The release of a biopic based on a Hindu chauvinist leader and its promotion by the Bollywood Film Industry only shows growing acceptance for Hindu theocracy in a country that is otherwise known as the world’s largest secular democracy.
 
Directed by Abhijit Panse, Thackeray is the story of Bal Thackeray, a well-known Hindu supremacist who controlled India’s financial capital of Bombay that later came to be known as Mumbai, partly because of his pressure. He was the co-founder of Shiv Sena – that believed in Maharashtrian nationalism.
 
Thackeray, as the film reveals, was pained to see how the original inhabitants of the state of Maharashtra were mistreated by those who had come from outside and dominated businesses in Bombay. Through Shiv Sena, he promoted regionalism and targeted Tamils and other ethnic groups, who he thought had marginalized his community. His supporters had begun with targeting signboards in other languages. The renaming of the city as Mumbai – an indigenous name was the culmination of such campaigns. 
 
Thackeray who began his political career after giving up his job as a cartoonist with Free Press Journal gradually turned into a Hindu nationalist leader from a regional leader, who ran a parallel administration in Maharashtra – where the local police officers openly supported him.
 
The story of the film does not hide Thackeray’s prejudice against non-Maharashtrians and Muslims. Ironically, the character of Thackeray has been played by a talented Muslim actor Nawazuddin Siddiqui, who was born in Uttar Pradesh. The migrants from that state were also targeted by Shiv Sena in the recent past. This is despite the fact that Thackeray openly supported a campaign to demolish an ancient mosque in 1992. The film also clearly shows how blatantly he advocated for razing the mosque that Shiv Sena and its ally and the currently ruling right-wing Hindu Nationalist Bhartiya Janata Party (BJP) claimed was built by the Mughal emperor Babar after destroying a temple at the birthplace of a revered Hindu god, Lord Ram.
 
The film not only tries to glorify Thackeray by blaming the marginalization of people of Maharashtra on the outsiders, it also tries to justify Thackeray’s role in anti-Muslim violence of 1993 in Bombay as a reaction to Muslim’s “lack of loyalty to the nation”.
 
One important aspect of the film was the role of the self-proclaimed secular Congress party in patronizing Thackeray to consolidate its support in Maharashtra. That he supported the national emergency by the then Congress leader and Prime Minister Indira Gandhi to save Shiv Sena from being outlawed for the sake of national interest, proves how far he had gone to establish himself as a die-hard patriot who not only believed in regional nationalism but also Hindu nationalism.
 
The real story of Thackeray isn’t complete without looking into the story behind the making of the film and the way it was promoted. The timing of the film is very significant as it comes at the start of the year when India is heading for the next general election in the summer of 2019. Since the film is a powerful medium to reach voters, those in power do not want to leave an opportunity to get maximum support in the name of Hindu nationalism.
 
It is not a coincidence that Thackeray was released shortly after the release of two other controversial movies with a potential to help BJP in its poll prospects. The Accidental Prime Minister and Uri: The Surgical Strike were released on January 11. While the first one takes a dig at Congress, particularly the former Prime Minister Manmohan Singh as a “weak prime minister”, the latter is based on an anti-Pakistan military operation by the Indian army. The second one actually shows the current Prime Minister Narendra Modi look alike as an effective Prime Minister who knows how to deal with a hostile neighbouring country.
 
While one can understand that Siddiqui is a versatile actor and is free to play any role to earn his livelihood, but he had openly stated that he feels fortunate to have been picked for this role and chose to remain silent on his legacy of hate.
 
If this wasn’t enough, Amitabh Bachchan – a legend of Bollywood also showered praises on the film.
 
It’s a shame that the movie on a man who openly challenged democracy and the Indian constitution was released a day before the Republic Day of India on January 26, as it coincided with his birth anniversary. 
 
By promoting enmities between different communities, regional and religious chauvinism, he was directly defying the Indian constitution that guarantees religious freedom and diversity. The Censor Board that often tries to create too many hurdles for filmmakers seemed to have shown great leniency to Thackeray that tries to rationalise bigotry and hate when the world is grappling with increasing populism.
 
This is in sharp contrast to what the Indian establishment has done with the films that tried to glorify minority religious extremists in the past. A case in point is Dharam Yudh Morcha – a Punjabi movie based on the Sikh agitation for extra powers to the state of Punjab and several concessions to the minority community was banned in 2016.
 
The film glorified Jarnail Singh Bhindranwale – a fundamentalist Sikh preacher who frequently used similar harsh language as Thackeray against non-Sikhs, particularly the Hindus. He was also fighting for regional autonomy for Punjab and had a big following among the Sikh youth and had many supporters in the Punjab police. He too was upset with the mistreatment of the Sikhs by the government that was bent upon scapegoating the community to polarize Hindu majority. Much like Thackeray, he also defied democracy and believed in violence as a justifiable means to get justice. He too ran a parallel government until he died fighting against the Indian army in 1984.
 
Even as there were many similarities between the campaign of Thackeray and Bhindranwale, the response of the Indian state was very different. Whereas Bhindranwale was killed and continues to be seen as an enemy of the state, Thackeray was co-opted by the Indian state through electoral politics and was given a state honour after he passed away in 2012.
 
The difference in reception of the two films, therefore, isn’t surprising and only reinforces the general belief that there has always been two set of rules in India: one for the majority and another one for minorities. If a filmmaker can be allowed to contextualize the chauvinism of Thackeray then this freedom should also be given to others, or else Indian establishment should acknowledge that it is really an exclusionist Hindu state under the garb of secularism.
 

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Thackeray, a bilingual film, starring Nawazzudin Siddiqui as lead, directed by Abhijit Panse and written by Shiv Sena politician Sanjay Raut released two trailers (Hindi and Marathi) on Tuesday. The film is a biographical drama based on the life of late politician Bal Thackeray, Founder and Chief of Shiv Sena, an ethnocentric party based in Western Maharashtra. The film is scheduled for release on 25 January 2019, the 93rd birthday of Bal Thackeray, only three months away from the Lok Sabha elections of 2019.

From the cover image to design to content, the differential presentation of the Marathi and Hindi trailers implies two different sets of viewers separated by linguistic, temporal and regional locations.

The Marathi trailer positions the film as the story of a young Thackeray, who wronged by the injustices of his current circumstances determines to start a movement to safeguard the interests of the common man. It features caustic dialogues of unabashed nativist politics, which defined the foundational phase of the Shiv Sena in the late 1960s. The Hindi trailer, intended for the North Indian audience is replete with images of Saffron in every frame in the form of flags, banners, garments and so on; focusing on the rightist and militant phase of the late 1980s-early 1990s when Thackeray had already established himself and his party, Shiv Sena, locally and was harbouring national level aspirations. The trailer propagates Hindutva-nationalism which was the stance adopted by the party in its second phase, after which it had extended alliances with the BJP.

The Marathi Trailer opens with street shots* of Mumbai with the police sirens blowing up, augmented by a warning that Maharashtra was not for the outsiders or the ordinary; it was a land of the tiger, and anyone who dared to mess with the tiger would have to face grave consequences. It adds that History had borne testament to that and the future would also stand to witness it. This is followed by big bold attributions such as ‘Ideal’, ‘Revolutionary’, ‘Activist’, ‘Fighter’, ‘Leader’ flashing across the screen. The saffron ink glaring on the stark black background foreshadows the bleakness of life in the times of saffron.

Nativism is a philosophy that is specifically anti-migrant. The mobilization of anti-migrant sentiment may rely on ethnic, linguistic, or religious loyalties, but Nativism by itself can also be conceptually and empirically differentiated from the majority ethnic nationalism(which was the stand adopted by the Sena in its second phase). In Bombay, nativist sentiment found explicit political expression in the Shiv Sena which was found in 1996 to secure the interest of the “sons of the soil.” Bal Thackeray premised the ‘movement’ on civic rather than religious lines. One of the very first scenes of the Marathi trailer showed a Muslim family sitting in the intimate, and domestic space of Bal Thackeray’s residence, possibly there for grievance redressal, is eliminated entirely in the Hindi trailer. One whole minute of the trailer, which is half of its total duration, follows a young Thackeray walking on the streets of Bombay, observing the landscape of the markets, and navigating through workspaces with resentment and a sense of alienation on billboards in Tamil, Malayalam and English. He is shown being pushed and shoved by ‘outsiders’ (a ‘son of the soil’ was anyone whose mother tongue was Marathi, or one who had lived in Maharashtra or Bombay for ten or fifteen years, or one who identified with the “joys and sorrows” of Maharashtra¹ depending upon the Sena’s changing perceptions of political expediency). All these shots are loaded with audio and visual material fulfilling colossal roles. The images of a Bombay past is meant to evoke nostalgia in the heart of the ‘native’ but the sharp political commentary constantly running in the background is there to instil in him the lessons of ‘history’ as Bala Saheb wrote them. Moments later, we see an angry Bal Thackeray addressing a meeting of party activists at Amar Hind Mandal.

“[How] these salé ‘andu gundu’ South Indians come together! How they [help] make each other big in life! They bring people from their hometowns even to wash the dishes at [their street side] idli carts. But not anymore. Now “uthao lungi, bajao pungi!” he says in what is supposed to be a rousing speech ².

Social media was quick to call out the xenophobia in these comments. Taking to Twitter, actor Siddharth termed the controversial dialogues ‘hate speech’ against south Indians: 

 
In the first years of the movement’s existence, party speeches and writings were devoted largely to the local-outsider issue. In the weekly Marathi magazine, Marmik, edited by Bal Thackeray, lists of offices, businesses and institutions, and occupations showing Maharashtrians to be a minority were printed and circulated. Protests were launched in particular against South Indian migrants who, it was claimed, had monopolized secretarial and clerical jobs in Bombay. In 1967, the Shiv Sena entered the political arena by helping Congress to defeat Krishna Menon, a South Indian by birth. In 1968, the Sena contested on its own, winning 42 out of 140 seats in the municipal election³.

While the narrative of “anti-nationalism” only enters the Marathi trailer towards the end, the majority of time is spent establishing a machismo on screen. One that is of not just any masculinist identity but a high-pitched masculine Maratha patriotism. Nawaz’s concluding dialogues on the colour of blood et all allude to the early years of Marmik, before the idea of Shiv Sena had been conceived and before there was any mention of “outsiders” or “local” people, articles on the dangers of “Lalbhai” (Red brothers) and the alleged infiltrators from Pakistan were frequent inclusions⁴. Communists had seemed to them a real problem.

In sharp contrast, the Hindi Trailer, specially prepared to satisfy the carnage tendencies of the north Indian right-wing sympathisers speaks to them quite literally and symbolically in a language that they understand. It opens with scenes of a riot in the city, with wailing children and terrified mothers. The narrative voice declares that there is only one man who can bring an end to this violence and peace to Bombay and shots of Thackeray’s back, men chasing his cars, follow as though welcoming a Saviour of the people. Unlike the Marathi trailer, textual interventions are not deemed as necessary to establish this point, because the North of India is too familiar with a one-man-army legend as promulgated by the BJP PM candidate of 2014. The narrative progresses rapidly and in an unrestrained manner much like LK Advani’s Ram Rath Yatra of ‘90, and wastes no time establishing Bal Thackeray as a leader of the common man, possessing strong and rather militant ideas of justice. This image and imagination of the rise of a common man, who comes from within the people and fights for the people, is one that was capitalised by Narendra Modi all through his campaigns and continues even his post-election speeches. Intended to challenge the alleged aristocratic leadership of the Congress, which only serves the interests of the elites is a narrative that will immediately strike a chord with his Hindi speaking voters. Though ostensibly it enables autonomy and responsibility in the public or the collective, what it actually proliferates is what the social media calls as ‘mobocracy’.

Image Courtesy: Zeitgeist Films

In Chaitanye Tamhane’s acclaimed film, Court(2014), there is a sequence where the public prosecutor played by Geetanjali Kulkarni is enjoying a day out with her family. The parents and children indulge in several recreational activities, like eating out, visiting parks and zoos and so on, much like a regular middle-class household. They also go to see a Marathi play at one of the local theatres (The wall beside the stairs that lead up to the auditorium are lined by photos of Maratha heroes from history). The play is a comedy about a Marathi girl falling in love with a North Indian boy (not innocently named Prem, who enters the stage singing, Le Jayenge, Lejayenge UP wale dulhaniya le jayenge) and having a hard time convincing her father to let her marry him. To convince the father, the girl makes up a bunch of lies about his real identity, but the father is too worldly wise to be fooled. He goes pointing faults in the boy beginning and exposing his inadequacies but the seemingly private domestic issue suddenly turns into a commentary on nativism. The father grabs his old servant and the boy by their hand and makes them stand one on each side, so now all three men stand to face the stage. He shouts at them, “You immigrants, first you steal our jobs, then our land and now want to steal our daughters as well?” and kicks them out of his house. Then the tilak bearing man, begins his monologue, directly addressing the audience, “They mistake our grace for weakness. But if pushed, this Marathi Manus(man) can easily show them who is the boss in this city.” He is received with thundering applause and cheers and whistles. The scene in the (Hindi trailer) of Thackeray, where the poster (and implied screening) of a Hindi film is taken down and replaced by a Marathi film, as Thackeray declares, “Ab yeh sab yahan nahin chalega. Pehla haq yahan ke Marathi logon ka hi hai. (It can’t go on like this. From now on its, Marathas first,” echoes this sentiment.

The Hindi Trailer has an additional dialogue where Thackeray is speaking with two cricketers regarding their appeal for an Indo-Pak series, which in their opinion would promote peaceful relations among the nations. This alludes to the incident when a few party workers even dug up the pitch in Wankhede to prevent an Indo-Pak test series in 1991. Thackeray responds with the jingoism that every right-wing North Indian loves – that he could not betray the martyred sons of the forces. In doing so, he echoes the same resurgent nationalist sentiment of the deployed by the BJP in their contemporary politics.

Next, we reach the pinnacle of the far-right imperial motives with the incident of the demolition of the Babri Masjid. The Srikrishna Commission Report that came out in 1998, five years after the riots took place, underlined the Shiv Sena’s malevolent role in the communal riots in Mumbai in December 1992-January 1993, and pointed to the contribution of the BJP in the build-up to the violence. The report determined that the riots were the result of a deliberate and systematic effort to incite violence against Muslims and singled out Shiv Sena leader Bal Thackeray and Chief Minister Manohar Joshi as responsible. The Sena-Bharatiya Janata Party Government in Maharashtra had rejected the core of the report, on grounds of being “anti-Hindu, pro-Muslim and biased”. Thackeray had even gone on to accuse Justice Srikrishna, an eminent and respected sitting Judge of the Bombay High Court, of bias⁵. LK Advani’s speeches during the Rath yatra where he overruled the Court’s warnings over a public idea of ‘justice’ was along the same lines.

Image Courtesy: The Wire

This insolence glorified as heroism, of running a parallel government and wielding more power than the leaders of state served as the core of the Shiv Sena Chief’s governance model. Founded upon absolute and essentialist ideas of justice which had become corrupted by systems of power, Thackeray saw himself as a revisionary who would reclaim it for his people. The dialogue, “Aap mujhe judge karne wale kaun hote hain? Main sirf ek adaalat ko manta hun, aur woh hai, Janta Ki Adaalat”(Who are you to judge me? I do not believe in your institutional notions of justice, I only believe in the verdicts of the common man.) – were the swansongs of the Shiv Sena, and swooned mass voters.

Deriving its name from Shivaji Bhonsle, the seventeenth-century founder of the Maratha empire who, among his many deeds, is famous for his defence of the Maratha territory against the incursions of the Moguls from the North, the Shiv Sena calls itself an “army of Shiva”. In the past few years, images of PM Modi paying homage to the statue of the 17^th century Maratha king, have resurfaced, thus, pointing to a long-strategized move ahead of the elections to secure votes of the lakhs of followers of Thackeray, particularly in Mumbai and Pune. Anand Patwardhardhan’s latest film, Vivek(Reason) (2018), raised questions on these convenient ploys of political parties, competing for claims on Shivaji. In a comic yet scathing scene, activist and writer Govind Pansare makes a speech on stage, addressing a meeting where he draws from history books to ask, “Shivaji never called himself a protector of either cows or Brahmins? So, who put the tag? Surely, must have been one of them, but if it weren’t the cow, then?”

Yet, the question that disturbs me the most is what credentials do I attribute to Nawazzuddin Siddique who played the titular character in the Nandita Das directed biographical drama Manto, and now undoes the entire legacy of what Sadat Hassan Manto stood for by playing someone like Bal Thackeray in a film releasing not even six months apart?

Here Nawazzuddin goes gaga over the chauvinism he has inherited simply by getting into Bal Thackeray’s shoes. He adds that he has now become fearless(like the leader), “Itna assar mujh pe aa gaya hai ki main abhi darrta nahin hun.”

The teaser launch event of the film was performed by none other than the legend-opportunist of the millennium, Amitabh Bachchan, who sung encomiums about his intimate relationship with the deceased founder of Shiv Sena who he revered as a father figure. He even implored the producer to not stop at one film, but make ten films so people could really get to know the many facets of his personality. One might recall that his character in Ram Gopal Varma’s Sarkar, a remake of Godfather, was a problematic glorification of Bal Thackeray’s life. In the same event, Nawaz had said that to play such a character was an actor’s dream, “Duniya ka koi bhi actor karna chahega!” This apolitical distancing of the art from the artist or of art from reality, is a long cloak of hypocrisy worn with pride by mainstream Hindi cinema, because as the January roster of Hindi films go with Uri, and The Accidental Prime Minister all lined up, these pretensions are soon falling off.

 1. F. Katzenstein, Mary. “Origins of Nativism: The Emergence of Shiv Sena in Bombay”. Asian Survey, Vol. 13, No. 4 (Apr. 1973), pp. 386-399. University of California Press.
 2. ‘Hate speech’ against south Indians in Thackeray biopic trailer, actor Siddharth objects
 3. F. Katzenstein, Mary. “Origins of Nativism: The Emergence of Shiv Sena in Bombay”. Asian Survey, Vol. 13, No. 4 (Apr. 1973), pp. 386-399. University of California Press.
 4. Ibid.
 5. R. Padmanabhan. “The Shiv Sena Indicted”. Frontline. Vol. 15: No. 17: August 15 – 28, 1998. The Hindu.

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Image: bhindibazaar.asia

On Friday, 24 years after the Mumbai bomb blasts of 1993, a special court convicted Abu Salem, Mustafa Dossa, Firoz Khan, Tahir Merchant and Riyaz Siddiqui for the serial explosions that killed 257 people. Another accused man, Abdul Qayyum, was acquitted of all charges.

Immediately after the blasts, the state government set up a special court under the Terrorist and Disruptive Activities (Prevention) Act to hold trials in the blast cases. So far, the TADA court has convicted 106 people for their involvement in carrying out the bomb blasts. Yakub Memon, one of the convicts, was hanged in July 2015.

The 12 blasts rippled down the spine of Mumbai on the afternoon of March 12, 1993. Orchestrated by underworld don Dawood Ibrahim, the blasts were an act of revenge against the communal riots that swept through Mumbai in December 1992 and January 1993 after the demolition of the Babri Masjid in Ayodhya on December 6, 1992. At least 900 people were killed in the riots and more than 2,000 were injured – the majority of them Muslims.

However, the state government’s response to the communal riots was significantly different.
 

The Srikrishna Commission dilemma

After the riots of December 1992 and January 1993, the state government set up a Commission of Inquiry under Justice BN Srikrishna. The Commission spent more than five years investigating the events of the riots, and published a comprehensive report that proved damning for the Shiv Sena, the nativist party that was elected to the Maharashtra government in 1995.

The Srikrishna Commission report indicted Shiv Sena chief Bal Thackeray, other party leaders as well as the party mouthpiece Saamna for playing a major role in inciting communal passions and triggering Hindu attacks on Muslims during the riots. It described Thakeray’s role as that of a “veteran General” who “commanded his loyal Shiv Sainiks to retaliate by organised attacks against Muslims”.

But even after conducting exhaustive investigations – much like a court of law – the Srikrishna Commission did not have the power convict any of the alleged perpetrators named in its report. Under the Commissions of Inquiry Act, an inquiry cannot be considered a court of law. Unsurprisingly, state governments appoint such commissions whenever they have no will to actually bring justice to crimes.

By constituting it as a commission of inquiry, the state government restricted the Commission’s powers to merely making recommendations for prosecution. Its recommendations were then taken up by the police for further investigation.

The recommendations in the Srikrishna Commission report were rejected outright by the Shiv Sena government, and over the years, successive state governments too did not act upon the recommendations.
 

The fallout

So far, only three people have been convicted for their involvement in the riots, all on relatively minor charges like hate speech and inciting violence. No one has been convicted for the serious charges of murder, rape or arson, not even the many assailants named in the Commission’s report based on witness testimonies. In the majority of cases, the police simply chose to close the investigations.

Over the years, several of the police personnel indicted in the report for their complicity in the violence went on to get promotions.

One of the three convicts was former Shiv Sena MP Madhukar Sarpotdar, who was found guilty in 2008 of carrying weapons during the riots. Sarpotdar died in 2010 without ever serving his jail sentence, and today, he has a park in suburban Mumbai named after him.

Shiv Sena chief Bal Thackeray, whose recorded speeches from 1992 openly incited violence against Muslims, was arrested briefly, but the court eventually dismissed the charges against him by saying the statute of limitations had expired. When Thackeray died in 2012, he was given a state funeral.

This article was first published on Scroll.in

 

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Soldiers of the Indian Army patrol the area around the Golden Temple during Operation Blue Star | BCCL

This month marks thirty three years of the death of Jarnail Singh Bhindranwale – a fiery Sikh preacher who was accused by the Indian state of being involved in terrorist activities.

He died fighting the Indian army at the Golden Temple Complex, the holiest Sikh shrine of the Sikhs that had been turned into a battlefield in June 1984. The army assault was ordered by the then Prime Minister Indira Gandhi to flush out the place of worship from the armed militants who had stockpiled weapons to carry out an armed insurgency in Punjab. They were seeking special rights for the minority Sikh community and their state of Punjab.

The peaceful agitation for these rights was repeatedly snubbed by the Congress government in New Delhi resulting in the emergence of Bhindranwale.His oratory skills, an uncompromising nature and an ability to convince the youth to take to arms to fight back against injustice made him popular in Punjab. Thanks to the indifference of the Indian establishment, the Sikh youth felt alienated from the mainstream. He encouraged young men to keep arms and resist repression. His followers indulged in political killings and other violent activities at his command.

As a result of his growing influence, the mainstream Sikh political party of the state, Shiromani Akali Dal started wooing him and let him use the Golden Temple Complex as his refuge. Some of his speeches revolved around the emotive subject of how the Indian state treated the Sikh community as “second class citizens”, and were inflammatory/inciteful against the Hindus for whom he sometimes, even used offensive language.

By the month of June 1984, Indira Gandhi decided to end Sikh militancy and ordered an infamous Operation Bluestar that resulted into the deaths of many innocent pilgrims and devastation of the buildings inside the shrine. Bhindranwale, who died fighting in the battle, became a “martyr” for many Sikhs while the mainstream media and political parties continue to portray him as a political extremist.

Justifying the military assault the government of India dubbed Bhindranwale and his followers as separatists even though they had never officially demanded a separate Sikh state. The Indian government went to the extent of accusing them of being aided and abetted by foreign powers to disintegrate the country.

The Sikh community all over India felt humiliated by the army operation and there were angry protests all over the world. On October 31, 1984 Indira Gandhi was assassinated by her Sikh bodyguards following which anti Sikh pogrom was organized in different parts of the country. The members of the so called secular Congress party of the slain leader were seen instigating the mobs targeting innocent Sikhs. The Indian army that was rushed to deal with a handful of Sikh militants during Operation Bluestar was nowhere to be seen when the Sikh civilians were crying for help in Delhi.   These incidents helped Indira Gandhi’s son Rajiv Gandhi to muster a brute majority in the general election that followed the murder of his mother giving credence to the belief that the army operation was aimed at winning election by “teaching Sikhs a lesson”.

Now fast forward to year 2012, when a controversial Hindu supremacist leader Bal Thackrey passed away. He was the founder of Shiv Sena – a Hindu fanatical organization that not only wants to turn India into Hindu state but also believes in Maharashtrian nationalism.  

Much like Bhindranwale, Thackrey was also popular among the Hindu youth of Maharashtra. Unlike Bhindranwale though, he saw that Hindu majority in India as being deceived by the “secularist Indian state” that was “appeasing” the minority communities. It opposed any affirmative action that was needed to uplift the minorities and the oppressed groups. Muslims were frequently targeted by the Shiv Sena that also terrorised people from outside Maharashtra, South Indians and Gujaratis.

Thackeray’s calls for forming death squads to eliminate Muslims and his repeated involvement in anti Muslim violence in Bombay (1992-1993) were no less grave than the hate crimes for which Bhindranwale and his community were punished.  They have been well documented by the Justice B.N. Srikrsihna Commission Report that elaborately investigated the post Babri Masjid-demoltion violence of 1992-1993.

Shiv Sena became popular enough during 1980s the time period that saw Bhindranwale emerging as an undisputed Sikh militant figure. Popular Conspiracy theories suggest that both the men were created by the Congress for short term political gains. If Bhindranwale benefitted Congress in Punjab by weakening the Akali Dal, Thackeray helped the Congress in Maharashtra by weakening the communist movement which had a strong influence over the trade union in the state.

However, the state response to both the extremes remained conspicuously different. After all Bhindranwale got into a direct conflict with the state, while Thackeray got co-opted into, or by mainstream politics.

In the years that followed, Shiv Sena became a powerful political force that had representatives not only in the Maharashtra state assembly but also in the central governments led by the Hindu supremacist (nationalist) Bhartiya Janata Party (BJP). Nevertheless, Thackeray’s anti minority rhetoric continued unchallenged.

When Thackeray died in 2012, he was not just given a 21 gun salute, but his body was also covered with the Indian national flag. Ironically, it was not the BJP, but the Congress party that was in power in both the Centre and the state of Maharashtra when this happened. If this was not enough, a condolence motion on Thackeray’s death was also passed in the house. This from a state that has never apologised for the Operation Bluestar – a blunder that has led to more violence in Punjab until mid 1990s and left behind a bitter and humiliated a minority community.  

The Indian state in spite of its commitment towards secularism has bent itself backwards to please the supporters of Thackeray. Agree with his tactics or not Bhindranwale was punished with the brute use of state power for representing minority extremism, whereas Thackeray was accepted as a national figure despite his bigoted narrative as he suited the interest of the ‘Hindu majority’.

Even after their deaths the two figures are treated and seen differently. Any attempt to celebrate Bhindranwale’s birth or the death anniversaries by the Sikh activists is seen as seditious, whereas Thackeray’s political lineage has been anointed with ‘holiness’. This example shows up the Indian brand of democracy negatively, with a ruthless and heartless majoritarian face, not an inclusive model that embraces all, especially those at the receiving end.

On the occasion of 33^rd anniversary of Operation Bluestar, the Congress must take responsibility for setting a precedent for such a model of democracy, compromising when it was in firm political control, with the forces of bigotry and giving the BJP a space to grow and acquire the centre stage under men like Narendra Modi – a controversial Prime Minister who is known for not just his anti Muslim governance in the past but a man who owes allegiance to the supremacist and anti-Constitutional ideology of the Rashtriya Swayamsevak Sangh (RSS) having been politically bred within its ranks.

(The writer is a senior journalist with radio in Canada)

(The views expressed here are the author's personal views, and do not necessarily represent the views of Sabrangindia.)

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The post How India Deals with Two Extremes: The Case of Bhindranwale and Bal Thackeray appeared first on SabrangIndia.

On November 19, 2012, the day after Bal Thackeray's funeral, Shaheen Dhada and Renu Srinivasan from Palghar were arrested for questioning the state-wide bandh in a Facebook post. The arrests sparked nationwide outrage, with the National Human Rights Commission (NHRC) even ordering the state to pay a compensation of Rs 50,000 each to both girls. After hearing the state's belated response justifying the arrests, the NHRC has now had a change of heart and concluded that the girls need not be compensated. The young women have however stated that they would continue to fight for their rights.

After Thackeray's death on November 17, 2012, the Sena called a state-wide bandh the next day, the day of the funeral. Questioning the bandh, Shaheen had posted on Facebook, “With all respect, everyday, thousands of people die, but still the world moves on. Just due to one politician died a natural death, everyone just goes bonkers… Respect is earned, given, and definitely not forced. Today Mumbai shuts down due to fear, not due to respect (sic).“

In its long-delayed reply to the NHRC, the state said that the two girls “had to be arrested keeping in view the tense situation“ and claimed that “all the norms and directions of the Supreme Court were observed at the time of arrest“.The state also contended that the action of the police was “justifiable for the situation“ and also for “the protection of both the girls“.

 While Dhada had written the post, Srinivasan had merely `liked' it. A Sena leader filed a complaint against the two, while party supporters vandalised a clinic run by Dhada's uncle in Palghar. The two were booked under section 66A of the IT Act (sending offensive messages through a computer or a communication device) along with other sections of IPC for `causing communal disharmony'. In 2015, the Supreme Court held Section 66A `unconstitutional'.

Their arrest sparked nationwide protests and drew into focus the misuse of Section 66A of the IT Act. Due to the expression of public outrage, the police were forced to drop charges against the two.

On November 4, 2013, a year after the incident, the NHRC directed the Government of Maharashtra to pay Rs 50,000 each to Dhada and Srinivasan for violation of their human rights. When the state refused to do so, NHRC released a scathing press release on July 15, 2014 titled “Pay Rs 50,000 each to two girls or face coercive process in Facebook comments case.” Maharashtra had a change in government in October 2014.

 The state finally responded to the order only last year, where it claimed that an enquiry into the incident was conducted by a police inspector of Palghar police station. Requesting the Commission to drop the proceedings, the state said, “During the enquiry, both the girls along with other witnesses were examined. Keeping in view the tense situation, the girls had to be arrested… The action of police was justifiable for the situation and also for the protection of both the girls. Therefore, the case is not fit for any compensation.”

When the Mumbai Mirror contacted Dhada, she said, “I was not expecting such an order but I intend to fight for my rights.“ She said freedom of speech is the most important thing in a country like ours and needs to be upheld, adding, “What happened with me was a nightmare.“
 

The post M’tra Govt Opposes NHRC Order Granting Compensation to Palghar Girls arrested in 2012 for FB Post, NHRC Concedes: Mumbai Mirror appeared first on SabrangIndia.

Last week I visited about 15 villages and towns of rural Srinagar, Pulwama, Anantnag and Baramulla districts. The two–day visits were aimed at meeting the Kashmiri Pandits living in far–flung areas and gathering first hand information about their local situation. Accompanying me was a young Kashmiri Pandit in his early thirties whose outlook regarding Kashmir and the world was very refreshing. He kept saying that men who had narrow visions have created the problems in Kashmir. I learnt a lot about the views of his generation living in Kashmir and how deeply rooted they feel in the soil. Listening to him was both a challenging and a refreshing experience.

After the Nadimarg massacre, uncertainty has gripped the Pandit community, especially women. People complained that the government was yet to take any concrete steps in respect of their demands. Those we met told us that the earlier massacres had not frightened them so much but the brutality displayed in the Nadimarg killings has shaken them. They are asking questions about their future and trying to decide what they should do next.

The Hindu Welfare Society of Kashmir had organised a meeting in Srinagar on Sunday, May 4. Pandits from all over the valley were invited. They wanted to take a collective decision about their future rather than each family deciding on its own. Among the issues discussed at the Sunday meeting in Srinagar were –

• To stay or to migrate?
• Resettlement of families in clusters where security could be better managed.
• Economic and employment security.

Some young men were very emotional when they told me, "If we are forced to leave, we would not go to Delhi or Jammu or Mumbai. India has done very little to safeguard us and we are very disappointed. We would ask for refugee status in one of the foreign countries and migrate there."

Many of those we met were present at Nadimarg for the funeral of the victims. I give below the account of what they told me about Nadimarg. About two years ago, some of the Pandits had informed the authorities about the particular belt in which Nadimarg lies. A large number of Pandit families live in isolated villages in that belt and are very vulnerable. The village head of Nadimarg, Avtar Krishen and his wife had seen some people moving around in the village two nights before the massacre. When the villagers got suspicious, two of them, Deep Kumar and Chandji, went to the deputy commissioner and asked for his help. He was callous enough to ask for a written complaint.

"You have lived here for 13 years and nothing has happened. What can happen now?" he asked them. This has been quoted in several newspapers. Some journalists in Srinagar told me that they heard some of the survivors relate this to the DC concerned in the presence of home minister, LK Advani. There are conflicting versions about which DC the villagers actually met and who made the above statement. Some say that these people also went to the deputy commissioner of Pulwama who has since been transferred. (As all the Nadimarg people have now left, it was not possible to verify the facts with them.) Nadimarg, however, lies in two districts and the Pandit hamlet is in Anantnag district. Why, then, was the Pulwama DC transferred?

The villagers had also met the DIG. On the day of the massacre the SHO visited the village and told the policemen posted there to be alert. Instructions were given for a signal to be sent so that help could be rushed in. Twenty–five policemen were supposed to be posted as security for the Nadimarg hamlet. On the fateful night just nine were on duty and they did nothing.

A young man called Ramesh who managed to escape the killers ran several kilometres to seek help from the Zainpora police station. He was at the police station within 30 minutes of the intruders entering the village. At the police station he was asked to stay put. In The Indian Express of March 30, SSP Pulwama, Vipul Kumar, is quoted as saying, "I received the information around 12.30–12.35 a.m. and alerted all the forces including the camp of 1 Rashtriya Rifles that lies a few km from Nadimarg. The first police team arrived in the village at 3.30 a.m. from Shopian. The Zainpora police station doesn’t have enough strength to react to such a carnage, so we sent our people from Shopian."

A senior army officer says the army does take some time to react. The army troops arrived in the village at the same time as the police. Kashmiris want to know: why this delay?

“Where is this army of one lakh that Bal Thackeray talks about? If he or Togadia really have courage let them come and stay with us. I would like to meet them and have a public debate in front of the media. I do not like their politics.”

Some have alleged that for three days — Friday, Saturday, and Sunday — the militants lived in the hamlet with the policemen. They even ate there and watched an India–Pakistan cricket match. At night the local policemen on duty went and knocked on the doors of people’s houses and told them to come out because the army had come and there was a crackdown. People came out because of this. They were asked to sit in a group. Some of the survivors say that the killers were clad in army fatigues and also wore helmets and bulletproof jackets.

It is alleged that a group photo was taken of the people who only a few minutes later were to be sprayed with bullets. Many people were shot in the face, faces that were blown apart completely. The bodies were badly mutilated. Some of the women’s ears were cut off for the gold earrings they wore. The houses, too, were looted, and the culprits knew exactly which box or cupboard to open. It is also alleged that three of the killers were present amongst the hundreds of people who had turned up for the funeral in Nadimarg.

A member of the Hindu Welfare Society had to request the authorities to bandage the faces of the victims as they were far too disfigured. The member concerned had himself put Gangajal on the lips of every victim and put tikka on their foreheads before the last rites were performed. The carnage has left a deep scar, yet he has maintained his objectivity. The members of the Hindu Welfare Society had successfully thwarted attempts by some people from Jammu who wanted to take the bodies to Jammu for cremation.

Nadimarg has left far too many questions unanswered. The Kashmiris, Pandits as well as Muslims, want answers to the following questions:

• Despite a warning given by the villagers three days earlier, why did law enforcement and civil administration fail to evaluate the imminent danger to Nadimarg?
• Does it not mean complete intelligence failure?
• Even on the night of the massacre, the police and the security agencies took almost three hours to swing into action. Is this the response time to be expected of them even after an alarm has been sounded?
• The allegation by some of the villagers that the militants had camped out in the village for three days prior to the massacre is also alarming. How is it possible that the SHO or other higher-ups were unaware of what their colleagues were up to in Nadimarg?

A group of concerned citizens working for peace have sent a letter to the chief minister stating that they have a right to information regarding what action the government has taken against the erring civil and police officials. The transfer of the deputy commissioner of Pulwama and the arrest of the policemen who are in the interrogation centre do not satisfy them. They would like the process to be transparent and officials to be accountable.

One of the villages I visited was Zainpora, the village to which Ramesh from Nadimarg had rushed for help from the police and to report that intruders had entered the village. This was the largest conclave of Pandits. Over 100 Pandit families used to live in Zainpora till they migrated in the early 1990s. Today there are just five families living there. On seeing a telephone in one home, I asked about it, and was informed that two months earlier the local exchange had been blown up in a blast and had not been repaired since. Some simple issues such as restoring telephone lines in remote areas could help restore some confidence amongst the people.

The topography of Zainpora is similar to Nadimarg. The five Pandit families living there are scattered on a steep slope. Everywhere, I made it a point to talk to the women. I asked them how they felt and what they wanted to do? None of the women wanted to stay on. They found sleeping difficult and suffered from severe palpitation. Given the the location of their homes, I found it difficult to tell them to have courage and stay on there. All I could do was embrace them and hold them close for a long time. How brave they have been and how alone.

In most places the women told me that although they were absolutely terrified, if they had better security and jobs for their children they would never leave. Not a single Pandit I talked to has any faith in the Kashmir police and Nadimarg has made them very jittery. They all demanded security, either from the CRPF or the BSF. When I mentioned this to some of my Muslim friends in Srinagar they countered, "Does anyone trust the local police? If they were efficient and alert would Kashmir have come to such a pass?" Therein lies, I believe, a very critical challenge regarding the Kashmir conflict. The police and the security agencies are far from restoring confidence in the local population.

Today there are 1,765 Pandit families in the valley making up a population of around 8,000. Out of these, between 2–300 families spend six months in the valley and six months outside it. Not all of those who have stayed behind have land from which they make a living. Many of them have been in government jobs and are about to retire or have already retired. Their children, though qualified for certain posts, are having a tough time getting government jobs. According to some of those I met, there has not been a single fresh recruitment in government jobs from among the Kashmiri Pandit community over the past 14 years. There are 500 educated jobless youth in the community. About 150 among them are now over the stipulated age requirement necessary for government jobs.

A large number of those I met during our two day visits are determined to stay on and would not allow the gun to dictate their future. Says Sanjay, "Why should we leave? This is our home and we belong here. Those who ask for a separate homeland for the Kashmiri Pandits are doing a disservice to us. If one were to continue with this logic we would need to accept the demand of the majority community of Kashmir for the right to a separate homeland. Kashmiri Hindus and Muslims must build their future together as they are part of the same heritage."

He is also angry with Togadia and Bal Thackeray. He asked me, "You come from Bombay, where is this army of one lakh that Bal Thackeray talks about? If he or Togadia really have courage let them come and stay with us. I would like to meet them and have a public debate in front of the media. I do not like their politics. It is harmful."

There is also a lot of anger and bitterness against those who migrated in the ’90s. Both sides have their grievances. They have made allegations against one another from time to time. This does not help the cause of the migrant Pandits outside the valley nor those who have chosen to stay on. Those who have stayed in the valley want to know why the media does not ask those who have stayed behind for comments when incidents like Nadimarg happen. They feel unhappy that the Pandit migrants in Delhi or Jammu are asked to speak on behalf of those who live in the valley as if the valley Pandits have no voice. The media and those who work for peace and reconciliation need to understand the complexities in relations among the communities involved.

Some of the Pandits say that when Indian leaders talk about Kashmir as an ‘atut ang (indivisible part) of India’ they say so because of the Kashmiri Pandits still living in Kashmir. If the remaining ones leave the valley, would India have any moral position to hold on to that piece of land? Though we are so vital, for India to hold on to Kashmir, what has India done to safeguard our position? The Pandits in the valley are aware of the regional issues and feel trapped in the larger game. They feel ill–prepared to defend themselves and bitter that the government of India is not doing enough to help them apart from few well–meaning promises that have yet to materialise. One young man angrily told me, "Did the others in desperation not take up the gun? What option do we have before us? If we have to die in any case then it is better that we die fighting rather than be sitting ducks."

He reminded me of the solidarity shown by the Sikh community after the Chittisingpura massacre. Hindus and Indians are hardly bothered about the plight of this small minority. Hundreds of Sikhs from outside Kashmir came to be with the victims as well as others of their community. Aid and relief for the Chittisingpura victim families poured in from all over India and the world. Such gestures are missing for the Nadimarg victims or for the Pandit community who desperately need support from outside, according to the young man.

As the news of the Nadimarg massacre spread, villagers from surrounding areas poured into Nadimarg. They were angry and upset. In downtown Srinagar, hundreds of people poured out on to the streets to protest the carnage the same afternoon. No leader had prompted this demonstration. The protesters came from areas that were traditional strongholds of the Pandits. This was spontaneous. Apart from other national and local politicians, several Hurriyat leaders also went to Nadimarg on hearing the news and stayed until the victims were cremated. A total hartal was observed the next day, called by all the political parties, including Hurriyat.

Two Srinagar women (both Muslim) made a difficult journey to Nadimarg on the third day of the massacre. They pleaded with the survivors, like many others before and after them, not to leave. They were giving expression to the sentiments of scores of Kashmiris, that Kashmir would be incomplete without the Pandits. These women are part of a group that is working for peace. For nearly two years they have been engaged in a dialogue with their counterparts — the Kashmiri Pandit women — in a dialogue of understanding and trust building. It was these interactions that prompted Zubaida and Daisy to make their way to Nadimarg. One has to be in the valley and talk to the general public to realise how deeply the Nadimarg massacre has upset them. Kashmiri Muslims are dismayed and angry that once again peace may elude them.

A small group of Kashmiri Pandits met the Prime Minister and given him a memorandum during his visit to Srinagar in April. The Prime Minister is said to have admitted that many mistakes were made with regard to the Kashmiri Pandit community. Basically,the Pandits are asking for the assurance of physical and economic security, imperative to their survival. Although foolproof security may not be possible for every household, some other arrangements are possible and must be looked at on a priority basis.

Several suggestions regarding this are already before the government. The demand for jobs for the 500 unemployed youth is not impossible to fulfil. Many Kashmiri Muslims have personally told me that they would like the Mufti government to provide jobs for the Kashmiri Pandits just as they are being provided to members of victim families. Unless the government takes quick policy decisions and concrete steps, the trickle that is quietly leaving the valley may well turn into a large exodus before we know it.

As Nadimarg fades from public memory and new events overtake us, let us not forget this tiny minority hanging on to a slender thread in the complex conflict zone that is Kashmir today. As this minority’s future hangs in the balance, it may well decide the larger political future of India.

Archived from Communalism Combat, May 2003 Year 9  No. 87, Special Report 1

The post On the firing line appeared first on SabrangIndia.

For Indians who truly  value tolerance, every  passing day sounds a  death knell. The ground  is slipping swiftly; we are  sinking fast into the  quicksand of brazen manipulation. Such outlets for articulating grievances that still exist are severely proscribed by the rapidity of events and happenings. Institutions for the affirmation of inalienable basic rights are limited by an apathy that is compounded by a piece–meal response to events. 

Courts, the police, the legislature and the executive are all crippled. Either because of a self–inflicted tunnel vision that refuses to recognise the calculated plan or pattern behind the systematic build up of the climate of hate in which violence appears ‘legitimate’, or because of calculated indifference, driven by bias. 

We are all witness to the wilful flouting of the rule of law, daily. As it has been happening since the mid–eighties before their formal grip on political power, and more so since 1998, after the BJP’s rise to power, the fundamental freedom of faith and the identity of Indians who are not Hindu has been a constant target. 

Constant intimidation through verbal barrage and frequent acts of violence against a section of Indians — Muslims and Christians — have come to be accepted as facts of life. Vicious utterances, that go unrestrained and unchallenged by the guardians of law, have accorded them a sinister legitimacy. The statements by the leaders of the BJP/RSS/VHP/Bajrang Dal/SS, inciting hatred and violence and acts of violence themselves, are being highlighted by the mainline media every other day. 

As the cumulative outcome of the carefully cultivated climate of coercion, other basic freedoms — right to life and liberty, of personal security of and the right of association — of thousands of Indians stand severely curtailed. Churches are attacked; copies of the Bible desecrated and burnt. A Christian priest is forced to worship inside a temple; adivasis are ‘re–converted’ amidst much fanfare but told to worship in separate shrines thereafter.

Physical attacks and intimidation of minorities have re–surfaced with a vengeance. Incidents in the past three months alone — between April and June 2000 — have crossed the three dozen mark. Christian religious persons running educational institutions or health centres have been singled out for murder or other forms of mistreatment. In every instance, mob rule and intimidation has overpowered the rule of law, with the local police reduced to wilful impotency. 

Every attack has been preceded by systematic distribution of hate spewing pamphlets (see box 2). Since 1996, media reports have drawn repeated attention to such hate campaigns. But all the vitriol has suspiciously escaped police action under relevant sections of the Indian Penal Code (IPC). Gujarat, and now Uttar Pradesh, are living examples of life for Indians under ‘Hindu rashtra’.

Senior officials in the police, like the DGP of Gujarat, CP Singh, have stated on record that “organisations like the VHP and Bajrang Dal are clearly behind the violence” (see CC, October 1998). Concrete evidence in specific cases points clearly to the moral and ideological backing that the sangh parivar renders to the assailants. But our watchdogs and institutions fail to make the connection or see the pattern.

Four months ago, the newly appointed RSS Sarsanghchalak, KS Sudarshan, declared that an ‘epic war’ was in progress in India between Hindus and ‘anti–Hindu forces’; in Mumbai, Bal Thackeray’s Saamna is once again spitting venom with a vengeance against ‘anti–national’ Muslims (See page 25). And yet, we resist drawing the links. 

What is responsible for this selective amnesia? How is it possible for us to react to rights’ violations in individual cases but turn a blind eye to the bloody and devious design that underlies them?

One fine day, a Bajrang Dal leader, Dharmendra Sharma, sah-sahayojak for the Braj region, makes front page news declaring that Christians are now “bigger enemies” than Muslims. (The Times of India, June 23, 2000). Clarification, if any were needed, that Muslims remain the Bajrang Dal’s and the VHP’s enemies! “Maar peet to kya, hum sab kuch karne ke liye taiyar hain” (“We are prepared to use violence. There is no limit”), said Sharma, leaving no room for any confusion. 

The remark prompted an expression of outrage from India’s attorney general, Soli Sorabjee. He opined that such elements should be put behind bars. The National Human Rights Commission demanded details of attacks on Christians from the central and state governments. But only weeks earlier, the remark of the all–India Bajrang Dal convenor, Dr. Surendra Jain, calling for “a second Quit India movement” to drive away Christian missionaries had passed unnoticed and unchallenged. (The Afternoon Despatch and Courier, May 27, 2000).

Life in Gujarat for a Muslim or a Christian today is a suffocating reminder that he or she no longer enjoys the precious privilege of being regarded as an equal Indian. Muslims residing in ‘cosmopolitan’ localities in Gujarat are forcibly evicted; Muslim children have to compulsory attend school and even give examinations on Id day. Discrimination and bias has insidiously crept into the marketplace of ideas, avenues of livelihood, educational institutions, the administration, the police, the judiciary. All in all, the quality that we used to proudly describe as Indian values is fast eroding. 

What more will it take to force us to recognise the extent of corrosion? Mumbai’s classrooms, at the university level, reflect this public sanction to brazen bias in their own style. A professor advising students on how to write an essay for the All India Open School examination elaborates: “Write about how the British exploited this country. And how before that the Muslim rulers, thanks to their love of the good life, robbed this great wealthy land of all its wealth. Muslims have always loved the good life and it is this greed that has looted our country that used to be a sone ki chidiya (a golden bird). 

There is a clever and calculated plan behind every campaign launched, sustained and developed by the RSS and its faithful followers. In the eighties, the campaign for a glorious temple in the name of Lord Ram at Ayodhya fired 18,000 villages to participate in the shilanyas in 1990, and over 5,00,000 kar sevaks to be witness and participants in the demolition of a mosque in Ayodhya two years later. Clever double entendre accompanied the campaign for a temple at Lord Ram’s legendary birthplace. The justification in the nation–wide effort was through the demonising of Mughal emperor Babar. Muslims in India today, ‘Babar ki aulad’, were crudely told again and again, that they had trampled on all that is decent Indian, read Hindu.

With the campaign for the construction of a Ram mandir at Ayodhya now in the process of being actively revived, the anti–Muslim underpinnings of the campaign are also re–surfacing in subtle and not–so–subtle forms. The Archaeological Survey of India (ASI), nudged by an encouraging human resources development ministry under none less than Murli Manohar Joshi, is busy excavating 46 Indian historical sites, including UNESCO–protected World Heritage sites like Fatehpur Sikri. Objective? To establish that Hindu or Jain temples exist below Mughal (read Muslim), monuments.

There is a brazenness that underlines the physical assaults and intimidation whereby the assailants present themselves as victims acting in self–defence. Of late, the Bajrang Dal has publicly started arms training for its cadre in order to prepare them for ‘defending’ Hindus and Hinduism from the demons being resurrected — Muslims and Christians. The daily violators of law and those who condone verbal assaults, physical intimidation and murder are the first to point to Pakistan’s ISI as the real culprit! Union home minister, Advani also concurs, seeing a foreign hand behind the attacks on Christians. The result: the nitty–gritty facts behind those responsible for the assaults and violence in each of the cases, where culprits inspired by or belonging to the RSS, the Bajrang Dal and the VHP have been identified, are glossed over and the police just do not act. The guilty not only escape the arm of the law but enjoy government protection every time. 

Prime Minister, Atal Behari Vajpayee and his strongman, Union home minister LK Advani, have once more declared that there is “no communal twist to the recent incidents”. The liberal mukhota of the sangh parivar is useful for the saffron bandwagon at ticklish moments like this. 

Vajpayee’s admirers, who simply refuse to believe him capable of legitimising hatred and selective murder, saw his recent bowing before the Pope at the Vatican as a “master stroke”. That the pontiff raised the issue of increasing attacks on Christians at his meeting with the PM and yet again, three days later, is seen as simply a passing hitch in international relations. 

Graham Staines’ murderer, Dara Singh is today a man lionised by the literature emanating from the saffron camp. He proposes to fight the next election. For the moment, the Hindu Jagran Sammukhya, backed by the RSS, is busy distributing thousands of copies of a 16–page booklet Mu Dara Singh Kahuchi (I am Dara Singh speaking) in Manoharpur, Orissa. The booklet focuses on the activities of the Staines’ family and proclaiming that since “Staines was the killer of our culture, so his killing was necessary”. 

The officially–appointed Wadhwa Commission implicated Dara Singh in the triple murder case but despite the evidence of police officers and counsel before the Commission, it exonerated the like BJP, RSS, VHP and BD. An example, yet again, of a resistance to examine the ideological backup that allows a Dara Singh to flourish and grow in popularity.
Vajpayee has been of consistent use to the hate–driven parivar. Eighteen months ago, on New Year’s Day 1999, after visiting the southern district of The Dangs in Gujarat, that had suffered systematic violence against its minuscule resident Christian community (ruining traditional Christmas celebrations), Vajpayee spoke to the national media. Without a single word on the violence and intimidation suffered by Dang Christians, he called for a national debate on conversions! 

Union home minister, LK Advani, used to be the BJP’s most eloquent leader on every issue pertaining to minority–majority relations in the country in the eighties and nineties — before he took an oath swearing allegiance to the secular and democratic tenets of the Indian Constitution. Today, he has mastered the art of keeping a conspicuous silence. He does surface on appropriate occasions only to issue clean character certificates to the Bajrang Dal and the VHP every time their name gets associated with criminal incidents. 

Following the triple murder by burning of Graham Staines and his young sons, Advani was quick to absolve the VHP and Bajrang Dal of any involvement in the crime. He knew these organisations well, he said, adding that they were incapable of criminal acts! It is a well–programmed symphony in operation, being played out by the different organs of the sangh parivar every day. That the Vajpayee–Advani duo is right on top of the political pyramid, ever ready with alibis, helps a great deal. 

That the BJP and its supporters within and outside the sangh parivar rely heavily on Vajpayee’s liberal mask is more than understandable. What is not, however, is the wilful blindness of the secular components of the NDA, leaders such as the TDP’s technocrat, Chandrababu Naidu, the Trinamool Congress’ firebrand, Mamata Banerjee, and the ever–reasonable socialists, George Fernandes and Jaya Jaitly. 

Equally difficult to appreciate is the failure of individuals within other secular political formations to categorically affirm that the basic rights and freedoms of every Indian, regardless of religion, caste, creed or gender is inalienable. (Remember a state minister from the ‘secular’ Nationalist Congress Party (NCP) in Maharashtra, personally welcoming criminals allegedly associated with the Bajrang Dal on their release from the Nasik jail. They were charged with the vandalising a girl’s hostel in April. The deputy chief minister of Maharashtra, Chhagan Bhujbal, later justified the minister’s behaviour).

Most opinion polls conducted to gauge public opinion indicate that only about a quarter of the Indian population backs the BJP and not all the support is for communal reasons. The rest of India, which naturally includes minorities, Dalits and other Hindus within it, remains opposed to Hindutva’s antics.

The hitch lies, however, in the lack of translation of this opposition into organised protest and outrage. The ignominies of rights abuses and oppression of minorities, women and Dalits notwithstanding, there is an innate reluctance to accept, acknowledge and rise in unison against these horrors. One of the reasons is our refusal to abandon the prevalent myth of Indian civilisation as the most ancient, the most non-violent, and the mSost tolerant in the world.

Only the creative explosion of that myth will help rid us of our false cocoon of comfort and galvanise us into articulation of outrage that is long overdue.

Archived from Communalism Combat, July 2000, Year 7  No. 60, Cover Story

The post Blinding Reality appeared first on SabrangIndia.

The Dilli–Lahore goodwill  bus had been cruising  along comfortably — in the right direction if not at the desired speed. The reception which the most important passenger on that peace route — Prime Minister Atal Behari Vajpayee — received in February during his brief journey across the Wagah, and the response the visiting Pakistani cricket team got from spectators in India a little earlier — both when they won (Chennai) and when they lost (New Delhi) — made it evident that the Jamaat–e–Islami and the Bal Thackerays notwithstanding, amity was the prevailing mood on both sides of the divide. Who then is to be blamed for hijacking the peace process to the chilling Kargil heights?

When investigating a murder case, the first thing any crime investigation agency looks for is motive: Who stands to benefit? An analysis of how things have so quickly, and apparently inexplicably, degenerated from friendship talks to a ‘war–like’ situation can similarly benefit from asking the elementary question: Who benefits from the ominous developments on the border?

From the Indian ‘nationalistic’ perspective, Prime Minister Nawaz Sharif is the obvious villain of the piece. Why should Sharif invite Vajpayee to Lahore in February and then up the ante in less than 100 days? The explanation is that the Pakistani Prime Minister, embroiled into an increasing number of difficulties on the domestic front, badly needed a scapegoat to divert public attention. 

In early 1997, Nawaz Sharif was returned to power with a massive mandate. Barely two years later, his popularity is on a nosedive. Economically, Pakistan is in a shambles, forex reserves are down to a mere one billion dollars (as against India’s reserves of over 33 billion) and the Karachi Stock Exchange in an acute state of depression. 

Politically, there is increasing talk within the country today of Pakistan being a “failed state”. Sharif’s only response to the deepening crisis has been to damage or dismantle any institution that could act as a forum for the articulation of censure, dissent or mass discontent. The Pakistani Prime Minister has ensured that a person of his choice heads the army, the courts have virtually been turned into “handmaidens to the executive”, the free press is under constant assault, the country’s independent Human Rights Commission has been ordered to cease publishing its newsletter and a witch–hunt is now being conducted against all “anti–state” non–governmental organisations (NGOs). Not surprisingly, the highly influential Economist published from London has recently advised the World Bank not to bail out Pakistan since, with the institutions of democracy being attacked and undermined one after another, there will be little accountability left in Pakistani society.

In the face of mounting problems and criticism, inside Pakistan and globally, one option before the beleaguered Sharif was to do what U.S. President Bill Clinton, the former U.K. Prime Minister Margaret Thatcher and many other international leaders did to lift their sagging political fortune — raise the bogey of the external enemy, rouse nationalist fervour and rally people behind yourself. Fortuitously for Sharif, with only a caretaker government in charge in neighbouring New Delhi and with snow melting in the Himalayas, the political and natural climate was just right to play the Kashmir card.

In short, the easy answer to whodunnit question is, Nawaz Sharif.
But from the Pakistani ‘nationalistic’ perspective, the blame is to be heaped entirely on India’s door. Faced with a fresh challenge from ‘freedom fighters’, the Indian state has chosen to pretend it is dealing with Pakistani army–backed infiltrators. Besides, with elections round the corner, the BJP hopes to reap in extra votes by raising the Pakistan bogey. 

Until a few weeks ago, indications were that the outcome of the polls due in the next few months will not be very different from the results of the last Lok Sabha elections in held in early 1998. The BJP–led alliance was hoping to score over its main political rival, the Congress, by raising a hue and cry over the fact that the latter’s prime ministerial candidate is a foreigner by origin. However, there are two problems with the ‘foreigner card’: firstly, the result of recent opinion polls indicate that the electorate is not particularly perturbed with Sonia’s Italian origin; secondly, with Sharad Pawar having revolted on the same issue and with other potential constituents of the new Third Front in–the–making — Mulayam Singh Yadav (U.P.), Chandrababu Naidu (Andhra), Karnataka’s chief minister, J. H. Patel, segments of the Left Front — also bent on playing the same card, the BJP and its allies are unsure about how much dividend the ‘foreign card’ will yield. 

But an Italian–born Prime Minister at a time when the country faces a grave threat from across the border? Surely, the ‘nation in danger’ and ‘foreigner as PM’ mix makes for a much more potent cocktail?

Thus, theoretically speaking, irrespective of their present posturing, continued tension on the Kargil front suits the political needs of both Nawaz Sharif and Atal Behari Vajpayee. Factually speaking, the U.S. and the British response to the Kargil crisis, as also reports in The New York Times and The Independent (London), indicate that they agree with India that Pakistan is the guilty party. Besides, India also claims to have conclusive proof, in the form of dead bodies of Pakistani soldiers, that what it is dealing with in the Himalayan heights is not ‘freedom fighters’ from Kashmir but infiltrators from across the border backed with equipment and personnel of the Pakistani armed forces. But nothing debunks the ‘freedom fighters’ thesis more than the fact that after a gap of nearly 10 years, Kashmir is overflowing with tourists from the rest of India. Surely, it is not guns in the hands of the Indian jawans that are keeping the houseboat owners on the Dal Lake from reaching for the tourists’ throats? 
Even if one assumes this to be the facts of the case, there remains a mystery on the Indian side on what is presently being passed off by different analysts and opposition parties as ‘intelligence failure’, ‘lack of co–ordination between the intelligence and the Indian armed forces’, ‘failure of the defence ministry and the Indian government’ to respond with alacrity to the security threat. Should not a more specific clarification be sought on the timing of the action initiated at Kargil, an action that (coincidentally?) suits the caretaker government facing an election better than resting on the laurels of a newly–initiated peace process? A point being made, in private, by several senior retired army personnel would support this contention: Pakistan’s crossing of the LOC in the Kargil heights is nothing new; what is new is the decision of the caretaker government to challenge the intrusion. 

The question, in other words, is: had the Vajpayee government not fallen in April leading to the imperative of fresh elections, would India and Pakistan still be talking peace, never mind the violations 18,000 feet above sea level?

We reproduce in the following pages an article by a senior journalist from Pakistan (See page 13) who argues that the need for an external enemy — India — is written into the very logic of the direction in which the Pakistani state is moving. On the Indian side, what the caretaker government’s game–plan is for now will become clearer as we get closer to the polls. But beyond the immediate, Teesta Setalvad’s article (see page 16) highlights the fact that in the continuing battle between India and Pakistan over Kashmir, the people of Kashmir barely figure in the discourse on either side.     

Archived from Communalism Combat, June 1999, Year 6  No. 54, Cover Story 1

The post A foe in need is a friend indeed appeared first on SabrangIndia.

After the demolition of the Babri Masjid on December 6, 1992, there was unprecedented violence in Bombay against Muslims in early January, 1993. It was rightly believed by responsible citizens who had gone around the city to ascertain what had happened and who were trying to restore communal harmony, that the police not only did not take action against the rioters but in some cases assisted them….

 ….During December 1992/January 1993, Saamna published a number of editorials which prima facie were a clear violation of Sections 153A and 153B of the I.P.C.

The law in England as to the duty of government to enforce the law has been dealt with in Reg. v. Commissioner of Police of the Metropolis Ex p. Blackburn (1968) 2 Q.B. 118. Lord Denning, M.R. observed: “…There are some policy decisions with which, I think, the courts in a case can, if necessary, interfere. Suppose a chief constable was to issue a directive to his men that no person should be prosecuted for stealing less than 100 pounds, I should have thought that the court would countermand it. He would be failing in his duty to enforce the law. After the decision of the House of Lords in Kursall Casino Ltd. v. Crickitt (1966) 1 W.L.R. 960, the commissioner of police announced that "it is the intention of the metropolitan police to enforce the law as it has been intended'…” (Salmon, L.J. and Edward Davies L.J. agreed with Lord Denning, as to the contention that a mandamus should be refused because Mr. Blackburn had an equally effective and convenient remedy,) Salmon, L.J. said: “It seems to me fantastically unrealistic for the police to suggest, as they have done, that their policy decision was unimportant because Mr. Blackburn was free to start private prosecution of his own and fight the gambling empires, possibly up to the House of Lords, single-handed”: ibid. p.145.

Edmund Davies L.J. agreed…observing that “only the most sardonic could regard the launching of a private prosecution….as being equally convenient, beneficial and appropriate and the procedure in fact adopted by this appellant”.

I have cited this decision of a most distinguished master of the Rolls, Lord Denning and his distinguished brother judges to show that no general policy can override the law, and further that the rule of law must be upheld and enforced by the appropriate authority…
In the context of what I have said above, a question arises as to how power conferred on public authorities in connection with the administration of justice is to be exercised. Justice Jaganmohan Reddy for himself and Palekar J. gave the answer in M.N.S. Nair v. P.V. Balkrishnan AIR 1972 SC  496.…. (Referring to section 494 of the Criminal Procedure Code which permits the prosecution to withdraw from the prosecution), Justice Jaganmohan Reddy observed….

 “… It is the duty of the court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the state go unpunished merely because the government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the law, directs the public prosecutor to withdraw from the prosecution and the public prosecutor merely does so at his behest”: ibid. p.499 (emphasis supplied)….

Jaganmohan Reddy J. rightly observed that the delay caused by the accused by repeated revisional applications could not ensure for the benefit of the accused. Since the judgement of the division bench in Shri D'Souza's petition referred to the “delay” which had taken place in hearing the petition, it may be observed that the petitioner, i.e. Shri D’Souza and his co-petitioner were not responsible for the delay. The Criminal Writ Petition was filed speedily in April 1993. The petition was adjourned for the government to communicate to the court whether it had granted permission to prosecute Respondents 3 and 4 in respect of certain articles for which the police had filed complaints in the magistrate's court, and asked for government's sanction. On June 8, 1993 government stated that sanction had been given. On June 14, 1993 the writ petition was admitted with liberty granted to apply to the chief justice for an early date. (Thereafter the delay in the hearing took place because of the court not having given time or the respondents asking for an adjournment).

(Mr. Seervai refers to the fact that an affidavit was filed on behalf of the state to oppose the admission of the petition in April 1993. This affidavit was filed by an under-secretary in the home department, Shri Kumavat, and refers to the fact that the affidavit mentions that the question as to whether prosecutions should be sanctioned in respect of some complaints filed by the police were referred to the law department. This shows that whether or not sanction should be granted raises a question of law and being a question of law it is the law department which gives the necessary advice. Ultimately, sanction was given in those cases because the opinion of the law department was that as a matter of law the articles violated the provisions of section 153A)….

It would be convenient at this place to consider what test is to be applied by a court in considering whether the articles published in a daily newspaper violate the provisions of sections 153A and 154B. Saamna, a daily newspaper had a wide circulation. The petitioners did not complain of one article but of a number of articles on the same theme.

The question whether those articles promoted enmity between Hindus and Muslims on the ground of religion, race and residence etc. has to be determined on how the general readers of those newspaper would understand those articles and not how a court after elaborate analysis and argument by counsel on either side considers to be the effect of those articles.

It should be borne in mind that the articles complained of had been spread over two months and dealt with acute controversies such as the demolition by Hindus of the Babri Masjid. The ordinary reader of Saamna, or of any other daily newspaper is not given to an analysis of articles, parts of which are complained of by a petitioner.

No doubt as a general rule, any article complained of must be read as a whole. But there are situations in which certain passages and their effect of producing enmity between communities are so strong that no context would prevent those passages from inflaming communal enmity between Hindus and Muslims as will appear later. That was the test which the court had to apply in Shri D'souza's petition, and which the court failed to apply….

Before dealing with the passages complained of and the manner in which the division bench dealt with those passages, the stand taken by the government for not taking action to prosecute Shri Bal Thackeray and Shri Raut for publishing the paragraphs set out in Shri D'souza's petition requires consideration.

The Government was in a dilemma. No officer of the government could say that what was stated in Shri Kumavat's affidavit was false, for it was stated by him to be true to the best of his own knowledge. However, the government was determined not to grant sanction to prosecute Shri Bal Thackeray and Shri Raut and the procedure described by Shri Kumavat would have required the home department to process the case and then send the case for the legal opinion of the law and judiciary department.

A department which gave as its opinion that the articles in Saamna which attacked Muslim police officers violated the provisions of sec. 153A would, a fortiori, give it as its own opinion that the nine articles complained of in Shri D'Souza's petition which attacked Muslims and Muslim community generally violated the provisions of section 153A and sanction to prosecute should be given.

The summary dismissal of the petition for special leave against the judgement of the Bombay High Court by Justices Punchi and Jaychandra Reddy can only be described as amazing and subversive of the rule of law.                                               

Government devised the expedient of getting Shri Ulhas V. Manjrekar, deputy secretary to the government of Maharashtra (general administration department) to file an affidavit replying to the petition on merits after it had been admitted, although the question of granting sanction to prosecute persons under section 153A were dealt with by the home department.

Shri Manjrekar stated that he was filing the affidavit “on the basis of concerned files of my department which I have carefully pursued”. Shri Manjrekar appears to have realised that the records of home department on which Shri Kumavat had relied on behalf of government in his affidavit of April 29, 1993 were directly relevant in replying to the petition on merits after the petition has been admitted.

Therefore, he began paragraph two of his affidavit thus: “At the outset I reiterate and Confirm what Shri D.T. Kumavat, Under secretary to the government of Maharashtra, home department, Mantralaya, Bombay has stated in his affidavit dated April 29, 1993". By reiterating and confirming Shri Kumavat’s affidavit at the outset, he incorporated that affidavit in his own affidavit.

In paragraph two of his affidavit, after the first sentence, Shri Kumavat’s affidavit must be set out. When this is done, Shri Manjrekar, without realising it, has shown that the government has acted mala fide when instead of referring the question of sanctioning the prosecution of Shri Thackeray and Shri Raut to the law and judiciary department for its legal opinion, the government decided not to prosecute them for the reasons set out by Shri Manjrekar in his affidavit.

The government was the first respondent to Shri D'Souza's petition, and it's sidetracking the law and judiciary department whose legal opinion was required, before sanction to prosecute under section 153A (and 153B) was given. This gives rise to the inference that if the government did not seek legal opinion, it was because that opinion would have clearly indicated that the passages complained of in Shri D’Souza’s petition violated the provisions of sections 153A and 153B and sanction to prosecute them should be granted.

A part from what I have said in the above paragraph, there is an inherent contradiction in Shri Manjrekar's affidavit, which also shows that the government knew that the passages complained of in Shri D'Souza's petition violated section 153A. Shri Manjrekar states in his affidavit in reply, that “I reiterate that the government of Maharashtra carefully scrutinised the material published by the Marathi daily Saamna in its issue of 2nd, 5th, 8th, 9th and 15th December 1992 and 1st, 5th, 8th, and 9^th January 1993…Prosecution of the editor and printer of the daily has already been sanctioned in 4 cases by four separate orders dated 9th June 1993. The government has taken a decision that the alleged objectionable material may be used as evidence at the time when the four cases in which the prosecution has been sanctioned come up for trial and hearing” (emphasis supplied). The prosecution in the four cases was sanctioned as violating section 153A of the IPC, namely for promoting enmity between Hindus and Muslims. If the 9 passages complained of in Shri D'Souza's petition are to be used as evidence in support of articles which violated section 153A, it must follow that the government realised that these passages violated section 153A and such violation would be further evidence in support of the prosecution in the four cases, namely, that the writings there complained of violate sec. 153A.

  If the 9 passages complained of did not violate the provision of section 153A, they could not be used to support the prosecution – those passages would be irrelevant. This is an admission on the part of the government that these 9 passages violated section 153A and instead of prosecuting Shri Bal Thackeray and Shri Raut in respect of these passages, the government arbitrarily declined to do so.

Shri Manjrekar stated in his affidavit that since “the government has referred the matter to the Press Council of India, it would be advisable to await the decision of the press council” is an attempt to show that the government was not inactive.

 However, first, the Press Council is not the authority to advise the government whether or not to grant sanction to prosecute under the sections 153A or 153B. The proper authority, as Shri Kumavat pointed out in his affidavit, was the law and judiciary department. This is clear from the government's own action in respect of granting its sanction to prosecute Shri Thackeray, Raut and Desai without referring the matter to the Press Council, but after obtaining the legal opinion of the law and judiciary department.

In my opinion, the affidavit of Shri Manjrekar clearly established that the government knew that the nine passages complained of violated the provisions of section 153A but was determined not to prosecute Shri Thackeray and Shri Raut. Since the power to grant sanction is conferred on government, it must be exercised in good faith and in furtherance of the object of the law, namely sections 153A and 153B.

What I have said about Shri Manjrekar's affidavit shows that government acted mala fide and refused to grant sanction although it knew that the nine passages violated section 153A. The division bench has not realised the effect of Shri Kumavat's and Shri Manjrekar's affidavit. On those affidavits it is clear that government acted mala fide in respect of granting sanction to prosecute in respect of the nine passages complained of after impliedly admitting that they violated section 153A, and could be used by the prosecutor in the four prosecutions against Shri Thackeray, Raut and Desai
In my opinion, on the affidavits of Shri Kumavat and Shri Manjrekar, the division bench should have issued a writ of mandamus directing government to grant its sanction to prosecute Shri Bal Thackeray (respondent 3) and Shri Raut (respondent 4) for violating sections 153A and 153B, IPC.
Reverting to the affidavit of Shri Raut in April 1993 purporting to be on behalf of himself and Shri Bal Thackeray, it was stated, "I am filing the affidavit on behalf of both of us “for the limited purpose of opposing the admission” (emphasis supplied). After the petition was admitted, liberty was given to the respondents to file their affidavits in reply to the petition. Neither Shri Thackeray nor Shri Raut has filed any affidavit in reply.

The division bench was under an obligation to issue a writ of mandamus directing government to give its sanction. The side-tracking of the legal department, the referring of the matter to the Press Council of India which was not the body to give legal opinion, the implicit admission (by the Maharashtra government) that these passages violated provisions of section 153A and that they could be used by the prosecutor in the four prosecutions already sanctioned show beyond any doubt that these passages violated the provisions of both sections 153A and 153B and the government mala fide declined to prosecute respondents 3and 4.

The effect of this failure to file an affidavit in reply has not been appreciated by the division bench. By rules of pleading the omission to file affidavits in reply means that the averments in the petition remain un-traversed and must be accepted as correct by Shri Thackeray and Shri Raut.
 In Shri Raut's affidavit of April1993 (para 7) he says:” Without prejudice to the above, I say that none of the editorials, exhibits A to I, attract the prosecution of respondents 3 and 4 as they have exercised their freedom of expression and commented upon current affairs objectively.” This defence was open to them at the hearing of the petition, but I have already shown that the freedom of expression does not justify publishing articles violating the rights of every person to practice, profess and propagate his religion and insults to the religious feelings of communities. Such offences have not been tolerated by the Supreme Court.

It should be noticed that Shri Bal Thackeray and Shri Raut have not stated on oath that the nine passages complained of do not violate the provisions of sections 153A and 153B because they are torn from their context. It is not for anyone to inquire why they have not said so, and it must be assumed that they had good reasons for doing so.

 In fact paragraph 7 of Shri Raut's affidavit supports this assumption, for Shri Raut has justified the nine paragraphs complained of by stating that they do not attract the prosecution of respondents 3 and 4 and the respondents have exercised their freedom of speech and expression and commented upon current affairs objectively. It is the case of respondents 3 and 4 that the freedom of speech and expression confer on them the right to write the passages complained of even if they violate sections 153A and 153B.

 I will deal briefly with the judgement of the division bench in view of what I have said earlier. As the petitioner prayed for a mandamus directing the state government to grant its sanction to prosecute Shri Bal Thackeray and Shri Raut under the provisions of sections 153A and 153B by publishing the said passages complained of, the questions for the court's consideration was whether the government, knowing and believing that the nine passages complained of did violate the provisions, mala fide refused to sanction to prosecute respondents 3 and 4 for articles which violated the two sections of the IPC.

If so, the division bench was under an obligation to issue a writ of mandamus directing government to give its sanction. The sidetracking of the legal department, the referring of the matter to the Press Council of India which was not the body to give legal opinion, the implicit admission that these passages violated provisions of section 153A and that they could be used by the prosecutor in the four prosecutions already sanctioned show beyond any doubt that these passages violated the provisions of both sections 153A and 153B and the government mala fide declined to prosecute respondents 3 and 4.

It is not necessary to deal at length with the elaborate special pleading by which the division bench held that the passages complained of did not violate the provisions of the two sections. I will only deal with one gross instance of the untenable interpretation put on the editorial in Saamna dated December 9, 1992 (page 38 of the judgement, see page 6)

 At page 37 of the judgement, the court 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 11crores 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 dig in the editorial is against Muslims as a whole. If one reads the editorial published on December 9, 1992 as a whole, though 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 emphasize 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 153A and 153B is difficult to imagine.

In the last two paragraphs which are not conspicuous for their clarity in substance, the court said that if sanction was 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.
 The government is prosecuting Shri Thackeray for some articles. The 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 by Justices Punchi and Jaychandra Reddy can only be described as amazing and subversive of the rule of law.

A report of the proceedings appeared in the Indian Express by Teesta Setalvad dated January 14, 1995. The two Supreme Court judges 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 overlooked the fact 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 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” and public interest would be better served by leaving the situation where it was, there is not a little 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 view of what I have said in this opinion, the Supreme Court in summarily dismissing the petition for special leave has done great injury to the fabric of our laws. In my opinion once the Supreme Court has before it a full account of the grave issues involved, they should follow the course adopted by the House of Lords in Khwaja's case When it first came before the House of Lords the petition was dismissed. When the petition in Zamir's case came before the House raising the same issues as in Khwaja's petition, the House of Lords recalled its order and admitted the petition.
In my opinion, the Supreme Court should recall its order, admit the special leave petition and decide the matter on merits.

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

The post ‘SC should recall its order’ appeared first on SabrangIndia.

 

It is difficult to comment, much less to criticise, an order of the Supreme Court refusing special leave to appeal under article 136 of the Constitution. It is discretionary jurisdiction. The SC is not bound to interfere with every erroneous order of the High Court, nor does its interference tantamount to an affirmation of the order.

All this is trite law, but then, there are cases and cases. The judgement of the division bench of the Bombay High Court in ‘J.B. D’Souza versus state of Maharashtra’ is one which compelled comment – affirmative or negative – by the highest Court: if only for the reason that it interpreted sections 153A and 153B of the Penal Code (in my opinion wrongly) and held that the offending newspaper articles did not come within the “mischief” of these sections (again in my opinion, in error).

One must first become acquainted with the history of the sections to appreciate the “mischief” they sought to prevent. Sections 153A and 153B were enacted in 1898 as an addition to the Penal Code for the greater protection of public tranquility in a pluralistic society, the members of which professed different religions and faiths.

When in the United Kingdom more than a century ago, Lord Macaulay had protested in British Parliament against the way the blasphemy laws were then administered, he had added: “If I were a Judge in India I would have no scruple about punishing a Christian who should pollute a mosque.”

When Macaulay became a legislator in India, he saw to it (by provisions made in the Penal Code) that the law protected the religious feelings of all – in Chapter XV (Offences Relating to Religion). These provisions were inadequate to deal with riots and civil strife, and the Penal Code was amended to include Sections 153A and 153B.

When judges speak, what they say (and significantly, what they do not say) sends down strong signals. People listen, and shape their actions accordingly. The message conveyed by the judgement lies as much in what it does not say as in what it does. The message clearly is that the intemperate word against a particular community likely to cause disharmony will now not only go unpunished, but will not even suffer a judicial rebuke. This is the single most sinister, most deplorable fall-out of the judgement of the justices Majithia and Dudhat.

Today we are an explosively plural society, and desperately need sections 153A and 153B – but we need to use them as well. They remain on our statue book to give assurance to the people of India that promoting enmity between different groups on grounds of religion will not be tolerated and will be visited with penal sanctions; to guarantee to the minorities that secularism is a basic feature of our laws, an affirmation made so very recently, and in such eloquent terms, by a bench of nine justices of the Supreme Court (in Bommai’s case – March 1994). It is this assurance that was denied to the people of Maharashtra, especially to the minorities in the state, by the High Court of Bombay.

And it was for this reason that the discretionary jurisdiction of the Supreme Court was invoked, but without success. The ratio of the judgement of the High Court ought not to have been permitted to stand, and made non-vulnerable only because of the rhetoric expressed at the end. The judges of the High Court felt (and said so in one of the last paragraphs of the judgement) that launching a prosecution now would be futile since “a lot of time has elapsed and peace, tranquility and communal harmony, of which Bombay city is historically proud of, is restored.” A moment’s reflection would (and should) have convinced the justices that it was inflammatory articles such as those cited in D’Souza’s writ petition that had aggravated (if not contributed to) the violent disturbances that shook Bombay in January 1993; and that if such-like articles were repeated the already fragile edifice of “communal harmony” (dear to the hearts of the judges) would collapse.

There is something more. Nowhere in its 57-page judgement does the High Court express any displeasure at the tone and content of the offending articles. There is no expression of censure, no record of any expression on the part of the offending newspaper of contrite grief; for religious feelings which may have been hurt.

When judges speak, what they say (and significantly, what they do not say) sends down strong signals. People listen, and shape their actions accordingly. The message conveyed by the judgement lies as much in what it does not say as in what it does. The message clearly is that the intemperate word against a particular community likely to cause disharmony will now not only go unpunished, but will not even suffer a judicial rebuke. This is the single most sinister, most deplorable fall-out of the judgement of the justices Majithia and Dudhat.

That all this should not have been seen fit to be corrected by the Supreme Court of India when its jurisdiction was invoked, prompts only a plaintive prayer, “Where then, O Lord, shall we turn, for the redressal of palpable wrongs?”
 

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