Commentary/Dilip D'Souza

Conundrums, contortions, convolutions

Bal Thackeray and the Law

Here's the conundrum of the next few weeks. Let's say the Supreme Court dismisses Shiv Sena chief Bal Thackeray's appeal against the sentence passed on him by the Nagpur bench of the Bombay high court. If that happens, how will the state government react? How will Chief Minister Manohar Joshi, whose hold on office -- whose very political existence, in fact -- depends utterly on the whims of Thackeray, be able to put his own remote control in jail? I suspect the answer to that question will be one of the more interesting episodes of the year. Wait for it.

You have this opportunity for delicious anticipation because of something Thackeray said some months ago. He told the world that he knew about a judge who had asked for a bribe of Rs 3.5 million for making a certain judgment. Thackeray didn't think he needed to identify the judge, but repeated the story a few days later. That led two Nagpur residents to file a petition alleging that Thackeray was bringing the judiciary into disrepute and so was guilty of contempt of the courts. The judges agreed. They have sentenced him to two jail terms of a week each, to run concurrently.

Thackeray has still not identified his bribe-taking judge.

Thackeray's lawyer used a clever defence while arguing the case. The Contempt of Court Act, he pointed out, says that the courts 'may' take action if someone is found guilty of contempt. That is, he argued, the use of the word 'may' means that the courts were not required to take action. He urged the judges not to punish Thackeray for this reason. Now the lawyer admitted that Thackeray said what he did. So, in effect, he was saying to the judges: 'It's true my client said this, it's true that he committed contempt, but you don't have to punish him, so don't.'

There's foolproof courtroom logic for you. Unfortunately, it failed.

Meanwhile, back at home in Bombay, there's more delicious anticipation in store, besides more curious logic on display, in another case involving Bal Thackeray. This one has its roots in incidents now over five years old.

In October of 1991, Pakistan's cricket team was to play a match in Bombay. Thackeray threatened to set Wankhede stadium, where they were scheduled to play, 'on fire' if the match was allowed to take place. Perhaps he then had second thoughts about taking on such a huge task, for he pre-empted the very need for it by dispatching a commando team of brave Shiv Sena men to the stadium. They infiltrated the stadium's defences, dug holes in the pitch, poured oil into the holes and ran away. The match was cancelled.

The newspaper Mahanagar criticised Thackeray for this entire episode. Promptly, more Shiv Sena men -- still thinking of themselves as commandos, no doubt -- infiltrated Mahanagar's defences, vandalised its office and beat up its staff. The police filed a case about this: the one now being heard. If you think it is amazing that it took five years to come before a judge, what's more amazing is that it has survived at all. Cases involving Bal Thackeray that the state files invariably have one or more of three exemplary features: they are either weak, not pursued, or withdrawn altogether.

Still, this one made it before K H Holambe-Patil, additional chief metropolitan magistrate. He has issued repeated summons to Thackeray to appear, none of which Thackeray has paid any attention to. One was for January 6 this year. Thackeray told the judge he could not attend that day as it was the 'death anniversary of his wife.' He was granted the exemption that time, but it was left to the judge to gently point out that January 6 'was not the late Ms Thackeray's death anniversary but her birth anniversary.'

The judge issued a new summons for Thackeray to appear on February 4. This one elicited just as much respect from Thackeray as the others. He was not keeping good health and had 'chest pain', his lawyer said. His doctor had advised him not to appear in court to 'avoid stress.' So he could not show up. The case has been adjourned to February 18 and the judge has asked Thackeray to appear 'as soon as he recovers.'

Thackeray recovered very quickly indeed. A court appearance was too stressful to undertake, but on February 5, he left for Nashik, Pune and Nagpur to campaign for the municipal elections that are only two weeks away. Before leaving, he told his paper, Saamna, this: "I am quite okay."

Wait, I'm not finished telling you about this case yet. The government, perhaps startled that it actually has seen the light of day, has instructed the public prosecutor to withdraw the case. Home Minister Gopinath Munde explained: 'The Government has taken a decision to withdraw cases which were filed in course of public agitations or movements and where the evidence is not adequate [for securing convictions].' What's more, the previous government 'appears to have bungled up in collecting evidence, if any, in connection with the attack on Mahanagar.'

Note, in passing, the eminent minister's deft use of the words 'if any.' Without them, he would have implied that there actually was evidence of the attack. Naturally, Munde cannot afford such an implication, for that would mean there is substance in the case against Thackeray. Now he not only blames the previous government -- always a worthwhile political exercise -- but indicates that there is no evidence in the case at all. Which, I imagine, is a contention a few seriously injured Mahanagar employees might disagree with.

Be that as it may, and unfortunately, Justice Holambe-Patil has refused to let the government withdraw the case.

As you see, court cases involving Bal Thackeray are fertile ground for all kinds of convolutions, contortions and conundrums. So before I collapse in exhaustion relating them all, let me remind you of just one more.

On December 9, 1992, at the height of the riots in Bombay, Thackeray wrote this in an editorial in Saamna: '250 million Muslims in India loyal to Pakistan will stage an armed uprising. They form one of Paistan's seven atomic bombs.' This and eight other editorials formed the basis of a petition that two citizens filed after the riots. They urged the Court to direct the government to prosecute Thackeray under Sections 153A and 153B of the Indian Penal Code.

Here's what Section 153B says: 'Whoever by words either spoken or written makes any imputation that any class of people cannot, by reason of their being members of any religious group, bear true faith and allegiance to the Constitution of India ... shall be punished with imprisonment to three years or fine or both.' That is, you cannot say people are not loyal to the country because they follow a certain religion.

You can decide if Thackeray's editorial violates Section 153B. Remember that there are only about 120 million Muslims in India.

In any case, many convolutions and contortions later, the petition was heard by Justices M L Dudhat and G R Majithia of the Bombay high court in September 1994. They dismissed it because, they observed, much time had passed and it was unwise to 'rake up' old issues all over again. Also, they found none of the editorials worthy of action 'when read in full.' Referring to the one I've cited above, the honourable judges decided that the 250 million figure 'appears to be a typographical mistake', despite Thackeray's use of the same figure in at least one of the other editorials.

One of the country's foremost legal and constitutional scholars, H M Seervai, had this to say in response to the dismissal of the petition: '...The interpretation given to [the 250 million figure] is absurd and perverse. The statement that '250 million Muslims' was a typographical error is based on no evidence ... A clearer violation of Sections 153A and 153B is difficult to imagine.'

Seervai also said: 'In my opinion, the affidavit [filed by the state government in the case] clearly established that the government knew that the nine passages complained of [in the petition] violated the provisions of Section 153A, but was determined not to prosecute Shri Thackeray.'

That's Gopinath Munde's 'previous government' that Seervai thought was determined not to prosecute Thackeray. Which brings us right back to the Nagpur judgment. How will the current government, that exists purely on Thackeray's say-so, be able to imprison him?

Conundrums, conundrums. If you're not tired of them yet, try this intriguing little fallout of the contempt judgement. One of the petitioners in the case is a 70-year-old Nagpur businessman, Harish Pimpalkhute. As soon as the court passed its sentence, the government gave Pimpalkhute security. Several policemen now surround him round the clock.

That is, the government is protecting Pimpalkhute from the actions of the man who runs the government. Now if that isn't calculated to make Pimpalkhute feel completely secure, I don't know what is.

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