LET OFF, FOR NOW

A Mumbai court terminates prosecution proceedings against Bal Thackeray for his inflammatory writings that preceded the Mumbai riots of 1992-93. However, the State's Democratic Front government's resolve to bring the guilty to book bodes ill for the triumphal Shiv Sena, whose threat of terror has meanwhile been proved to be empty.

"If I am arrested... then the whole of the country up to Jammu and Kashmir will rise up. I am prepared. If a holy war is to begin because of me, than so be it."

- Bal Thackeray in Saamna, January 23, 1993.

ON July 17, as news of the Maharashtra government's decision to prosecute Bal Thackeray for inciting communal hatred spread through the State, an irate army of Shiv Sena workers attacked the Mayor's office in Thane. They broke furniture and windowpanes, and then proceeded to set papers in the office on fire. Newspaper reporters were perplexed, for the Mayor of Thane, Ramesh Vaiti, is himself a Shiv Sena leader. Even more surprising, he was leading the mob himself. It turned out that no one on the street s had joined the Sena's protest, driving its lumpen forces to vent their fury on themselves.

Predictably, then, no holy war began through India when Thackeray was arrested nine days later, on June 25. Seven years after he authored his infamous threat in the party newspaper, Saamna, even the Shiv Sena's Mumbai citadel did not burn. Through the morning of their general's arrest, the lumpen armies of the Shiv Sena succeeded only in throwing stones at cars passing through some half a dozen neighbourhoods, while their representatives in the Maharashtra Assembly laboured to rip apart the fitti ngs in the House. The only things ablaze in Mumbai were the fireworks set off by Shiv Sena cadre later that day, to celebrate Additional Chief Metropolitan Magistrate B.P. Kamble's decision to terminate the legal proceedings against Thackeray.

Supporters of the Hindu Right have since been revelling in Thackeray's triumph, but Mumbai's would-be fuhrer has good reason for caution. The threat of Shiv Sena terror, India's longest-running political bluff, has without dispute been called by the Demo cratic Front (D.F.) regime. As important, Magistrate Kamble's controversial order is certain to face rigorous legal challenge. And with judges in the Supreme Court taking a decidedly less indulgent view of Thackeray's hate crimes than Magistrate Kamble, the Shiv Sena's orgy of self-congratulation could prove premature.

BAL THACKERAY walked into the Bhoiwada Magistrate's Court at 10 minutes to 12, some 20 minutes after his arrest at the Mumbai Mayor's residence. The Shiv Sena chief, in his capacity as the editor of Saamna, was charged along with the newspaper's e xecutive editor Sanjay Raut and publisher Subhash Desai with inciting communal hatred. Three editorials and an article written in January 1993, when the Shiv Sena unleashed a communal pogrom against Mumbai's Muslim community, formed the basis of the pros ecution case. Prosecution lawyer P.R. Vakil began by moving a remand application, announcing that he would shortly file a charge-sheet. Thackeray's lawyers, Adhik Shirodkar and Satish Manashinde, told Magistrate Kamble that they wished to move a bail app lication in the event that the court took cognisance of the charge-sheet.

Less than half an hour after Thackeray appeared in court, the Additional Chief Metropolitan Magistrate had made up his mind. "As the case is time-barred," he said tersely, "the offence cannot be taken cognisance of, as also the State has not explained in its remand explanation the reason for its delay in filing the charge-sheet. Condoning such a delay is on the court's discretion. The accused is therefore released and the offence registered stands terminated." Kamble also said he was "considering what t he public is facing, at whose instance, and at what cost". The Judge also argued that an "unnecessary law and order situation was created which could have been avoided". Thackeray walked out of the court in triumph, demanding Deputy Chief Minister Chhaga n Bhujbal's dismissal for having dared to prosecute him.

But Magistrate Kamble's order has raised a number of difficult questions, for which answers will have to be found. The Magistrate relied on Section 468(3) of the Code of Criminal Procedure (CrPC), which mandates that the prosecution of offences which car ry maximum sentences of one and three years must begin within three years, although Section 473 of the CrPC mandates that a Judge may condone such delay if the "facts and circumstances of the delay have been properly explained" or even simply "in the int erest of justice". Magistrate Kamble chose not to exercise this power for the simple reason that the State never asked for the delay to be condoned. Indeed, the limitation clauses of Section 468 have formed a core element of the propaganda put out by the Hindu Right's legal luminaries.

Few in the media, like Magistrate Kamble, appear to have taken the trouble to test the claims of Thackeray's lawyers against the plain language of the law. The end of Section 468 of the CrPC makes clear that its mandates are binding "except as otherwise provided". Section 470(3) lays out one crucial exclusion. When "under any law", it reads, "the previous consent or sanction of the government or of any other authority is required for the institution of prosecution, then in computing the period of limita tion, the period of such notice or the time required for obtaining such consent or sanction shall be excluded". Since prosecutions under Section 153A of the Indian Penal Code (IPC) require government consent, the clause clearly applies. Put simply, the S tate made no application for the Judge to condone the delay in filing a charge-sheet because none was required.

Prosecution counsel Vakil is not the only one perplexed by the events in court. For one, the sole reason Kamble's order gives for rejecting the mandates of Section 470 is that written copies of the State's sanction to prosecute were not produced. But Va kil has gone on record to say that Kamble did not give him an opportunity to produce the document, which he had with him in court. More important, the State had not filed a charge-sheet before the Magistrate at the time he threw the case out. How he coul d dismiss a case that had not been formally filed before him is one of the mysteries that will undoubtedly be explored in an appellate court.

Magistrate Kamble's digressions into the law and order situation or the State government's motives, too, have raised eyebrows. And some of the terminology in the Judge's order, notably the use of the word 'terminate', are unfamiliar to students of Indian criminal law.

"It is not proper for me to prejudge the High Court on these issues," says eminent constitutional lawyer P.P. Rao, "but I will say that it is a fit case for appeal."

MYSTERIES, indeed, have been a recurrent motif of the two cases for which Bal Thackeray was arrested. Criminal Register number 420/93 and 459/93, filed in June and July 1993, each addressed two articles carried by Saamna in January that year. The first information reports charged Thackeray, Raut and Desai with offences not only under Section 153(A) of the IPC, but also Section 3 of the Police Act of 1922, which deals with the incitement of disaffection among police personnel. The use of this seco nd section, the prosecution of which requires the sanction of the Police Commissioner or District Magistrate concerned, was provoked by the allegations levelled in Saamna against certain Mumbai Police officers of Muslim origin. In April 1994, havi ng completed its investigation, the Mumbai Police applied to the State Home Ministry for sanction to prosecute Thackeray and his colleagues.

Then the Shiv Sena-Bharatiya Janata Party government took power and the cases disappeared. While the Sena-BJP withdrew over a dozen pending riot-related cases against Thackeray, CR 420 and 459 vanished into the nether reaches of the Home Ministry's Gener al Administration Department. There it lay through the Hindu Right government's four-and-a-half years in power. No one is certain whether this was simply oversight, or whether BJP leader and then Home Minister Gopinath Munde chose to keep the case as an insurance policy to rein in Thackeray in the event of a rift within the alliance. Whatever the truth, this period of delay, which is at the heart of the Shiv Sena defence that Thackeray's prosecution is barred by the laws of limitation, was clearly the r esult of inaction by the then government.

Action had to await the arrival of Bhujbal, a one-time Shiv Sena leader who had played a key role in the organisation's expansion out of its Mumbai heartland into rural Maharashtra. A sustained campaign by the Shiv Sena-BJP opposition to bring down the g overnment, with the support of Nationalist Congress Party (NCP) dissidents grouped around Vijaysinh Mohite-Patil, earlier this year prepared the ground for Bhujbal's offensive.

Meanwhile, the Shiv Sena, which has long charged Mumbai's Samajwadi Party chief Abu Asim Azmi with having connections with Pakistan's Inter-Services Intelligence (ISI), made demands for his arrest the centrepiece of its renewed offensive. Azmi made a spe ech at Mastan Talao on February 24, proclaiming that if Islam was attacked he was not bothered if India broke into pieces. Bhujbal promised to arrest Azmi, but also promised action against Thackeray on the same legal grounds. (On July 27, the police file d a charge-sheet in the court of the Metropolitan Magistrate against Azmi for alleged offences under Sections 153 and 153(a) of the IPC.)

Over the next weeks, the Home Department got to work finding the files on CR 420 and CR 459. It took an extended search of records at the Dadar police station and the Mumbai Police's Special Branch to trace the documents back to the General Administratio n Department.

When the Shiv Sena began an ambitious programme of political mobilisation ahead of the monsoon season, attacking establishments perceived to discriminate against Maharashtrians and defaming Muslims, the need to act sharpened. The last straw appears to ha ve been the Shiv Sena-BJP's renewed flirtation with the NCP's eight dissident MLAs. Although these numbers were nowhere near those required to bring down the government, Bhujbal was now convinced that the D.F. had to take on the Hindu Right frontally if it was to survive.

BUT few in the D.F. agreed with him, and Bhujbal's next move was made in complete secrecy. On July 15, Chief Minister Vilasrao Deshmukh was working in his office, when images of Thackeray began to flit across a television screen at the far end of the roo m. It was not until he turned up the volume, and recovered from the shock of hearing that Bhujbal had sanctioned Thackeray's prosecution, that the Chief Minister asked his staff whether the Deputy Chief Minister had sent up a file on the subject. It turn ed out that he had done so, but it had been put aside on the assumption that the papers were of a routine nature. Bhujbal, sources say, explained that he had not intended to speak to the press on the issue, but was ambushed by reporters after news leaked of the sanction.

Deshmukh rapidly rallied around Bhujbal, bolstered by support from influential Congress(I) leaders in New Delhi. The real problem that remained was within the NCP. When NCP president and former Union Minister Sharad Pawar arrived in Mumbai on July 19, he believed the case against Thackeray was among those that had been thrown out by the Bombay High Court in 1994 when it heard a public interest litigation asking that the State be compelled to prosecute the Shiv Sena supremo for his writings in Saamna. Mohite-Patil and other senior NCP leaders also complained that the decision had been taken without building an inner party consensus, and that it might well backfire.

Younger NCP leaders, however, differed. Finance Minister Jayant Patil, for one, forcefully argued that a strong line against the Shiv Sena offered the moribund NCP its sole opportunity to expand its base in Maharashtra, and emerge as a powerful regional formation.

By the time Pawar returned to Delhi the next day, he was evidently persuaded by what the radicals within his party were pushing for. He now issued a statement endorsing Bhujbal's prosecution. In Mumbai, both Deshmukh and Bhujbal got to work to reining in the Shiv Sena. Security was withdrawn for dozens of shakha pramukhs (branch heads), the cutting edge leadership of the Shiv Sena's lumpen forces. Much of the security had been granted after a welter of mafia-related attacks against the Shiv Sena, and often in contravention of security guidelines. Although the shakha pramukhs bitterly complained that their lives were in jeopardy, in the event none was harmed. As the Mumbai Police began a crackdown against Shiv Sena activists believed to be in the process of organising violence to protest against Thackeray's now-imminent arrest, dozens of activists quietly left town.

Blackmail was now the only line of defence open to Thackeray. On June 19, Shiv Sena Ministers Manohar Joshi, Balasaheb Vikhe Patil and Suresh Prabhu submitted their resignation to Prime Minister Atal Behari Vajpayee. The display did not work. That evenin g, Union Information Technology Minister Pramod Mahajan delivered a blunt warning from the Prime Minister to the Shiv Sena chief. "You already have one government as an enemy," he said, "do you really want two?" New Delhi made a minor ritual show of pres suring the Maharashtra Government by refusing additional Central Reserve Police Force (CRPF) units to secure the city. This, however, had little real meaning, for a few additional companies would have done little to supplement the 40,000-strong Mumbai Po lice. Bhujbal responded by threatening to withdraw Maharashtra Police personnel from Central installations like the Mumbai Airport, scoring political points.

More than a few State BJP leaders gloated over the events, for they meant an end to the Shiv Sena's efforts to revitalise its apparatus. Mahajan now set about trying to broker deal through which Thackeray would agree to be prosecuted as long as he was no t arrested. Pawar rejected this offer out of hand. A second set of proposals, this time for detention at home rather than a humiliating encounter with the police, were in turn shot down by Bhujbal. In the two days before the arrest finally took place, Bh ujbal suggested that Thackeray surrender at the Commissioner of Police's office, and then be driven to the Magistrate's court. Thackeray, in turn, offered through Munde to surrender to the police at the Mumbai Mayor's residence instead. This deal was fin ally accepted, subjected to one important caveat: if the Shiv Sena chief did not tone down his violent polemic, the State would oppose bail. The threat worked. In Bhujbal's words, Thackeray promptly became "Gandhian", calling on his cadre to maintain the peace.

MOST observers have seen the events at Magistrate Kamble's court as a crippling setback to secular forces in Maharashtra, and a triumph for the Shiv Sena. Newspaper reports have proclaimed that a revolt against Bhujbal is imminent, as NCP dissidents clam our for blood. Neither of these events, however, appears probable. For one, the expulsion of 12 Shiv Sena MLAs for their vandalism in the Assembly has given the D.F. the numbers it needs to survive the political attacks launched by dissidents within its ranks. Then, the Shiv Sena's tactical triumph in the court rests on uncertain legal foundations, and could well be reversed. Finally, the welter of prosecutions that is certain to open up when the Supreme Court takes up the Justice B.N. Srikrishna Report in August will also propel events.

Most important, the events of July have given anti-Shiv Sena political forces a coherent agenda for action. Bhujbal has, despite the Additional Chief Metropolitan Magistrate's order, emerged as a credible voice of a wide constituency made up of Dalits, b ackward classes, minorities and traditional Congress supporters who have been in search of leadership.