The Telegraph
Since 1st March, 1999
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Guarded govt lobs ball back

New Delhi, Oct. 18: The Union law ministry has put a note to the Central government stating that the “alleged” crime of Shiv Sena chief Bal Thackeray is not a “punitive offence”.

The note also states that the matter, “however, is for the state government to handle”.

Government sources said the audio visual footage of Thackeray’s Dussehra rally speech calling upon Hindus to form suicide squads was sent by the Maharashtra government to the Union home ministry, which referred the matter to the law ministry for opinion.

In its detailed note, the sources said, the law ministry has advised the home ministry not to precipitate the matter as a move against Thackeray would spark communal violence.

But if the state government decides to go ahead with Thackeray’s arrest, sources said, the Centre has nothing to do about it as law and order is a state subject. In this context, the law ministry is of the opinion that the Centre has nothing to do with the issue, the sources added.

Deputy chief minister Chhagan Bhujbal, in charge of the home portfolio, had, however, said yesterday in Mumbai that it was up to the Centre to act on the case filed by Maharashtra police.

“A cassette of Thackeray’s speech had been forwarded to the Centre because the Sena chief had talked about using the army to deal with terrorists. Since the army is not a state subject, the matter has been referred to the Centre and now it is for them to act,” Bhujbal had said.

The sources said the note states that “the letter of law should not be followed in the matter” and that the “spirit” of law is against arresting Thackeray as the charges made out under the Indian Penal Code (IPC) cannot be carried out.

Thackeray in his address to the Sena cadre had allegedly incited communal violence and Maharashtra police have charged him under Sections 153 and 153-A of the IPC.

While Section 153 deals with offences of “wantonly giving provocation with intent to cause riot”, 153A is for “promoting enmity between different groups on grounds of religion, race, region, language, place of birth, etc”.

On the “political thesis” of these provisions enacted during the British period, the note says they (the provisions) did not contemplate “penalising of political doctrines”.

The sources said Thackeray is a political personality and no government would want to further a sensitive issue like the current one.

Under Section 153 of the IPC, “a mere chance provocation is not sufficient to justify conviction”, the note says, adding that there was no provocation in Thackeray’s purported speech.

Under Section 153A, “there must be the intention to promote such feelings (feelings of hatred among different communities or classes or sects and sub-sects of the same community) or such feelings should be promoted as the result of words spoken or written”.

The sources said: “This is the legal test that the law ministry has pointed out in Thackeray’s case.”

They also cited a petition moved in Calcutta High Court around 1992 which sought a directive to forfeit all copies of the Quran as it advocates destruction of idols encouraging hatred and disharmony among different religious communities. However, the petition was dismissed by Calcutta High Court.

The provisions are mainly for writings and scurrilous attack on basic religious books, the sources added.

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