this stage played a significant role. [11] Forced to respond, the Maharashtra government had to admit that in the 894 charge-sheets filed with relation to the mob terror of 1992-1993, the record of convictions had been pathetic – only 27 cases had resulted in convictions. Shockingly, as many as 539 cases had by then resulted in acquittals or discharge, most of which the state has not thought fit to appeal. Seventy-five cases had been listed separately under a ‘Dormant File’ on the grounds that the accused are absconding.[12] The primary reason for this is poor quality of investigations (despite the voluminous evidence collected by Justice Srikrishna and the failure of the state and its police establishment to ensure confidence and security of witness survivors. Even so, in over a dozen meetings with campaigners backed by two leading former Police Commissioners, the state government refused to appoint officers with an impeccable reputation to re-investigate or further investigate the pending cases.[13]
Right to Information as a Tool
Journalist Meena Menon first began to use the RTI Act of 2005 as a tool to access information on the justice process in 2004 and the author in 2006.[14] Her first application was rejected under section 8 and while the first appeal was rejected in January 2006, her second appeal was allowed by the state information commissioner. By May 2007, Menon had received replies from the Mumbai police – there had been initially eight cases filed against Thackeray, four were later withdrawn, two closed for lack of evidence and two cases had charge sheets filed belatedly. Due to the pressure of the public campaigns after further delaying tactics, Menon started getting replies in January 2011, seven years after her first RTI application. In all, a total of almost 20 cases under 153A of IPC had been filed and while due to some public pressure, in 2000 the state home department had asked for all cases against Thackeray, until 2013 no permission had ever been granted for his prosecution.
Similarly Setalvad’s applications under RTI made in 2006 and 2007 revealed shocking answers. The same government that had twice promised due diligence in full and complete implementation of the Justice BN Srikrishna Commission report (1999 and 2004) had cynically exonerated all the men in uniformed indicted for unprofessional and criminal conduct making a mockery of the findings of Justice BN Srikrishna. Justice was not only flouted but seen clearly not to have been done.
Justice Srikrishna had held six policemen from the Colaba police stations (SI (sub inspector), Vasant Madhukar More, API (assistant police inspector) Sahebrao Hari Jadhav, police constable PC-3181 Suresh Pandurang Ithape, PN-985 Shivaji Govindrao Kashid, PN-2238 Hanumant Pandurang Chavan and HC-3649 Gopichand Shaitram Borase) responsible for allowing the violent mob to hack to death one Abdul Razak alias Aba Kalshekar (CR No. 13 of 1993).[15] According to the RTI findings by Teesta Setalvad, “ All these policemen were acquitted on November 18, 2005. Before this the policemen had simply been transferred.”[16]
Similarly Justice Srikrishna had observed that two policemen from Agripada division, “PC-23960 of LA-IV Ashok Naik and Rajaram K. Bhoir were arrested while indulging in rioting and violent activities (CR No. 98 of 1993). Ashok Naik was arrested by NM Joshi Marg police.”[17] Setalvad’s RTI findings: “There has been no prosecution of these two policemen. Earlier, one of them was transferred and thereafter one has passed away.”[18] For the Byculla division, Justice Srikrishna had observed, that the conduct of three policemen, “Patankar, PI (police inspector) Wahule and SI Ramdesai. Their conduct during the riots was extremely communal. They refused to record complaints in which Hindus were the accused and harassed and ill-treated Muslims. Their conduct indicated attempt to shield miscreants belonging to the Shiv Sena (CR No. 591 of 1992). The government should also institute an impartial inquiry into the cold-blooded murder of one young boy, Shahnawaz Hassanmiya Wagle. The inquiry conducted by deputy commissioner of police Surinder Kumar is just an eyewash. In stark contrast Setalvad’s RTI findings reveal that “: One trial, against PI Wahule, is pending. The other policemen have been exonerated without trial. There has been no fresh inquiry into the murder of the young boy, Shahnawaz Wagle, as directed by the commission.” Later Menon’s investigations took this further. The fourth investigation report in 2012 disbelieves eye witness evidence and says no case made out against police for the death of Shahnawaz Wagle in January 1993 outside his home. His sister Yasmin saw him being shot but no complaint was made and this brazen cover up as Justice Srikrishna called it, has remained, twenty years down, exactly that. [19]
Joint Commissioner of Police in 1992, RD Tyagi, assistant police inspector Deshmukh and police inspector Lahane of the Special Operations Squad had been found by Justice Srikrishna examining the conduct of the police in the Dongri area of Bombay to have been “guilty of excessive and unnecessary firing resulting in the death of nine Muslims on January 9, 1993, in the Suleiman Bakery incident (CR No. 46 of 1993). “ The Usman Suleman Bakery incident, like the Hari Masjid firing by the Bombay police inside a Mosque became iconic of the partisan and one sided behaviour of the Bombay police. Tyagi was indicted by both the People’s Verdict and the officially appointed Justice BN Srikrishna Commission. The Commission had also observed that the version of the police did not inspire confidence (the police had tried to justify the firing on grounds that the victims had confronted the police); the forensic report had revealed that the victims were fleeing and shot in the back; the Commission upheld the evidence of the students and teachers of the Madrassas-e-Darul-Ulum Imdadiya and observed that the police had been trigger happy and used force utterly disproportionate to the occasion. The residents of the Madrassa, including senior clerics had been assaulted. Maulana Huda who became key witness later, was hit on the forehead, he broke his finger, and falsely accused of harbouring weapons. He saw his colleagues being beaten as they protested their innocence; his senior being killed. Worse lay in store – those who survived the assault were taken to the police station, beaten again and charged with attempt to murder. Setalvad’s RTI findings revealed that RD Tyagi was discharged on April 16, 2003, and the state did not appeal the decision. In October 1995, under the SS-BJP regime, Tyagi was elevated to the post of commissioner of police, Mumbai, on retirement he joined the Shiv Sena. Sole witness Maulana Huda who appealed in the Supreme Court died a broken man. Tyagi who had been first discharged by the High Court on April 16, 2003 when the state of Maharashtra did not appeal the decision. Worse, the Supreme Court, on July 4, 2011, confirmed the decision of the Bombay high court and sessions court discharging former senior cop R D Tyagi and eight others in the Suleman Usman bakery firing case of 1993. Five months later. On December 20, 2011 the sole surviving witness of this horrific incident, Maulana Nur ul Huda passed away in his village. Until 2001, when the Maharashtra government through its police had finally charge-sheeted Tyagi due to the pressure from activists, he had remained distant. Since 2001, he became the face of this struggle. He appealed the discharge of Tyagi by the Bombay High Court and appealed the decision in the Supreme Court. His words when deciding to appeal against Tyagi’s discharge by the High Court remain etched in memory: “I want to show that we are not powerless, we too have guts. History will record that there were people who fought.” Unfortunately this fight went in vain.
The Mahim area of Bombay saw bitter violence and Justice Srikrishna recorded his finding that, “police constable Sanjay Laxman Gawade was openly indulging in riots and violent activities while carrying a naked sword along with Shiv Sena activist Milind Vaidya. Though the constable was placed under suspension and the sanction of the government was sought for his prosecution, the sanction has not yet been granted. The commission recommends that such sanction should be granted. (1998). Setalvad’s RTI findings reveal that this is the only case where an accused policeman was dismissed from service, on August 20, 2003.
In the case of the LT Marg police station where the Commission had found the “assistant police inspector Kamath, for utter dereliction of duty by not acting against the miscreants in the Diamond Jubilee Compound incident (CR No. 25 of 1993), Setalvad’s RTI findings show that API Kamath’s increments were stopped for some months but there was no prosecution. Similarly in the case of the MRA Marg police station where the Commission had observed that due to the slack conduct of “PC-24242 Vidyadhar Raghunath Shelar, police inspector Salvi, police subinspector (PSI) More, Babu Abdul Shaikh who had been taken into custody by them, was attacked and murdered by Hindu miscreants (CR No. 579 of 1992). Though the accused, all active Shiv Sainiks, have been arrested, the conduct of the police personnel is not beyond reproof”. Again Setalvad’s RTI Findings show that “ PC Shelar was kept on minimum pay scale for a year; but no penal action was taken against PI Salvi.
The Nagpada police was also found guilty of criminal conduct by the Commission, both police inspector Dhavale who overreacted by firing at a mob of 10-12 miscreants throwing stones, resulting in injury to a two-year-old child and constable Sanjay Bhosale who was part of the miscreant mob which broke open and looted articles from the shop ‘Cat’s Collections’. Setalvad’s RTI findings show that PI Dhavale was exonerated during trial; the state government did not appeal his exoneration. In tardeo area the Srikrishna Commission found “PC-7783 Shrirang Pathade, popularly known as “Richard Hawaldar”, openly collaborating with the Shiv Sainiks in looting and violent activities.” Setalvad’s RTI findings show that PC Pathade was simply transferred and exonerated of all wrongdoing. Similarly the Srikirshna Commission found that “Inspector BB Shinge, subinspector Shivgonda Patil and constables AM Ghadi, AY Kamble, PS Dukare, DR Phadtare, SP Patil and BK Gaikwad had failed to protect the lives and properties of the Muslim victims.” Setalvad;s RTI findings show that charges were not proved against BB Shinge; Constable Ghadi was compulsorily retired; Kamble was kept on a minimum pay scale for two years; Dukare was suspended and kept on a minimum pay scale for one year; Phadtare was transferred and put under suspension while Patil and Gaikwad were transferred and exonerated.
Like the Usman Suleman Bakery incident of unprovoked police firing that killed nine persons, the Hari Masjid Case was yet another stark example of brazen police misconduct during the January 1993 bout of targeted violence. This incident that occurred in the RAK Marg area was examined by Justice Srikrishna who found” police sub inspector NK Kapse’s act of unprovoked firing at Hilal Masjid [Hari Masjid] that killed six Muslims (CR No. 17 of 1993)” unjustified. Setalvad’s RTI findings in 2006-2007 found that PSI Kapse who had not even bothered to appear before Justice Srikrishna had been was simply exonerated through a departmental inquiry on November 20, 2002. He was since been promoted.
It was on January 10, 1993 policemen led by then sub-inspector Kapse fired several rounds against innocent Muslims praying inside the Hari Masjid within the Rafi Ahmed Kidwai Marg Sewri jurisdiction. Six persons were killed and while there were several witnesses to the incident, Farooq Mapkar is the only one who has stood firm. The incident reported by newspapers, was brought to public consciousness by the Srikishna Commisison report in 1998; and it remains an active case in court, due to the dogged persistence of the survivor, Farooq Mapkar. Both the police and the government did its utmost to protexct the perpetrators in this case by not filing FIR till court orders in 2008. To protect a police sub-inspector from prosecution, the Congress-NCP government even rushed to the Supreme Court to stay the CBI inquiry into the incident ordered by the Bombay High Court. The Supreme Court rejected the government’s petition and refused to grant a stay, saying that the Hari Masjid case was an “extraordinary case’’ The police failed, the CBI dithered.. Kapse, the policemen guilty of criminal acts, hasn’t faced a day’s suspension. The entire might of the `secular’ State is behind him. Whom does Mapkar have on his side? A few lawyers, Hindu and Muslim, who have fought free of charge – led by senior counsel Vijay Pradhan and Yusuf Muchhala; friends and fellow activists, determined to see the struggle to its bitter end. [20] In another similar, gruesome case, that of Star Metal works, the TADA court acquitted accused for lack of evidence. Nine people including two children were burnt to death.[21]
Forgotten Citizens
Every bout of mass crime, like Bombay 1992-1993 undoubtedly was leaves behind many levels of destruction and denials in its wake. Lives and neighbourhoods are torn apart, to change their characteristics forever. Among those attacked or killed, but who’s bodies are not identified or found, the “Missing Persons” are often not legally recognised as dead for seven long years. So not only do tragedies occur, but the necessary recompense or reparation is denied. In the case of the survivors of Bombay 1992-1993 too this happened. Sustained campaigns by different citizens groups kept the issues alive and kept a check on the state callouness and administration. Individual donors contributed to the education of Child Survivors of the violence even as calibrated attempts to invoke rights bodies like the National Human Rights Commission (NHRC) and the National Foundation of Communal Harmony) that paid educational dues until the age of 18, continued. A government that had ridden to power on the promise of the implementation of the Justice BN Srikrishna Commission report miserably failed when it submitted an appalling affidavit on record before the Supreme Court of India. Averments in the documents especially related to its moral intent to prosecute the guilty was flayed a s as series of protests, including a Public Hearing of the Survivors at the KC College (September 2000) jolted a complicit government and administration. While the sustained protests did not necessarily lead to direct prosecutions the spotlight shamed the government into paying many outstanding dues to Survivors especially Child Survivors. The protests also helped focus on cases like the Usman Suleman Bakery firing, the Hari Masjid firing and cases involving accused politicians from the Shiv Sena including Gajanand Kirtikar and Madhukar Sarpotdar of the Shiv Sena. A heartrending example of life for the forgotten citizens has been evoked by Meena Menon in her narrative. One such survivor of a husband who went missing in 1993, is Rashida Kotawala. Sitting sandwiched among vegetable vendors, Rashida Kotawala has been mending bags ever since her husband went “missing” in the riots, along with his brother, never to return. “If I had sat still hoping for his return, we would have gone hungry,” she says. To date, she functions without a hawking license, her elder son Hussain is studying to be a surgeon while the younger one is doing ayurvedic medicine. Interest free loans from her community, the Bohras, helped her educate her children. Her only fear is the civic demolition squad which keeps confiscating her bags and other materials, since she doesn’t possess a hawking license. [22]
Soon after the outbreak of violence in 1992-1993, the state government had been compelled due to the outrage and protests to appoint a sitting judge, justice Srikrishna to conduct the official inquiry. But, in the immediate response to the agony and outrage generated by the massacre of innocent citizens post demolition of the Babri Masjid at Ayodhya in 1992-1993, the Indian People’s Human Rights Commission set up the people’s tribunal to investigate the violence and collect evidence. Justices SM Daud and Hosbet Suresh conducted the inquiry. Between February and June 1993, the tribunal visited affected areas and recorded evidence, ably assisted by activists and organisations across Bombay. The tribunal collected 2046 statements in all, apart from collecting reports from journalists, activists and organisations. The report, People’s Verdict released in July 1993 apart from making valuable recommendations, identified accused rioters and 75 policemen guilty of criminal negligence, named by witnesses.
The state government announced the constitution of a judicial commission of inquiry through a sitting judge of the Bombay High Court, Justice BN Srikrishna to investigate the violence on January 17 though the Commission was formally established on January 25, 1993. On February 16, 1998 the Judge submitted his report that identified the Shiv Sena, its chief Bal Thackeray and their political allies, the Bharatiya Janata Party (BJP) as those responsible for the conspiracy to commit violence, specifically naming 31 policemen guilty of criminal negligence who deserved to be prosecuted. Though the SS-BJP government was voted out of power in 1999 in Maharashtra, few of the recommendations of the Commission have been implemented by the Congress-NCP governments that have governed since. On January 23, 1996 soon after riding to power in the state, the SS-BJP combine had scrapped the Justice BN Srikrishna Commission. Outraged protests by citizens beginning with a dharna by several organisations at Hutatma Chowk on January 30, 1996 and a petition filed by the People’s Union for Civil Liberties led the Central government under Prime Minister Vajpayee to re-instate it on May 28, 1996. Before this, evidence garnered by the Commission that was sought to be suppressed was collated in a ten part series of articles printed countrywide in various publications. [23] The report of the Commission remains a sorry testimony to the violence that engulfed Bombay. Sabrang was proud to publish the report in two editions within weeks of the report being submitted to the state government in 1998 and making it available at affordable prices. This was possible due to the individual contributions of Sabrang patrons. Despite all these collective efforts, the non prosecution of those found guilty has ensured not just their impunity but has contributed to the stranglehold of the Shiv Sena’s –and sister organisations — brand of violence and intimidation over Mumbai. The rule of law in Maharashtra has always been held ransom to the treats and intimidation by perpetrators of violence. The Shiv Sena and its off shoots have enjoyed soft treatment by a state, since its formation in the 1960s. This protective impunity reached an all time high after 1992-1993.
When Hate Goes Unpunished
Hate speech and hate writing for several weeks before violence erupts are the time-tested tactics used by perpetrators of communal violence. Such writing or speeches are a violation of Indian criminal law, specifically sections 153(a), 153(b), 505 of the Indian Penal Code and Section 295 of the Code of Criminal Procedure. [24]
In Bombay in 1992 and in 1993, the Shiv Sena chief Bal Thackeray used the newspaper he edited Saamna to foment hatred and violence against Muslims. Such writings were consistent and vicious being published from July 1992 onwards right into January 1993 and beyond. The Maharashtra government refused to act; the Bombay police was similarly weak-kneed. Despite brazen provocations to the Courts, none of the higher judiciary ever initiated suo moto, action against Bal Thackeray or the Saamna.In 1993, two citizens of Bombay, Dilip Thakore and JB De’Souza petitioned the Bombay High Court, laden with all this evidence, urging for a directive from the Court for the registration of an FIR against Thackeray. The trajectory of this case is noteworthy, and also a sorry comment on the judiciary. In September 1994, the Bombay High Court (division bench) dismissed the petition passing a detailed judgement exonerating Thackeray. Worse they commented that his vitriol was directed at “anti-national Muslims” and therefore condoned. The petitioners through their advocate Atul M. Setalvad went to the Supreme Court through a special leave petition. Shockingly this was dismissed without fair hearing. A signature campaign backed by thousands of citizens tried to effect a review, unsuccessfully.
Communalism Combat’s January 1995 issue carries the legal opinion of constitutional expert, HM Seervai and other jurists, Fali Nariman, Nani Palkhiwala, Soli Sorabjee, Hosbet Suresh on the Supreme Court’s decision. The record of our Court’s in prosecuting hate speech and hate writing has been poor. Few would disagree that the acceleration and regular use of hate speech and writing by men and women in public life is a new and disturbing phenomenon within Indian democracy, a trend that can be roughly dated back about 25 years. This is not to suggest that tendencies towards the calculated and selective use of both venom, stereotypes and demonising of sections of our people were entirely absent before, specifically, since Independence. What is noticeable, however, is the sharp acceleration in use of hate speech and it’s reproduction in writing, and the acceptance or ‘tolerance ’ that such use of hate speech has received among the wider polity. This phenomenon also actively coincides with the growth in presence and popularity of political parties and their ‘leaders’ who have tailored their appeal among people by pitting one section of the population over and above, another –in both spoken speech and written manifestoes of their political parties.
The writ petition in question against the state of Maharashtra urged directions for sanction for the criminal prosecution of Bal Thackeray for blatantly provocative writings against Bombay’s Muslims that encouraged Shiv Sainiks to launch a full-fledged pogrom against their lives and property in December 1992 and January 1993. In December 1992 and January 1993, the Saamna, a self-proclaimed mouthpiece of the Shiv Sena, published a series of editorials that were prima facie violation of articles 153 (a )and 153 (b) of the IPC.[25] The question before the court was whether, those nine articles cited by the petitioner, attracted the sections, 153 (a) and (b) of Indian Penal Code [26] that is whether they promoted enmity between Hindus and Muslims on the ground of religion, race and residence. [27]
To quote from an exclusive opinion obtained by us from noted constitutional expert, the late H.M. Seervai on the judicial response to this litigation, (Communalism Combat, January 1995, Cover Story, “Crime and Punishment”, page 2 onwards)“ I will only deal with one gross instance of the untenable interpretation put on the editorial in Saamna dated December 9, 1992 ( author to reply -page 38 of the judgement, see page 6-can you explain this) At page 37 of the judgement, (the judgement is a division bench judgement delivered by Justices Majithia and Dudhat of the Bombay High court, in September 1994 in response to which the petitioners went to the Supreme Court in a Special Leave Petition before Justices Punchi and Jaychandra Reddy which was summarily rejected) observed: “. In this article, it is true that reference is made to 25 crores of Muslims in India and relying on this, Shri Setalvad argued that Muslims as a whole are criticised. It is an admitted position that in fact in India at that time there were 11 crores of Muslims and, therefore, the figure given in the editorial appears to be a typographical mistake and hence from the reference to 25 crores Muslims one cannot draw an inference that whole. If one reads the editorial published on December 9, 1992 as a whole, through some caustic language is used, the dominant impression that the reader is likely to carry is definitely not ill-will, spite or hatred towards Muslims in general but it may carry ill-will and hatred against unlawful behaviour of anti-national Muslims including leaders like Imam Bukhari and Shahabuddin.”
“….In my opinion, the interpretation given to this exhibit is absurd and perverse. The statement that 25 crores Muslims was a typographical error is based on no evidence. It does not seem to have occurred to the judges that the respondents may exaggerate the number of Muslims in India in order to emphasis the dangers, which Hindus and Muslims would face.
“…Further, the passage divides the population of India between Muslims and Hindus and also states that Pakistan was said to have seven bombs. The seventh bomb was planted in India because Pakistan need not lead an invasion of India: 25 crores of Muslims loyal to Pakistan would stage an insurrection to destroy India. A clearer violation of sections 153 (a) and 153 (b) [28]is difficult to imagine.
In the last two paragraphs, which are not conspicuous for their clarity in substance, the court said that if sanction were given, it would reopen wounds between Hindus and Muslims. Public interest required that sanction to prosecute should not be given. This is contrary to the evidence on record.
“…. Government is prosecuting Shri Thackeray for some articles. Government is normally a better judge of the public interest. The government of India has ordered the prosecution of a number of persons, including a member of parliament at the time when riots broke out principally directed against the Sikh community. Such a prosecution would open up old wounds but justice demanded that the guilty should be brought to book….In my opinion the summary dismissal of the petition for special leave against the judgement of the Bombay High Court[29] by Justices Punchi and Jaychandra Reddy can only be described as amazing and subversive of the rule of law. The two Supreme Court judges[30] had observed that they agreed with the high court’s conclusion that it was not in the public interest that the issue should be raked up. But the two Supreme Court judges[31] overlooked the fact that in the whole elaborate that in the whole elaborate judgement (except the last two paragraphs) the court held that respondents were not guilty. The necessary consequence of the summary dismissal is that the Supreme Court confirmed[32] the high court’s conclusion that the respondents 3 and 4 were not guilty.
“…..Justice means justice to both sides in a petition. Not to decide the guilt or innocence of respondents 3 and 4 is a grave abdication of judicial duty to uphold the Constitution and the laws. For the second reason, namely, that the high court “had its fingers on the pulse of the situation” [33] and public interest would be better served by leaving the situation where it was, there is not a title of evidence that the two judges had their fingers on the pulse of the situation. On the contrary the government which must have its fingers on the situation, did not leave the situation as it was and ordered four prosecutions in respect of articles published by respondents 3 and 4 and one Shri Desai. In respect of these prosecutions government upheld the rule of law…..In my opinion, the Supreme Court should recall its order, admit the special leave petition and decide the matter on merits[34].
Indian law and governance had clearly not encountered a Thackeray who not merely abused the law verbally but converted this verbal vitriol into physical attack. Yet lawmakers have been lenient and guardians of the law lax in holding him and what he stands for, accountable. On July 28, 1999 twelve years after Shiv Sena chief, Bal Thackeray had been found in four election petitions[35] (and judgements delivered) to violate Indian election law, he was debarred from voting or standing for an election. The offences committed by Thackeray under section 123 and 123a of the Representation of People’s Act related to seeking votes on grounds of religion and spitting venom against one section of the Indian population. Unfortunately it took a dozen years for the EC to act on judgements filed by the Mumbai High Court and the Supreme Court in 1989 and 1995. Even after the decision was dished out, the term of the punishment was reduced from six years to two! Further, no restrictions were placed on Thackeray violating this section of Indian law yet again, during the then election campaign in 1999. [36]
On a different note, in a rather more quiet blow to hate speech, in early may 2013, a decision in Mumbai punished perpetrators of hate speech when two prominent Shiv sainiks were sent to jail and fined Rs 5,000. [37] This judgement came 20 years too late and punishment was given by a sessions court for provocative speeches in Bombay following the demolition of the Babri masjid. The convicted aren’t mere foot soldiers. Jaywant Parab was a municipal corporator at the time, and now heads the party’s labour wing. Ashok Shinde was an up-vibhag pramukh, a post of some local responsibility. Had he been alive, the party’s former MP, Madhukar Sarpotdar, too would have been sent to jail. Indeed, this case gained fame only because Sarpotdar was one of the accused. Even Sarpotdar didn’t get away entirely. This most high-profile riot accused died in 2010 a convicted man. Two years earlier, a magistrate had convicted Sarpotdar, Parab and Shinde under Section 153 A of the Indian Penal Code, but given them time to appeal. It was the appeal that was rejected on Saturday.Between the two phases of violence, in December 1992 and January 1993, when the city was on edge, a massive procession was taken out by Sarpotdar, then an MLA. Though escorted by top policemen, neither did they seize the placards which declared that the Shiv Sena’s terror was the only guarantee of Hindus’ safety, nor did they silence the slogans that were so foul that even policemen refused to read them out in court. This was among those cases that received a fillip after special courts were set up in 2008 (charges had been framed in 2001 only). Two special courts broke all records by convicting 20 persons in six cases, including, for the first time, Hindu rioters. The most famous conviction of course, was Sarpotdar’s. Sixteen years after the riots, an unknown magistrate ruled, for the first time in the State, that provocative speeches made by elected representatives, well aware that they would lead to violence, deserved punishment “to send the correct signal that wrong doing would be punished.” Forced to react, then Chief Minister Vilasrao Deshmukh promised to appoint a special PP to fight the appeal. He never did. Five years later, a judge as unknown as the magistrate found nothing in the arguments of one of the city’s best criminal lawyers to fault that conviction. Pointing out that India was a secular country, Additional Sessions Judge Dilip Murumkar ruled that freedom of speech could not mean hurting the feelings of others.[38]
Bias in the Police Force
If there was one issue that the Bombay violence brought critically into focus was widespread evidence of partisan behaviour in the Bombay police force. Senior IPS officer, then ——V.N. Deshmukh’s evidence before the official, Justice BN Srikrishna Commission, offers a senior police officer’s perspective on the communal tension that surrounded the kar seva. Deshmukh admitted that “from the day kar seva in Ayodhya was announced, though the police were expecting trouble, they had no idea as to the exact nature of the trouble. From July 1992 there was an undercurrent leading to communal tension on account of several activities being organised to propagate the rival views on the Babri Masjid–Ram Janmabhoomi dispute”. (Pg. 200, para 4.3, Justice Srikrishna Commisison). “A significant fact admitted by Deshmukh is his assessment of the deep–rooted and biased belief among 80 percent of the lower echelons of the Mumbai police that Muslim youths were more prone to crime though he was quick to add that there was no such impression among senior officers.” (Pg. 201, para 4.7). Following manifestations of this bias in 1992–93, some training measures have been initiated by the force. “Mr. Deshmukh was fair enough to accept that, possibly, this in–built impression amongst the members of the police force might have affected their handling the riot situations in December 1992 and January 1993. In any event, it was evident from the manner in which the members of the police force used to act and behave towards members of the Muslim community.” (Pg. 201, para 4.7).
This author’s tapping of the police wireless messages at the height of the violence that reflected deep-rooted bias for the Muslim community among sections of the force that were not just being abusive but actively interfering in Control Room messages to prevent help and assistance reaching members of the minorities under distress who needed protection. [39]
TADA, a brutal preventive detention law that precursed POTA was widely used against Muslims in the wake of the brutal blasts that ripped the city in March 1993. Bias and prejudice in not simply turning a blind eye to Hindu mobs and rioters but also to hate speech and writing of the minority; after the bomb blasts of March 12, 1993 this bias was legitimised into brute behaviour against families of those accused who were arraigned as accused. Even after the final judgement of the Supreme Court in the matter some questions on the investigations and prosecutions remain. [40]
Most significantly of all, December of 1992 and what followed was brute and bitter manifestation of discrimination from the institutions of governance (state) and distinct bias, even hatred, from sections of society. This was clear evidence of influence or penetration of a worldview that is, above all supremacist and at it’s core, anti-democratic and anti-Constitutional. Then and now, this poses a specific challenge to the deliverance of justice, equal opportunities in employment, equality before the law.
One of the most corrosive aspects of the violence of 1992-1993 was the blatant communal bias displayed by sections of the Bombay police, until then seen as among the most professional forces in the country. Arising out of this bitter experience and examining reports and recommendations of the National Police Commissions (1981-1989), serious questions of representation of minorities in different wings of governance and the state began to be raised. Specifically, an issue that drew attention was the poor representation of Muslims in the Indian police force. Journalist activist Teesta Setalvad and Moin Hafiz, editor Ahlan Latur have been collecting details of recruitment to the police force from among the Muslim minorities for the past 13 years. Attached is a diagrammatic illustration of the continued poor representation. Sholapur district has a relatively high recruitment in 2007 but other districts remain poor. (TS can share this data). Even today, 20 years after the bitter violence that tore at Bombay’s fabric transparency and accountability in appointments has not been achieved.
Twenty years down, can we say that today there is even open and real acknowledgement of this malaise and danger that the corrosive politics of communalism poses to our body psyche, leave alone a cure?
References:
[1] In several of the religious activities organised by the Bharatiya Janata Party and Shiv Sena, even long before December 6, 1992, slogans like “Garv se kaho hum Hindu hain” and “Hindustan Hinduonka, nahi kisike baap ka” were shouted and saffron and green flags were displayed prominently at different places. Deshmukh also stated that during this period of July to November 1992, “some of the speeches made by the leaders of Shiv Sena in public meetings which were well attended, particularly by young people, were abusive towards Muslims”. (Pg. 200, para 4.3). (From the Introduction by Teesta Setalvad to Sabrang Communication’s Volume of the Justice BN Srikrishna Commission Report, 1998)…This understanding of the motives and functioning of communal parties and organisations is particularly critical given the historical specificity and timing of the report. Not only does the party held responsible for igniting the communal cauldron nationwide head a coalition government at the Centre, the Union Home Minister, L.K. Advani, has been named as an agent provocateur by the Judge (Pg 4, para 2.3). Locally, units of the Sena, BJP, VHP and Bajrang Dal do not escape the Judge’s censure. Sena chief, Bal Thackeray, and MP Madhukar Sarpotdar, apart from middle–rung Sena leaders stand similarly indicted. (Ibid)
[2] The Maharashtra government’s ‘Memo-randum of Action to be Taken (ATR) by government’ in response to the report of the Srikrishna Commission of Inquiry, reiterates the familiar Hindutvawaadi version of the factors responsible for the riots: “Mumbai is the economic and commercial capital of the country and hence inimical forces were at work, both inside (read Muslims) and outside (read Pakistan’s ISI) the country, had planned to destroy the economic base of the country by fomenting trouble (December 1992 and January 1993 riots). This line of reasoning is amply borne out by the subsequent events of March 1993”. (Pg. 243, para25) “Anti–national Muslim forces, within and outside the country, instigated these communal riots, continued them for a long period and carried out serial bomb blasts on March 12, 1993”. (Pg.242, para 18) (From the Introduction by Teesta Setalkvad to Sabrang Communication’s Volume of the Justice BN Srikrishna Commission Report, 1998) ….
“A series of stabbings (in January 1993) and these two incidents (the killing of Mathadi workers on January and the burning to death of a Hindu family in Radhabai Chawl in Jogeshwari on January 8, 1993) worried the Hindus about their future and a spontaneous reaction for self–protection followed.” (Pg. 242, para20) The ATR has been submitted by a government led by a party several of whose top leaders — including the party chief, Bal Thackeray and Chief Minister, Manohar Joshi — and a large number of whose workers have been indicted for their role in the violence. It is hardly surprising then that the ATR engages in a perversion of discourse that is typical of the Shiv Sena — no evidence to substantiate the prevarications. In keeping with this party’s utter contempt and disregard for constitutional authority and the judiciary, there is not even a token attempt to deal with the series of serious cases and instances enumerated in the report. Instead of applying itself to the issue by issue findings of the Judge, the ATR merely reiterates the series of generalisations that the Shiv Sena and Hindutva combine always use to cloud their criminal acts, generalisations for which neither the party nor the state could offer any worthwhile evidence before the Commission of Inquiry. (Ibid)
The ISI bogey: A significant contribution of the Justice Srikrishna Commission report is that it debunks the unsubstantiated theory peddled by the Sena–BJP–RSS combine — and conveniently accepted by the then Congress government and the administration — that the Mumbai riots in December 1992–January 1993 and the serial bomb blasts in March 1993 were part of a common design and were the result of a Pakistan–inspired ISI (Inter Services Intelligence) conspiracy to de–stabilise India. This argument has been used repeatedly to justify acts of venom and violence unleashed by Sena leaders and their cadres on sections of Bombay’s minorities on the ground that they were carried out in self–defence and were “retaliatory” in character. Soon after the violence of December 1992–January 1993, Gopinath Munde, then leader of the Opposition in the state assembly, and presently the deputy chief minister of Maharashtra (BJP) had alleged that it was the areas infested by the ‘infiltrators’ from Bangladesh and Pakistan (read Muslim–dominated areas) that had provoked the violence in Mumbai. This theory has been conclusively exposed as malicious by the Commission of Inquiry since no witness, including the Shiv Sena Member of Parliament, Madhukar Sarpotdar, was able to provide any evidence to substantiate this spurious version. (Pg. 165, para 21.42). As to how widely prevalent this theory was is evident from the fact that even the then Governor of Maharashtra, C. Subramanium, had made an entirely unsubstantiated statement alleging a foreign hand behind the riots. (Pg. 220, para 1.21 & Pg.222, para 2.13). )Ibid)
In Chapter VI, Volume 1 of the report that deals with this issue, Justice Srikrishna has concluded that a causative link is in evidence between the two riots and the bomb blasts: “Tiger Memon, the key figure in the serial bomb blasts case, and his family had suffered extensively during the riots and therefore can be said to have deep–rooted motives for revenge. It would appear that one of his trusted accomplices, Javed Dawood Tailor alias Javed Chikna, had also suffered a bullet injury during the riots and therefore he also had a motive for revenge”. (Ibid)
The Judge adds: “Apart from these two specific cases, there was a large, amorphous body of angry, frustrated and desperate Muslims keen to seek revenge for the perceived injustice done to and atrocities perpetrated on them or to others of their community and it is this sense of revenge which spawned the conspiracy of the serial bomb blasts. This body of angry, frustrated and desperate Muslims provided the material upon which the anti–national and criminal elements succeeded in building up their conspiracy for the serial bomb blasts.” (Pg. 45, Term No.VII, para iii). (Ibid)
[3] The press release dated around December 20, 1992 of the BJP and SS announced the launch of this programme on the streets in retaliation for namaaz (Friday prayers) being offered by devotees on the streets. Lack of adequate space within mosques coupled with irate Bombay commuters who saw the prayers on the streets as a sign of Muslim intemperance was also cleverly exploited.
[4] The official name of Bombay had been changed to Mumbai by the SS-BJP combine in 1998 after coming to power.
[5] Communalism Combat, The Sounds of Silence, August September 1994, Communalism Combat, Who Is to Blame, March 1998,
Riots and After in Mumbai (Chronicles of Truth and Reconciliation) Meena Menon, SAGE, 2012.
[6] Teesta Setalvad in Communalism Combat
[7] RD Tyagi, Joint Commission of Police, (later police commissioner, Mumbai)
Srikrishna Commission’s findings:
“After carefully examining the evidence on record, the Commission is of the view that the story of the police does not inspire credence…The Commission feels that the police were very much influenced by the floating exaggerated rumours of attacks from sophisticated firearms… The result – deaths of nine innocent persons in the Suleman Bakery and adjoining premises. The evidence on record in no way bears out the policy story that they were terrorists, much less with deadly arms; nor does the evidence suggest that it was necessary for the police to carry out such an extensive firing as they did. This is one incident where the police appeared to be utterly trigger-happy and used force utterly disproportionate to meet the apprehensions of private firing assuming there was one. The responsibility for the incident must squarely fall on Joint CP, RD Tyagi who was overall in charge of the operation and API Deshmukh
DF Govt Affidavit:“No action was proposed against RD Tyagi, then Jt Commissioner of Police, Mumbai for the reason that he had since retired on October 30, 1997 and service rules say if the event in question has taken place more than four year before action is precluded.” Further, the committee exonerated Tyagi while indicting two junior officers under him for the incident: “The Committee did not find that it was feasible to launch a prosecution against him, as the act was done in the discharge of his duty”. Departmental enquiry has, however, been ordered against Lahane and Deshmukh who were members of the Special Operation Squad (SOS) headed by Tyagi!
Dattaray Dhawale, Police Inspector, Nagpada police station
Srikrishna Commission’s findings:“Police Inspector Dhavale overreacted by firing at a mob of 10-12 miscreants…resulting in injury to a two year old child… The Commission would have been inclined to pass off Dhawale’s case as an unfortunate incident, but a closer examination of the case papers in this case discloses peculiar features.” It is clear that the reason why the Judge recommended penal action against this policeman was because he has tried to tamper with the evidence and show that the mob was 100-120 strong rather than of just 10-12 persons.
DF Govt Affidavit:
“The firing was not unjustified and the injury caused to a 2-year-old child was accidental.”
Subhash Salvi, inspector and
Vishnu More, sub-inspector, MRA Police station
Srikrishna Commission’s findings: “In view of the Commission, Police Inspector Salvi, Police Sub-Inspector Mor and PC 24242 Vidyanath Raghunath Shelar are squarely responsible for virtually handing over Babu Abdul Sheikh to the mob resulting in his being virtually hacked to death.”
DF Govt Affidavit: “They had done their duty by handing over the constable, Vidyadhar Shelar while in whose custody the injured person was attacked. A departmental inquiry has been initiated against Vidyadhar Shelar, police constable.”
VB Shinge, Shivgaunda Patil, Bhausaheb K Gaekwad, Antop Hill police station
Srikrishna Commission’s findings: VB Shinge, Shiv Gaunda Patil, Bhausaheb Gaekwad “failed to protect the lives and properties of the Muslim victims”. From January 3, 1993, when a group of 15-20 Shiv Sainiks move around tin Pratikshanagar identifying and marking out Muslim homes with a white chalk mark, to January 9, 1993 when the physical attack took place on Muslim homes, including the burning alive of three Muslims in a car, all incidents took place within striking distance of the Pratikshanagar police chowky.
On April 20, 1993 Vinayakrao Raosaheb Patil was dismissed from service “for developing relationship with criminal elements”. The commission states that the conduct of other policemen from the Antop Hill police station, including VB Shinge, Shivgaunda Patil and Bhausaheb Gaekwad was not above aboard and the ‘massive operation launched by Hindu miscreants in Pratikshanagar was testimony
DF Govt Affidavit: Committee: “As regards police inspector, police sub-inspector, VB Shinge, Shivaji/Shivgaunda Patil, Bhausaheb K. Gaekwad all working at the Antop Hill station at the relevant time, the committee came to the conclusion that the charge against them that they closed offences as ‘A’ summary (refused to pursue criminal case) and that they could have protected lives and property of Muslims was of a general nature… hence no departmental inquiry was necessary against them.
Shrirang Patade, Tardeo police station
Srikrishna Commission’s finding: “Shrirang Pathade, popularly known as Richard Hawaldar was openly collaborating with the Shiv Sainiks in looting and violent activities.”
DF Govt Affidavit:Committee: “There was no substance in the charges against him and hence no departmental inquiry was recommended.”
[8] Riots and After in Mumbai (Chronicles of Truth and Reconciliation) Meena Menon, SAGE, 2012.
[9] Teesta Setalvad in Communalism Combat, October 2000
[10] Ibid
[11] The Bombay edition of The Hindustan Times, Aapla Mahanagar and Hamara Mahanagar as also CNN-IBN played a leading role.
[12] Details given to campaigners from the Justice for All and Nyaya Andolan movements of which the author was a part
[13] Former police chief Julio Ribeiro and Satish Sahney backed this demand of the campaign but the Maharashtra government remained adamant.
[14] Details available in Riots and After, Meena Menon, SAGE 2012, Communalism Combat, Teesta Setalvad, 2006-2007 and also presented at a Meeting to commemorate Twenty Years after Bombay Violence on January 2, 2013. (Organised by Sabrang and St Xaviers College, Mumbai)
[15] Justice BN Srikrishna Commission Report
[16] Communalism Combat, Teesta Setalvad, January 2007.
[17] Justice BN Srikrishna Commission Report
[18] Communalism Combat, Teesta Setalvad, January 2007
[19] Riots and After in Mumbai (Chronicles of Truth and Reconciliation) Meena Menon, SAGE, 2012.
[20] Interviews by the author with Farooq Mapkar
[21] Riots and After in Mumbai (Chronicles of Truth and Reconciliation) Meena Menon, SAGE, 2012)
[22] Ibid
[23] (Teesta Setalvad and Javed Anand co-authored these articles that were carried by The Mid-Day, Pioneer, Prabhat Kesari and several other publications)
[24] (Footnote: Hate Speech and Indian Democracy, Teesta Seytalvad, Indian Law School, Pune, 2001-2002)
[25] 153-a, IPC, “promoting enmity between different groups on grounds of religion, race, place of birth, residennce, language etc..and doing acts prejudicial to maintenance of harmony”; 153-b, IPC, “imputations, assertions, prejudicial to national integration”
[26] Ibid
[27] (Footnote: Hate Speech and Indian Democracy, Teesta Setalvad, Indian Law School, Pune, 2001-2002)
[28] Justices Majithia and Dudhat of the Bombay High court, September 1994 in J.B. D’Souza versus State of Maharashtra
[29] SLP, J.B.D’ Souza versus State of Maharashtra, Justices Punchi and Jaychandra Reddy, January 1995
[30]Ibid which judgement
[31] Ibid
[32] SLP,Justices Majithia and Dudhat of the Bombay High Court, September 1994
[33] Justices Majithia and Dudhat in J.B. D’Souza versus State of Maharashtra, September 1994
[34] Communlism Combat, “Crime and Punishment”, January 1995,pg 13
[35] Subhash Desai v. Sharad J.Rao; AIR 1994 SC 2277; Ramesh Yashawant Prabhu v. Prabhakar Kashinath Kunte; (1996) 1 SCC 130; AIR 1996 SCW; AIR 1996 SC 1113; Justice Variavar in Manohar Joshi versus Nitin Bhaurao Patil, Bombay High Court, 1987
[36] (Hate Speech and Indian Democracy, Teesta Seytalvad, Indian Law School, Pune, 2001-2002)
[37] (A Quiet Blow to hate Speech, Mumbai Mirror, Jyoti Punwani,).
[38] Ibid
[39] (Journalist Teesta Setalvad’s tapping of police wireless messages was stark evidence of this :-Dongri 1 to Police Control: Two military trucks have come carrying milk and other rations, led by Major General (retired) Syed Rehemtullah. Therefore, a crowd has gathered at IR road near Bhendi Bazar, please send some more men.(Voice): Why the f—are you distributing milk to them laandyas (abuse for a circumcised person)? Do you want to f—their mothers? Miyan (Muslim), bastards live there.Dongri 1, (agitated): There are lots of police here. Let them distribute milk.
Voice: Why are you distributing milk to them? Are you doing them a favour or what?
V.P.Road to Control: A mob has gathered outside Maharashtra garage, Ghas galli, Lamington road with the intention of setting it on fire. Send men.
Voice: Must be a laandya’s garage. Let it burn. S— don’t burn anything that belongs to a Maharashtrian. But burn everything belonging to a miyan, the bastards.
(Excerpts from transcripts of police wireless messages taped by Teesta Setalvad between January 10 and 18, 1993)
[40] (Who is To Blame? March 1998, Communalism Combat, Teesta Setalvad, Where is your Allah now? The police force in Bombay, in Maharashtra and all over India must not forget that they are Hindus first and policemen thereafter,” Bal Thackeray pronounced at the Vijayadashmi Day rally at Shivaji park, Bombay, in October 1993. The Maharashtra government and the Bombay police chose to turn a deaf ear to such blatant communal incitement of policemen.
In sharp contrast to official lethargy in prosecuting and punishing those responsible for the December – January riots was the alacrity with which the Maharashtra police handled the serial bomb blasts which killed over 300 people in the metropolis in March, 1993. It was only to be expected that the law and order machinery nab the culprits, conduct interrogations and prosecute them. But it did much more. In the name of investigations, hundreds of relatives, friends and even casual acquaintances — men and women, young and old — of the suspects, were illegally detained for days and badly tortured.To cite just two instances: Rehmat Sayed Ali Kadri: About 70 years in age, she is the mother of Shabbir Kadri, an accused from Mhasla in coastal Maharashtra who is absconding. She was illegally detained first at the Mhasla police station and later at the Mahim police station in north central Bombay. Her daughter and daughter-in-law (with a 10-month-old son) were also kept behind bars.Said Ms. Kadri: “For 15 days, all three of us were dragged by the hair every day, beaten and verbally abused. The 10-month baby was starved of any food. We were repeatedly humiliated. Shabbir’s father was stripped and paraded before us. ‘Where is your Allah now? Forget him. say, Jai Sri Ram,’ they used to shout.The Haspatel family: On April 13, 1993 with much fanfare, the Maharashtra police revealed that they had unearthed 16 “projectiles” (rocket launchers) from a home in Walwat village on the coast. the “projectiles” were proved to be spindles used in a local yarn factory.But for 10 days before that, the two male members of the family, Iqbal (65) and Mobeen (17) had been detained and tortured daily. Also illegally detained, verbally abused and humiliated for five days were two women from the family — Zubeida (55) and her daughter-in-law along with her 18-month-old baby. Senior police officials assisted by a woman constable beat the family, stripped the men and paraded them before the women every day. Mobeen, who had been cured of epileptic attacks for over ten years started getting renewed attacks after being subject to “parrot torture” for four hours every day. “You have to stop saying Allah. Or you will have to go to back to Pakistan,” is the most common refrain they heard from policemen in the lock-up. Finally the National human Rights Commission awarded the Haspatel family compensation.)