"I piss on the Court's judgements. Some people are trying to get a case admitted against me. But I am not afraid of court judgements. Most judges are like plague–ridden rats against whom direct action should be taken:" Bal Thackeray quoted in the lead story published in Saanj Jansatta, (June 25, 1993) and in Gujrat Samachar (June 28, 1993). Addressing Shiv Sainiks at a close-door anniversary rally, on June 19, 1994 he had also exhorted his followers and all Hindus to "arm themselves with AK56 rifles and carry these and other such weapons on their person."  

After the demolition of the Babri Masjid in early December 1992, there was unprecedented violence in Bombay. This reached the level of a pogrom directed against the Muslims in early January 1993. The role of the police was extremely unsatisfactory. In several cases the police not only did not take action against the rioters but assisted them.

The anti-Muslim pogrom was stoked and led by the Shiv Sena and its leaders, in particular its chief, Bal Thackeray. Thackeray was and is the editor of a daily newspaper, published in Marathi, Saamna. During December 92 January 93, Saamna published a number of editorials and other writings which were clearly in contravention of section 153A and 153B of the Indian Penal Code (see box).

Section 153A makes it an offence punishable with three years imprisonment if any person promotes or attempts to promote disharmony or feeling of enmity, hatred and ill-will between different religious groups.

Section 153B makes it an offence punishable with three years imprisonment if any imputation is made that any class of persons, by reason of being members of a religious group, are not loyal Indians.

(In a decision given in Babubhai Patel case the Supreme Court had held in 1980 that saying that Muslims indulge in riots or violence contravened section 153A. It also laid down a general principle that a person could not promote such enmity in the guise of writing a political thesis or a historical
analysis.)

Apart from the nine editorials specifically cited in the petition, a scrutiny of the issues of Saamna (launched by Thackeray in 1989) before and after 1992-93 shows that systematic venom is spewed against the minorities and other critics of the Sena through its pages.

It needs to be stressed here that the specific writings relied upon in this writ petition were written during the riots of December 1992 and the anti-Muslim pogrom in January 1993 they were instrumental in provoking large-scale destruction, looting and killing in Bombay. During that period, Sena leaders openly admitted that their “boys” were on the streets “teaching the Muslims a lesson”.

Action of any kind against Thackeray was and is still conspicuous by its absence. Confident that none will be taken, he continues unchecked, spreading vitriol and prejudice. In the late 80s, at his annual exhortation on Vijayadashami Day he urged Hindus to arm themselves. The speech was given lead coverage in a leading Marathi daily, the Maharashtra Times. Despite a memorandum signed by a few hundred journalists at the initiative of ‘Journalists Against Communalism’, the then Congress (I) government under chief minister S.B. Chavan took no action against him.
          
A few months after the present writ petition had been filed; Bal Thackeray addressing the anniversary rally of Shiv Sainiks in June 1993 spat venom at the judiciary (See box below)

Recorded evidence of this speech of Thackeray’s is available with the Crime Branch, C.I.D., Bombay police. Ironically, every wing of the state machinery – government, police and judiciary – allowed even these utterances to go unpunished.

Barely ten months after spearheading the anti-Muslim pogrom in Bombay in January 1993, Thackeray went several steps further. Speaking at the Vijayadashami rally in October of that year he said, “The police force in Bombay, in Maharashtra and all over India must not forget that they are Hindus first and policemen thereafter.” The Maharashtra government and the Bombay police chose to turn a deaf year to such blatant incitement of communal feelings in the police force.

As no action was taken by the police or the state government against Saamna for its highly inflammatory writings throughout December 1992-January 93, a public interest petition was conceived. The petition pointed out that the government and the police, by not taking action against Bal Thackeray, were abdicating their statutory duties. It asked that the Bombay High Court direct the state government to launch proceedings against Thackeray under sections 153A and 153B of the IPC.

The People’s Union for Civil Liberties (PUCL) which was involved in the filing of the petition strongly felt that it would have maximum impact if some Maharashtrian Hindus – the prime support base of the SS – filed it. The petition was even signed by four prominent Maharashtrians and readied for filing in the second week of March 1993.

On the day it was to be filed, however, the signatories withdrew after some of them had received intimidatory threats. The effort to bring Thackeray to book had to be further delayed. Finally, J.B. D’Souza, former chief secretary of Maharashtra agreed to sign the petition. Later, Dilip Thakore, senior journalist became a co-petitioner.

Both PUCL and the Committee for the Protection of Democratic Rights (CPDR) intervened in the petition lending their support. Atul Setalvad, senior counsel assisted by Shiraz Rustomjee appeared for the petitioners. At the Supreme Court, advocates R.N. Karanjawala also assisted Setalvad.

The writ petition filed in the Bombay High Court – citing nine editorials published by Saamna – prayed that the police and the Maharashtra government be directed to prosecute and punish editor, Thackeray, and executive editor, Sanjay Raut.

The petition came up for admission before a division bench of the Bombay High Court in early April 1993. Affidavits were filed on behalf of the police and Thackeray opposing the admission.

The affidavit filed by a deputy commissioner of police contended that none of the writings to which the petitioner has referred constituted an offence punishable under section 153A or 153B. The police also stated that they were not, in any way, favouring Thackeray or Raut: that in respect of certain writings action under section 153A had been initiated against both Thackeray and Raut but government sanction was being awaited (see box).

The state government also filed an affidavit opposing admission and stating that whether a sanction should be granted in respect of the offences where the police had initiated action was under consideration of the govern
ent.

Raut filed an affidavit on behalf of both himself and Thackeray. He did not deny the publication of any of the articles but raised technical objections: a writ of mandamus did not lie and that the government had absolute discretion as to whether or not prosecution should be launched.

At the end of the first round, the high court merely passed an order on April 30, 1993 adjourning the petition for admission to June 14, 1993. The state government was also directed by the court to take and communicate its decision on whether or not sanction was granted to prosecute in respect of offences where the police had filed complaints.

The court was informed on June 9, 1993 that sanction had been granted. The petition was thereafter admitted by the high court on June 14, 1993 and certain amendments were carried out. The bench which admitted the petition had directed that because of the importance of the issues it raised, the petition be heard speedily. Even though the petitioners made numerous efforts to have the petition urgently heard, it could not be heard till September 1994. Either Thackeray and his advocates wanted time, or the court did not have time to deal with the petition.

The petition was ultimately heard by a division bench of the Bombay High Court comprising of justices Majithia and Dubhat in September 1994, i.e., 18 months after the alleged offences were committed and 16 months after the writ was filed.

In the petition, as amended, and which came up for hearing before the high court, the petitioners had contended that the articles in question were in gross contravention of sections 153A and 153B of the IPC; that the police had only chosen to take action in respect of some writings where the attack was directed not at the Muslim community in general but at one senior police officer, namely deputy commissioner of police, A.A. Khan, a Muslim.

It was specifically contended in the petition that the deliberate official inaction was due to political reasons and it amounted to an abdication of the functions of the state. It was also the contention of the petitioners that failing to prosecute such blatant violations of section 153A and 153B was improper and illegal.

No affidavit in reply to the main petition was filed by Thackeray or Raut. The police, however, did file a further affidavit in which it was stated that of all the articles the petitioners had relied on; only one was found to be objectionable; in respect of that one article the police had decided to take action subject to government’s sanction. The government, too, filed an affidavit stating that it had referred the articles on which the petitioners had relied to the Press Council of India and were awaiting the decision of the council on the subject. The high court, in its 57-page judgement delivered on September 27, 1994, dismissed the petition. The judges ruled that none of the articles on which the petitioners had relied violated section 153A, and that, in any case, it was not advisable to re-open the subject after considerable time had elapsed, as it may re-kindle communal feelings. It also pointed out that the government had already taken action in respect of some offences.

The high court bases its conclusion on the general proposition that the articles must be read as a whole. For this it relied on an earlier decision of the Bombay High Court in the Godse case.

That the high court came to this conclusion by misreading the articles and – either through omission or commission – failing to read the offending operations is clear from their remarks to the individual articles cited (See box, page 6)

To every offensive and violative statement hurling inflammatory abuse at the Muslim community, the HC plaintively repeats, “This article does not create ill-will, spite and hatred in the minds of Hindus against Muslims.”

Similar comments are directed by the HC at other articles appearing in Saamna dated December 15, 1992 and January 5, 1993 (pages 41-42)

It is only as far as the article dated January 11, 1993 is concerned, because the police had accepted this as contravening the relevant sections that the high court, therefore, accepted that position and stated that action was, in fact, being taken in respect of that article. It is significant however, that, according to police, they had done nothing except registering a case for investigation.

Summing up the reasons for reaching its conclusion, the division bench of the HC says, “After going through all the aforesaid articles which were being published from time to time after the fall of the Babri Masjid and in the wake of the riots that broke out in areas predominantly occupied by Muslims, it appears that criticism is levelled against anti-national Muslims, who at the behest of Pakistani agents, poured poison in the minds of local Muslims and developed hatred in their minds against Hindus in Bombay which ultimately resulted in unprecedented riots…these articles do not criticise Muslims who were traitors to India.”

Not only is it clear, therefore, that the conclusion of the high court that the articles did not contravene section 153A or 153B is, to say the least, perverse. Violence erupted in many parts of the country after two lakh kar sevaks demolished the Babri Masjid in December 1992. A disturbing pattern of state – and police – bias against the Muslim minority was evident in their failure to protect the lives and property of Muslims and to speedily control the countrywide outbreak of violence.

This was most obvious in the metropolis of Bombay. Yet the tenor of the comments of the two judges clearly imply that they have tacitly accepted Bal Thackeray’s and the Saamna’s vitriol directed at Muslims – a factor that contributed significantly to the anti-Muslim pogrom in Bombay in January 1993.

Moreover, the effect of the judgement is to substantially water down the impact of sections 153a and 153B at least in the state of Maharashtra. If these articles are not treated as in contravention of the said sections, it is difficult to imagine what writings ever would come within the mischief of these sections. Further by coming to the conclusion that such clearly inflammatory articles did not contravene those sections, it is virtually a ratification of such writing and an open invitation to indulge in such writing in future.

The high court totally ignored the attitude of the police and the state and the gross delay in pursuing the matter even in respect of the articles which the police considered objectionable. Though the police had applied for sanction in January, 1993, no sanction was forthcoming till after the present petition was moved in June, 1993. Even though over 18 months have since passed, no effective action against the offenders has been taken.

In arriving at its decision, the high court also did not take into consideration the strange attitude adopted by the state government. It is the primary duty of the state to maintain law and order and it is grossly improper for the state to abdicate that function by stating that they would await the decision of the Press Council of India.

The State, by not initiating action against the authors of these offending and inflammatory articles had totally abdicated its functions of maintaining law and order. This is all the more so because the Press Council of India has no function to administer the criminal law.

The Press Council of India is constituted under the Press Council Act, 1978 and its function is to preserve the freedom of the press and to maintain and improve the standards of newspapers. The maximum action it could take, if in its opinion the standards of journalists, editors or public trusts have been violated, is to censure the editor and the writer.

The high court purported to say that in the public interest it would not be desirable to rake up the issue after such a long delay. It is interesting to note in this connection that on affidavit neither the state nor the commissioner of police had contended that because of the delay such action should not be initiated.

Moreover, as the State and the police maintain that they were initiating or continuing prosecutions against Thackeray and Raut for other writings, obviously there can be no apprehension in their minds that doing so would create public disorder.

While the petitioners had moved with all reasonable speed, and delays in hearing of the petition had occurred only because of the court being unable to find time or the respondents’ desire to delay matters, it was grossly improper to reject the petition on the ground that a considerable time had elapsed since the offences were committed.

Moreover, this was a public interest litigation and the provision of the law on time is directly to be found in section 467 and 468 of the Criminal Procedure Code: this section clearly lays down the period of limitation for such offences as three years.

The attitude of the high court on this issue has resulted in making out a case for the respondents which they had not made out themselves. This in effect means that however grave an offence, if the person concerned can avoid, due to influence or other reasons, the launching of prosecution within a reasonable time, no action can be taken against them.

Further the whole approach of the high court that the tranquillity need not be disturbed is fallacious in several basic respects.

In the first instance, while it is (fortunately) true that the violent incidents of January 1993 have not recurred, the incidents have left a big scar on the state of Maharashtra generally and on the Muslim community in particular. One of the reasons why the riots in January 1993 were unprecedented as compared to previous communal disturbances in this city was not only because of the existence of perpetrators of this kind of writing but because of the degree of official connivance with the rioters.

The impact of this on the minority community was and is severe as failure to take action against those who inflamed communal feelings during the sensitive period would have confirmed such apprehensions and feelings. The whole approach of the high court is therefore, unjust and improper.

Being aggrieved by the decision of the high court the petitioners filed a special leave petition in the Supreme Court of India. This petition came up for admission before a division bench of the Supreme Court comprising of Justices Punchi and Jay Chandra Reddy on January 6, 1994.

The Supreme Court dismissed the petition mainly on the ground that as the high court – which is expected to have a correct picture of what they called the pulse of the city – had declined to interfere, it would not be proper for the Supreme Court to do so.

It was pointed out by senior counsel for the petitioners, Atul Setalvad that since the articles published in Saamna on which the petition relied involved gross violations of two sections of the IPC (153A and 153B) that had been inserted for the specific purpose of acting as a check on communally inflammatory writings, in the interests of public tranquillity, action must be taken by the highest court in the land.

The SC responded by stating that action had already been taken by the state in respect of four editorials appearing in Saamna (see box). Counsel pointed out that all cases where some action had been taken involved articles or editorials where attacks had been made on a particular Muslim police officer and not on the entire community as in the case of editorials challenged in the petition. These editorials, it was argued involved much graver offences as they were directed against the entire Muslim community.

Despite the fact that the Maharashtra government had taken a clear stand before the Bombay High Court that the editorials did not violate sections 153a and 153B of the IPC and hence no action against Thackeray and Raut would be initiated, the SC refused to substitute the HC judgement with one of its own.

The consequences of the SC’s refusal to intervene in this case that involves gross violation of criminal law are dangerous to the secular ethos, vital to any democracy. The message sent down is that intemperate, vitriolic writing that promotes enmity between different religious groups will go unpunished. It will not even invite mild censure.

To all minorities in India, the Bombay High Court and Supreme Court have by their conduct, denied any guarantee that secularism is the basic feature of Indian laws. Moreover, the impact of the judicial decisions reduces two vital sections of the penal code, 153A and 153B – introduced to preserve public tranquillity – to dead laws. What use are these sections if they are not invoked for effective action against those spreading communal hatred?

The various segments of this story appeared as part of the cover story of Communalism Combat, January 1995.