Editorial/Have gun will win
Trying Mr Thackeray
Letters to the Editor

The trail of violence which left 11 supporters of the Trinamool Congress dead in the Birbhum district of West Bengal is not an isolated thing. There has been a remarkable escalation, in the last few months, of bloodshed and gang warfare in the districts of West Bengal. In nine cases out of 10 the context of the violence is political. The two principal contenders, the Trinamool Congress and the Communist Party of India (Marxist) can continue to trade charges but the ordinary inhabitants of West Bengal will read the signs to be ominous and the older among them will discern remarkable similarities with what prevailed in the state in the late Sixties and the early Seventies. The context of the current violence can be easily spelt out. The hold and the influence of the CPI(M) is under threat from the Trinamool Congress. In some areas there is also a noticeable switching of loyalties from the left to the Trinamool Congress. This is a cause of friction between the two political groups in the rural world. In the Sixties, when the Congress�s popularity was being eroded and the left was on a winning curve, violence stalked the districts of West Bengal. But the scale of the violence this time has increased because there has been a shift from homemade bombs and pipe guns to more sophisticated weapons. It is clear that political parties, despite their protestations about commitment to democratic politics, have their own arsenals.

A further aggravating factor has been the complacency and inactivity of the law and order machinery. An efficient police force with a good intelligence network should not take more than a few hours to round up those in the possession of illegal weapons. The enabling condition for this kind of efficiency is independence of the police from political interference and influence. Under Left Front rule, this condition has become nonexistent. The entire police force runs on diktats issued from the Writers� Buildings or, what is worse, from Alimuddin Street, the headquarters of the CPI(M). Police officers therefore do not move till they have received clearance from politicians. The latter always protect their cadres and other vested interests. The preservation of law and order and the maintenance of the institutions of civil society are not issues of any relevance to them. The CPI(M) might try to hold the Trinamool Congress responsible for this or that incident but it must carry on its shoulders the disgrace of having eroded the strength and autonomy of the law and order machinery. This has long term implications for governance in West Bengal. It might make the state as lawless as Bihar.

The politics of protection and revenge has violence inherent in it. The countryside of West Bengal has appeared to be peaceful because the victims of CPI(M)�s oppression and those outside its protection have lacked a channel through which to voice their plight. The emergence of Ms Mamata Banerjee as a potential challenge to the CPI(M) has provided them with a rallying point and protector. The dominance of the CPI(M) was based on non-reciprocal violence. This is no longer true. There is something infantile in the politics of tit-for-tat but Ms Banerjee knows of no other idiom. Her politics is also based on protection and populism. This is her common bond with the CPI(M). In a sense, therefore, the CPI(M) has met its match in Ms Banerjee who has taken lessons from the way the CPI(M) operated when it was expanding its base and influence. As violence escalates, West Bengal declines even further.

The state has a history of violence and this has kept away investors. Violence induces instability and produces disruption; both these keep capital away. For both Ms Banerjee and the CPI(M), economic development takes second place to political power. The use of that power is not something to which political parties devote much time and thought. West Bengal is thus caught in a cycle of violence. It will be broken only when the political tussle is resolved. After that victims and victors will interchange places.    

Mr Bal Thackeray wrote editorials in Saamna in 1993 which were allegedly inflammatory and threats to the communal peace just before the anti-Muslim pogroms in Mumbai. The Congress government in power then did nothing to bring charges against him. Subsequently the Shiv Sena-Bharatiya Janata Party coalition made no attempt to move the courts against Mr Thackeray. The Nationalist Congress Party-Congress government, egged on by Chhagan Bhujbal, once Mr Thackeray�s follower, now his would-be nemesis, decided to arrest the Shiv Sena chief. After the mandatory disorder in the Maharashtra assembly and the streets of Mumbai, Mr Thackeray allowed himself to be technically arrested whereupon the magistrate before whom the case was brought, dismissed it on the ground that it was time-barred.

Editorial comment on the case in the liberal press has been divided. The Hindustan Times has argued that Mr Bhujbal had dressed up political vendetta in the majesty of the law. His much touted arrest was pointless because there was no legal need for it � because Mr Thackeray had not repeated his provocations and the case was seven years old. The Hindu argued that Mr Thackeray had through threat and intimidation succeeded for years in raising himself above the (inadequately) long arm of the law.

In that paper�s view it was legitimate for the present Maharashtra government to prosecute him, if only to demonstrate that the rule of law harbours no exceptions. Confronted by the uncomfortable fact that the legal rule in question (that charges must be brought within three years of the alleged offence) lets Mr Thackeray off, The Hindu argued that the law permitted exemptions and that this case satisfied the conditions necessary for such an exemption.

To a lay reader of newspapers (one with no legal training), it is hard to choose between these positions. The magistrate�s refusal to take cognizance of the Maharashtra police�s case seems to support The Hindustan Times�s position (and that of Mr Ram Jethmalani). The law, after all, is the law: we can scarcely rail against it if it doesn�t suit our prejudices.

On the other hand, it does seem unjust that a person accused of the criminal offence of inciting violence should escape through a procedural loophole. In recent months we have seen General Augusto Pinochet arrested in England for offences committed decades ago in Chile and very nearly extradited to a third country, Spain. So how does it come about that Mr Thackeray charged in Mumbai for offences committed in Mumbai goes scot free?

This case survived into the year 2000 by a mischance. The other cases against Mr Thackeray had been withdrawn by a friendly Shiv Sena-BJP government: this one survived because the file concerned had been lost and the case couldn�t be withdrawn till it was reassembled piecemeal. By the time this happened, the government had changed. In fact, the drama around Mr Thackeray�s arrest and release is a red herring: the real scandal is that criminal charges can be withdrawn if you have friends in high political places, as those other cases have been.

I, like many other people, had always assumed that criminal charges couldn�t be time-barred. I was wrong. Under Section 468 of the criminal procedure code, if you are accused of crimes which attract a punishment of three years or less in prison, these charges are variously time-barred. Now the substantive law under which Mr Thackeray was liable for his essays in the Shiv Sena magazine, Saamna, is Section 153 (a) of the Indian penal code. Had the case against him been admitted, he would have been tried for inciting enmity between communities, and his writing would have attracted three years in jail if he had been shown to be guilty of this offence.

If, however, no charges were formally admitted inside three years, the case would lapse. In Maharashtra, once a first information report is registered, to press charges under Section 153 (a), the police require the authorization of the state government. Since neither the Congress government not the subsequent Shiv Sena-BJP coalition granted this authorization, the case could not be brought before a magistrate.

To my relief, I discovered that this doesn�t lead to the depressing conclusion that all a hood has to do to get away unpunished in India is to impede the legal process for three years. The law is not so mechanically unjust. Another section of the CrPC, Section 473, allows for a range of exemptions to the time-barred rule. One of them is particularly broad: if the magistrate or judge feels that in the interest of justice the rule be waived, it can be waived.

So what went wrong?

First of all, we need to distinguish between Mr Thackeray�s arrest and his prosecution for those editorials. It wasn�t necessary to arrest Mr Thackeray to prosecute him. There was no real case for arresting Mr Thackeray. In law, jail is the exception, bail is the rule. To arrest someone, to hold him in judicial custody, the police have to demonstrate that they need him under restraint so that they can gather evidence unimpeded.

In this case, the matter was seven years old and the evidence for the offence in question (the Saamna material) was already available in black and white, in print. So the arrest was � no pun intended � unwarranted. The Hindustan Times is right on this count. Mr Bhujbal was trying to show that he could whisker the tiger in his den: he was grandstanding.

But The Hindu is right too because the ends of justice are to be served not through Mr Thackeray�s arrest but through his trial. The Maharashtra government (forgetting political vendetta and the government�s composition for a moment) was within its rights both legally and morally to try to prosecute the Shiv Sena chief. The way to do this was to ask for an exemption from the time-barred rule.

Unfortunately, the argument that the Maharashtra police advanced for a waiver of the rule didn�t impress the presiding magistrate. The police argued that the rule did not apply because the FIR had been lodged, the chargesheet had been prepared and permission to prosecute had been applied for well inside the legally stipulated three years. The fact that the government of Maharashtra took years to grant this permission should not be allowed to procedurally derail the case.

Essentially the police was arguing that their application to the government for permission to prosecute should be treated as a formal lodging of the case. There was no precedent for their argument and the magistrate effectively threw their case out of court by refusing to take cognizance of it.

I�m no lawyer but it seems a mistake to have arrested Mr Thackeray and then to have made a procedural argument for waiver. Under Section 473 of the CrPC, the police might have done better to argue that the inaction of governments through these seven years was in danger of subverting the ends of justice and that the executive�s dereliction of its duty was reason enough for the judiciary to invoke the exemption clauses to admit a case where, if the time-bound clause was set aside, there was enough published evidence available for it to normally go to trial.

The Maharashtra government has said it will appeal. I hope it does and if it does I hope it does its homework. There are other arenas where Shiv sainiks, past and present, can measure who is biggest: alleys, backstreets, locker rooms...so perhaps the next time round, Mr Bhujbal will cut out the theatrics and concentrate on the law. This case will likely set precedents for the punishment of erring netas -� an issue, incredibly, even more important than Mr Thackeray�s precious izzat or Mr Bhujbal�s loss of face.    


Boys will play the game right

Sir � Los Angeles is �embarrassed� for being unable to find a politically correct public place for holding the democratic national convention (�Democrats in Playboy den�, July 26). Even more embarrassed are the Democrats and their nominee, Al Gore. But why this sudden misplaced discomfiture for holding the bash at the mansions of the Playboy founder, Hugh Hefner? Gore knows as well as anyone else that the Playboy readers among his supporters would easily outnumber the Wall Street Journal readers. And besides, if he has no qualms about accepting Hefner�s generous contributions to his campaign, should he be having any about using Hefner�s mansion? After all, it is only incidental to the cause.

Yours faithfully,
Smita Sarkar, Calcutta

Beware, they bite

Sir � Reports available from various sources including researchers� views confused people about the death of 12 tigers at the Nandankanan zoo in Orissa earlier this month. The agent of the disease is trypanosoma evansi, a parasite that normally affects camels, horses and cattle. It is mechanically transmitted by Tabanus flies among herbivorous hosts when they move quickly from one animal to another. Since Tabanus flies do not feed on carnivores, the possible cause of trypanosome infection on carnivorous animals is through the food they consume.

So if trypanosome infection has caused the death of the tigers, it must have occurred through the meat they ate. Medication given six or seven days after the infection occurs is futile. After the cyclone in Orissa last year, the cattle might have been affected with malnutrition, and this may have initiated a trapanosome outbreak. Thus a survey of the cattle�s health is necessary in Orissa. This would provide clues to the problem. Extensive hybridization may reduce some immunological and physiological competence, but cannot be the main cause of the disease. There should now be extensive research into this.

Yours faithfully,
Debjani Biswas, Calcutta

Sir � Subhro Saha must be thanked for driving home the significant factors behind the death of the tigers at Nandankanan zoo, �Lab test blames decomposed meat for Orissa tiger deaths� (July 16). But I want to point out that his erroneous use of the word, �decomposed� has led the zoo authorities to move away from the real problem. The difference between �contaminated�, �infected� and �decomposed� is subtle but important. It is easy for a layman to get confused, since fresh meat can easily be infected.

Yours faithfully,
Debasis Chakrabarti, managing trustee, People for Animals, Calcutta

Universal intentions

Sir � Lara Dutta�s claim to work for AIDS patients sounds hollow (�Lara back as AIDS angel� July 24). Like her predecessors, Dutta too has spoken well versed lines, pledging to work for the diseased and the downtrodden. We have all seen what these claims lead to. Dutta, like all the other Indian beauties who have achieved international acclaim will probably join the Mumbai film industry, and simply make money. Not one of these beauty queens has done anything worthwhile for society, despite their claims to work for the welfare of the country. Yet people and the press seem to accept their comments at face value, and are impressed all the same. Will this new Miss Universe prove to be any different? Let�s hope that she is.

Yours faithfully,
Rina Chawla, Haldia

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