While Union Minister for Communications and Information Technology Kapil Sibal wants to crack down on hate speech over the internet and his Ministry last week granted sanction to prosecute Facebook, Google and other websites for “instigating enmity between different groups of people,” the coalition government run by his Congress party in Maharashtra has been dragging its feet on prosecuting Shiv Sena leader Bal Thackeray for hate speech crimes that are much more serious.
Unlike the postings on Facebook and elsewhere, which the government apprehends might instigate enmity and violence, Mr. Thackeray's writings were considered by the Srikrishna Commission incendiary material for the violence which wracked Mumbai in 1992 and 1993, taking the lives of several hundred people.
After the communal riots in Mumbai following the Babri Masjid demolition on December 6, 1992, many cases were filed against Mr. Thackeray, also the editor of Saamna , the Shiv Sena newspaper, but most of them resulted in no action. Even before and after the riots, police registered cases under section 153 A of the Indian Penal Code (IPC) for promoting enmity but little came of them. Information obtained under the Right to Information (RTI) Act in 2011 after a prolonged battle with the authorities and several appeals has revealed the status of some of the cases which were made available by the police. Simply put, neither the Shiv Sena-BJP government which was in power from 1995 to 1999 nor the Congress — which has been in power for three consecutive terms after that — has shown any interest in the prosecution. Cases have either been closed or are awaiting government permission to arrest the accused. The findings under RTI are excerpted from a recently published book, Riots and After in Mumbai: Chronicles of Truth and Reconciliation , byMeena Menon.An extract:
In December 2004, I had filed an application under the Right to Information (RTI) Act, 2005, asking for copies of police cases against Shiv Sena chief Mr Bal Thackeray and what action was taken in those cases. I also wanted to know the status of the cases and if they were withdrawn, and copies of documents saying so. After a long tussle, in a reply dated 19 May 2007, the Public information officer (PIO) of the Mumbai police commissionerate sent me a reply detailing eight cases filed against Mr Bal Thackeray, Shiv Sena chief and editor of Saamna between October 1992 to December 1993. The cases were filed between 20 January 1993 and 1 October 1993.
In four cases, the charge sheets were filed on 30 July 1993. All these four cases were withdrawn from the court at Dadar.
In two cases, the charge sheets were filed after the stipulated time period. And the remaining two cases have been closed for lack of evidence. No further details were available. My first appeal was dismissed but my second appeal was heard by the Chief Information Commissioner on 30 November 2009. Mr Joshi, in his final order of 8 October 2010 said, ‘In furtherance of the order given on the earlier appeal of Shrimati Menon on the same subject on 17.04.07, information about when charge sheet was filed against Shri Balasaheb Thackeray, the present information like withdrawal of cases has not been given under section 8(1) (g). Therefore the applicant has come in appeal. After hearing both sides, it is now decided that if the court has given the decision on the withdrawal of cases, then the text of the request made by the government for withdrawal of cases and the copy of the decision of the court be given to the applicant.'
The replies to my RTI started coming in from 18 January 2011. The first instalment on 18 January 2011 contained information from Dadar, Mahim and Shivaji Park police stations. In Dadar police station, there is a list of 14 cases registered under promoting enmity between groups (153A of IPC), defamatory writings, among other sections of the IPC. Of the 14 cases, three cases were closed under A summary, two of them on 31 December 1991 and one on 26 December 1991. In four cases, Mr Thackeray was acquitted after being charged under section 153 A of the IPC by the court on 18 October 1996. In two cases the court closed the cases filed under 153 A invoking section 468 (2) (c) of the Code of Criminal Procedure ( Bar to taking cognizance after lapse of the period of limitation which can range from six months to three years depending on the punishment). In three more cases, the matter was closed after the court accepted there is no evidence in the case. In one case, approval for C summary filed by the investigating officer is pending in court. In one more case, the case under 153A is pending since the government is yet to give approval for Mr Thackeray's arrest.
At Mahim police station, there are three older cases. In one case, Mr Thackeray was acquitted on 15 November 1990. In an old case of 1984, under section 153 A, the papers of this case are old and torn and so it is unclear what action was taken. In another case, of 1991, also under 153 A, and other sections of IPC, after the charge sheet was filed, the case was committed to the sessions court at Bandra on 27 September 1998. On 6 April 2004, the case was withdrawn after directions from the state government. No reason for withdrawal has been given.
There are two cases at the Shivaji Park police station. In one case of 2002, under section 153 A, the government is yet to give its approval to file the charge sheet in court. The matter is pending. In another case involving defamation, of 2004, the accused Mr Thackeray was not arrested even though a charge sheet was filed in court and the matter is sub judice .
In Gamdevi police station — via a letter dated 30 December 2010 — the police said it came to know in 1984 a case was registered under section 153 A, 295 A of IPC but it has no information on the current position about these offences and there is no information in the records and so it cannot be furnished.
Even before the riots, there were cases filed against Mr Thackeray but they seem to have gone nowhere. According to the records obtained under RTI, the Crime Branch unit 3, (in a letter of 12 January 2011) states that two cases were registered against Mr Thackeray at Azad Maidan police station on 28 March 1988. The government ordered the Crime Branch unit 3 to investigate these cases on 30 March 1988. According to the investigation, there was plenty of evidence under sections 153A, 153 B and 505 (1) (c) of the IPC and the Police Commissioner asked permission from the Secretary, Home Department, to file a case in court against Mr Thackeray in a letter on 9 June 1988. After that on 3 February 1995, the Additional Commissioner of Police, Crime Branch, sent another letter requesting speedy clearance to file the case in court.
On 13 April 2000, the Additional Chief Secretary, Home, asked for all the police cases against Mr Thackeray, which had to be committed to court. Accordingly on 25 April 2000 police inspector M.M. Kulkarni of Crime Branch unit 3 submitted the papers to Special Branch I. After this, there is no permission forthcoming from the government till now, the RTI letter said. Till the government permission is received, the charge sheets cannot be filed in court and the cases remain pending.
(Extracted from Riots and After in Mumbai: Chronicles of Truth and Reconciliation by Meena Menon. 2012/360 pages/ Hardback: Rs 595 (978813210700) SAGE Publications India Pvt. Ltd. Meena Menon is Deputy Editor of The Hindu and Deputy Chief of its Mumbai bureau.)
