[sacw] SACW Dispatch #2 | 26 July 00

[Harsh Kapoor]

South Asia Citizens Web Dispatch #2.
26 July 2000
http://www.mnet.fr/aiindex

#1. Kashmir: A plea for reason, for imagination, for sanity
#2. India: Living Together Separately
#3. India: 'Popular Indictment of Bal Thackeray Case Dismissal'
_____________________

#1.

KASHMIR: A plea for reason, for imagination, for sanity

- Lalita Ramdas, June 2000

A group of us representatives from Civil Society from several states of
India were recently in Srinagar, Kashmir, attending the first two day
Convention organised by the newly formed Federation of Civil Society
Organisations . We came from a variety of disciplines and sectors =96
education, health, psychiatry and psychology, peace and human rights
activists, academics , journalists and a former service Chief. The members
of the National Committee of the Indian Chapter of the Pakistan India
Peoples Forum for Peace and Democracy [PIPFPD] were prominent among
participants since a meeting of the National Committee of PIPFPD was also
held in Srinagar a day prior to the Convention.

It is a fact that hardly needs repeating, that Jammu and Kashmir has been
in the grip of violence and militancy for the past ten years. While for the
most part we have been aware of the assault on human rights and the
collapse of civil society, it is only after this visit that we could grasp
the enormity of the tragedy that has been visited upon the people of this
region. The four days we spent in Srinagar were crammed with an
extraordinarily rich and varied spectrum of images, conversations,
personalities, debates and dialogues =96 with almost all the major factions=
,
members of the Huriyat, and the ruling political and bureaucratic
leadership.

If at all generalisations are possible =96 then it is to say that we were
shocked and moved at the extent of human suffering, the levels of anger,
despair, helplessness and frustration, which were evident everywhere and
among every section of the people with whom we were able to meet and
interact in the all too brief period of our visit. And it would not be
inaccurate to say that there was an overwhelmingly spontaneous and
unanimous feeling that `something had to be done =96 done URGENTLY =96 and =
by
members of civil society who were above all seen to be sympathetic and
could win the trust of similar groups in the valley=92.

At the risk of adding one more generalisation =96 let me also say that
contrary to all popular perceptions =96 especially fuelled by thoughtless
media and some vested interests =96 there was no feeling of hatred or anger
directed at people from the rest of India; nor did it have anything to do
with ones religious identity. If anything, people were at pains to
reassure us that the special feature of Kashmiri culture has always been
the total integration of cultures and communities without rancour and ill
feeling of any kind, and that this is what they want to preserve at all
costs.

Khir Bhavani Festival On our very first day, while the National Committee
of the PIPFPD were deliberating, some of us more adventurous souls decided
to drive out to Ganderbal , an hours drive away, to visit the Kheer Bhavani
shrine for the annual festival =96 the most important `Pandit=92 festival i=
n
the valley and which attracts Kashmiri Hindus from far and near.
While the road to and the area around the shrine itself was chock-a-block
with olive green military and police vehicles =96 the predominant images we=
re
of bonhomie and re-unions; of faith and devotion =96 people of different
persuasions seemed to be present, including a few women who were clearly
Muslim; and those selling the `diyas=92 (earthen lamps), and floral
offerings, were also from the Muslim community living around the shrine.
Our random conversations with several of those who had come to pray or just
to have a picnic with family and friends, indicated that it was not only
the Kashmiri Muslim who was tired and disgusted , but this was a feeling
widely shared by Hindus too =96 many of whom were equally vociferous that
they just wanted India and its armed forces OUT " leave us alone we will
find our answers on our own" and further "Yeh tho Hindu aur Mussalman ka
masla nahin naphrat karvaya ja raha hai" {this is not a Hindu-Muslim
problem hatred is deliberately created by vested interests)

The anger is clearly focussed and directed at the continuing betrayal of
Kashmiri hopes and aspirations by the Indian State, of which the visible
[and ugly] face is undoubtedly the overwhelming and oppressive presence of
the Military and para-military forces all over Jammu and Kashmir =96 but
especially in the Valley. Srinagar city =96 [and we travelled around
extensively] =96 resembles a city under occupation, with ugly bunkers at
almost every other street corner =96 all manner of grotesque armoured
vehicles carrying helmeted troops with guns aimed and ready to shoot. A
dying Dal Lake still full of shikharas gliding up and down, today also
reverberates with the roar of powered fast patrol boats which not only
pollute, but also cause waves in the otherwise placid waters, thus
bringing forth angry responses from the normally easygoing boatmen.

The walk up to our favourite Shankaracharya shrine was like none of the
walks we had taken in earlier years =96 there is a constant presence of the
army at every turn =96 and one wonders what the wise sage would have said h=
ad
he been alive today. But the image that stands out in ones memory is of a
rusting signboard at one of the several graveyards and cemetries dotted
across the city, final resting place to countless young boys and men -
`martyrs=92 and `fallen heroes=92 to the Kashmiris, and `militants=92 and
`terrorists=92 to others, bearing this inscription:

MASTER SHAHEED YAWAR SAYS
"DO NOT SHUN THE GUN
MY DEAR YOUNGER ONES
THE WAR FOR FREEDOM
IS YET TO BE WON"

Admittedly, the intensity of the experience threw up a multitude of
impressions, emotions and questions =96 each of them deserving of
amplification, of reflection and analysis, of being viewed through several
prisms. This is by no means the first such attempt to attempt to unravel
the gigantic complexities of the human, political, psychological and
historical dimensions of the situation in the valley.

THE PRIORITY ISSUES IDENTIFIED

One hopes that this set of personal reflections will capture and
communicate the sheer waste and senselessness of what is going on =96 the
slow but sure deadening of all human responses and of humanity itself =96 a=
nd
the urgency to ACT before it is too late. Yet one constantly wonders if
there is indeed the luxury of time any more especially when it appears that
no one is listening and no one really cares, and that we are truly facing
in the words of Arundhati Roy - `the Death of Imagination=92 all around us=
.

The people of Jammu and Kashmir are facing the following:

* Deepening communalisation of J&K polity and society
* Total breakdown of normal life and economic activity
* Near absence of any form of effective governance
* Overwhelming presence of Security Forces creating a virtual war zone
* Widespread anger and disillusionment with the Government of India
* Growing numbers of Custodial Deaths and Disappearances
* Mistrust and Insecurity =96 especially about the men in uniform
* Rape and sexual harassment of women =96 (primarily by the occupation
forces, but by militants too)
*Extortion and widescale corruption .
* Militancy and Terrorism =96 fear and insecurity among military and para
military leading to further brutalities.
*A vicious cycle of Violence, Suspicion and Fear and Rumours
* Acute Psychological Trauma of people at all levels
* Hopelessness among the young people
* Breakdown of educational,health systems
* A sense of utter and total isolation

The list is endless =96 and as we listened to speaker after speaker, it was
clear that the very existence of a Forum and a Platform within which to
articulate the pent-up feelings of thoughtful men and women was a healthy
and much needed development. The repression and deliberate denial of the
fundamental democratic freedoms of the right to protest and organise ,
whether by their own leadership in the valley, or by central government
policies, had caused irretrievable damage to the core fabric of civil
society.

This is not the moment or place to even attempt to ascribe responsibility
for all the things that have gone wrong at the level of policy over half a
century of playing politics. Suffice it to say, that each one of us felt
that we =96 as representatives of so-called `civil=92 society in the so-cal=
led
`largest democracy=92 =96 had to take our own share of blame for turning a
collective blind eye as it were to the realities of what was going on in
our own backyard.

IS IT IN FACT TOO LATE?

There was no way we could look people in the eye and answer the questions :
"Where have you been till now? Did you not know that Human Rights have been
trampled underfoot for decades in the valley? What has made you come now
when it might already be too late?'

The answer to that question lies in what ones perception is regarding the
entire issue of State and Nation =96 of constitutional promises made and
promises broken =96 of citizenship =96 autonomy =96 ownership ; of the conc=
ept
and the practice of democracy , of peoples and territories 'of hearts and
minds'.

If the underlying perspective is that `Kashmir is an integral part of India
and must be kept if necessary by force, and by shedding our `last drop of
blood=92 =96 then my own personal feeling is that it might in fact be 'too
late'. When mass hysteria is whipped up by an uncaring and insensitive
media and an even less informed and sensitive political leadership, in
response to a historically legitimate resolution calling for the promised
`autonomy=92 - then it is clear that the Kashmiri perception of Indian
attitudes are by and large true. And this is basically summed up in the
phrase we were to hear over and over again =96 "it appears that India {and
Pakistan too for that matter] is not really interested in the people of
Kashmir, only in the land and territory. This is why they don't mind if we
are slowly destroyed and finished off, and every promise made is trampled
upon"

Although the above attitude may also be true for other parts of the
country, the present and compelling reality is that ordinary citizens in
the Valley are being brutalised daily =96 and what this has done to the
collective psyche of a people is there for all of us to see, if only we
wish to. The tragedy is literally that "there are none so blind as those
who do not wish to see" =96 and this virtually sums up the overall attitude
of the Indian state =96 politician, bureaucrat, the military and the citize=
n
alike. It might also be pertinent to add, at this point, especially when
we are witnessing the absurdity of the kind of language that is being used
around the autonomy issue =96 from secession, to treason, to disloyalty and
balkanisation =96 that the average Kashmiri does not necessarily want the
"Pakistan option". Given the choice, and given the disillusioning
experience of being `a part of India=92 over the past half century, today
most Kashmiris find the 'Azadi' option the most attractive, even if the
world tells them it is impractical.

Several political parties have reacted strongly, emotionally and, for the
most part, thoughtlessly, when they claim that the demand for autonomy will
open the doors for the "break up" of the country. There is a real level of
insecurity as as well as depth, in our positions on this question it
appears =96 one could even say a complete lack of 'professionalism'..
There is no other explanation for the way in which the issue of Kashmir has
been handled, or for that matter, the North East. For the most part, people
have begun to regard Kashmir as more of nuisance value, which they would
rather not think about since they have no idea as to the real issues =96 an=
d
it is therefore only when some kind of perceived act of aggression or
likely relinquishing of territory surfaces, that the outcry of indignant
nationalism is loudest. Sadly too, in the popular imagination Kashmir has
also come to be equated simplistically as yet another `Hindu-Muslim=92 issu=
e,
with overtones of Indo-Pak rivalry and a battleground for repeated trials
of strength.

In a perceptive piece entitled 'The Principle and the Realpolitik' in a
recent issue of HIMAL, Navnita Chadha Behera , referring to the popular
perception that Kashmir wants to secede and therefore start the `break-up
of the Indian Union', has this to say about `autonomy': "Little do they
realise that Kashmir stands not as a problem but as a potential answer to
the problems of the Union. For Article 370 of the Indian Constitution,
granting special status to Jammu and Kashmir state, is a sound and
thoughtful example of an innovative political and constitutional mechanism
geared to the social realities of India's plural and diverse polity. It has
the seeds of an alternative model of state-making =96 a path that was not
taken by the nationalist leadership of modern India."

THE PRO-ACTIVE POLICY IN ACTION?
* Alas, history has shown how far from that ideal has been the reality =96
and today when ethnic identities are re-asserting themselves across the
geographical space we term India, the strains of demonstrating `allegiance
by sub-national identities to the overarching national identity creates a
dominant-subordinate relationship, the recipe for conflict. We are a
notoriously a-historical people, and we will not learn the lessons of
recent history =96 that nowhere in the world has it been possible to hold o=
n
to territory where one does not have the full support and win the `hearts
and minds of people'. The more we pump men and arms and machinery into the
valley, the less chances we have of keeping the Kashmiris with us in any
meaningful sense of that word.
Within hours of our arrival in Srinagar, our heads were reeling with the
abbreviations of the multiplicity of military and paramilitary forces
present =96 from the traditional army to paramilitary like the BSF, the CRP=
F,
the RR, and ofcourse the dreaded new formations called euphemistically =96
SOG (Special Operations Group), and STF (Special Task Force) =96 by common
consent as notorious as any killer squads in any part of the world.
=20
THE STORY OF RAFIQ BAQAL
Almost as if designed to bring home to us the terror that rules life in a
once peaceful valley, it was on the third day of our visit that the brutal
attack, torture and murder of Mohammad Rafiq Baqal by a small group of BSF
men took place . Rafiq, [a family friend of one of the organisers and
founder members of the Federation of Civil Society Organisations], and a
group of his friends were returning home from a marriage when they were
stopped, ordered out of the car and attacked. A sadistic company commander
who was well known for taking pleasure in random cruelty and killings =96 h=
ad
had it in for Rafiq , an independent minded shopkeeper who refused to show
any special favours to anyone =96 be they uniformed or civilian. So while
his friends were allowed to run away, Rafiq was beaten mercilessly, on the
pretext that he was carrying grenades and RDX in his car, and despite his
loud pleas that he had a family and small children =96 was finally shot and
his body was deliberately left lying on the roadside for over half a day
until the family were allowed to claim it. For the first time in recent
month, thousands came out on to the streets in silent, peaceful protest,
despite some brutality from the local police. {Later we also heard that the
BSF guy has been punished =96 but this is unconfirmed, and certainly not ma=
de
public}

We visited the family the same evening =96 a numbing experience even for
someone like myself who had spent days and nights with the traumatised
Sikh widows of the 1984 Delhi riots. But the dominant image was one of
grief inextricably interwoven with anger and defiance =96 through their tea=
rs
they said to me =96 "how do you expect us to feel anything but hate and
violence for those who do this day after day to innocent people? And this
we do not expect or forgive from a so-called disciplined force.
Don=92t shed tears sister =96 for how many people in how many homes will yo=
u
cry? We have learned to bury bodies in the evening and carry on with our
lives, not knowing who will return home the next day!"

THE CONTINUING SAGA OF `DISAPPEARED=92 PERSONS
Parveen Ahangar is an impressive woman by any standard. She has ploughed a
tough and lonely furrow ever since her son was taken away for question one
fateful night almost a decade ago. She knows when, by whom and where he was
taken =96 but till today the authorities claim they do not know who he is a=
nd
if he is dead or alive. She has, on principle, refused the offers of
financial compensation from time to time. This was the tragedy that
catalysed a form of struggle and led Parveen to form the `Association of
Parents of Disappeared Persons=92 . Parveen has almost single handedly,
[helped by a few already overworked lawyers and volunteers], been able to
bring together other mothers and parents of the missing boys, and initiated
efforts to document, file cases in the Supreme Court of India . A small
group of us spent time in Parveen's small home in the heart of the city,
met several parents, and heard the familiar stories of extortion,
heartlessness, cruelty and many knocks on many closed doors, in search of
justice.

LESSONS TO BE LEARNED
Every time a Rafiq Baqal is tortured or killed, every time a beloved son,
brother or husband is captured, every time a woman or girl is harassed or
raped =96 let us be clear that India , and her 'ambassadors in uniform', wi=
ll
earn another thousand enemies. When will we ever learn, , "that the best
way to address secessionist and separatist demand lies not in fighting or
suppressing the manifestations, but removing the raison d'etre=92."( Navnit=
a
Behera) Alas, in Kashmir it seems we are not even willing to listen to the
voices of dissent

A HEALING TOUCH
However, through all the trauma, the bloodshed and disillusionment, I still
believe that it is still possible to reach out to the 'hearts and minds' of
the Kashmiri people who continue to hold on to the tangible factor of their
"Kashmiriyat" as a kind of beacon which will keep them from losing all
sense of their rootedness. And for this it is desparately important to try
and provide a `healing touch=92 to a psyche which has suffered deep pain an=
d
betrayal. But beginning a process of healing is an imperative which has
less to do with 'restoring the image of India', but everything to do with
enabling a shattered and broken people to regain confidence in themselves
and their abilities as also to regain a belief in the positive aspects of
human values, regardless of which religious, national or political group
they represent, or what the final political decisions might be.
=20
* There are several possibilities for intervention and collaboration
between NGOs and likeminded groups in Kashmir and other parts of India.
However, before moving on to the practical dimensions of what can be done,
let me also add that in my own view =96 the healing touch for Kashmir must =
be
provided not by India alone, but simultaneously by Pakistan too. And it is
for this reason that the position taken by some of us, and by the PIPFPD,
has a logic which is sound =96 namely that there are indeed three players i=
n
this drama =96 the rulers of Pakistan, India and the people of Kashmir. We
must begin a dialogue with PAKISTAN =96 better to talk with the military th=
an
with the Mullahs. All Indian protestations about not wanting to
`internationalise=92 KASHMIR must be recognised for the hollow bombaast tha=
t
they actually are. KASHMIR IS ALREADY INTERNATIONALISED =96 and very soon w=
e
will lose what little links there are. The sooner this is recognised by our
leadership, and our people, the better.*
It is when all of us set aside our narrow, territorial, religio-
nationalist agendas and start thinking of the future of an entire people
and a civilisation, that we will truly start a dialogue without which there
can be no long term solution. And this alone can throw up some completely
unorthodox `blue-prints=92 for a new polity which might enable a
restructuring of states and a transformed relationship with
sub-nationalities across the region. Mahatma Gandhi's words are still so
relevant : "Kashmir will be the title as well as the test of India's
future."

- Lalita Ramdas, Village Bhaimala, Alibag
______

#2.

Indian Express
26 July 2000
Op-Ed.

LIVING TOGETHER SEPARATELY

by Mushirul Hasan

The syncretistic and synthetic ethos of the Indian civilisation popularly
known as India's `composite culture' is a pervasive notion as well as a
real historical experience shared by many Indians and non-Indians, which
have been carried in varied forms and meanings across time and space in
theregion. To them, the genius of India expresses itself in a unique way
of accepting, assimilating and synthesising rather than rejecting diverse
patterns of beliefs, thoughts and actual living of an infinite variety
ofpeople and cultures into an inclusive, variegated and complex tapestry
of life and culture. This is what is traditionally epitomised as India's
'unity in diversity', and perhaps more meaningfully described as `living
together separately'.

In the words of Humayun Kabir, one of the early and best exponents of
India's composite culture: "The story of India's culture unravels the
secret of that vitality and that wisdom. It is a story of unity and
synthesis, of reconciliation and development, of a perfect fusion of old
traditions and new values.''

Professor Asim Roy, scholar at the University of Tasmania in Hobart
(Australia), has delineated, in a note, how in the last couple of hundred
years of the syncretistic tradition and perception have been challenged
and undermined at times by various contesting ideologies. First, the
'orientalist' scholarship almost exclusively based on Hindu, Buddhist and
Islamic religious and other texts constructed and helped to perpetuate
exclusive and competing, if not conflicting, models of religious-cultural
traditions in the region.

Ignoring the intricate and fascinating processes of interaction of living
religions and cultures in India, especially at the level of the
masses,orientalism contributed to the construction of barriers among
diverse cultural traditions. The second serious challenge came, at a
somewhat later stage, from the Islamic `essentialists' and the champions
of Muslim separatism. The third, which emerged and almost ran parallel to
that of the Muslim separatists, is represented by the proponents of Hindu
nationalism.

Subdued in the late colonial and early post-colonial decades, Hindu
essentialism has gained political momentum and stakes in India.

The historiography of the `composite culture' reveals its strong
susceptibility and responsiveness to its changing political contexts. The
clearest evidence lies in the fact that the bulk of its literature belongs
to the last six or seven decades a period in which the nascent Indian
nationalism, liberalism and secularism found themselves seriously engaged
and challenged, both intellectually and politically by religious
nationalists anchored in either political Islam or political Hinduism or
other religious faiths.

The colonial context of the imperialists' denigration and opposition to
Indian nationalism, prior to the internal challenge and direct
interventionon a serious scale, provided a congenial political climate for
the persistence and growth of the 'composite culture' as reflected in the
shared experiences of millions of Indians. Many nationalist leaders,
writers and thinkers as well have contributed to rearing the edifice of
this culture.

The political and cultural momentum of Muslim separatism reached its most
critical stage in the 1940s. It is not surprising that the year before
Indian Partition saw the publication, in 1946, of powerful expositions and
defence of the composite culture by Jawaharlal Nehru, Rajendra Prasad,
Asok Mehta and Achyut Patwardhan, and Humayun Kabir. After a brief lull in
the wake of the stunning reality of the Partition, the debate was revived
in the early 1960s as a part of the struggle against the communal uses of
history from both the Hindu and Muslim viewpoints. Between 1957 and 1961,
the Pakistan Historical Society came out with a four-volume edition
entitled A History of the Freedom Movement. Around the same time the
Bharatiya Vidya Bhavan began publishing volumes from a distinctly Hindu
point of view. R.C.Majumdar, general editor of the series, echoed the
Muslim separatists 'assertion that Hindus and Muslims could never come
together. All this led to a renewed interest in finding the common grounds
in history.

The concept of the `composite culture', comments Prof Roy, has been
politicised all around. The liberal and Marxist critique, he argues, has
found it expedient to use it politically to combat communalism and other
forms of sectarian strife, while the Muslim separatists and the champions
of political Islam as well as their saffron-robed counterparts of
`Hindutva' or political Hinduism have targeted it to undermine this notion
for their own political reasons. "The chauvinistic claim for a pan-Indian
Hindu cultural monolith embodied in Hindutva,'' he points out, "assumes
much greater importance today in light of the political power vested in
the Hindu-orientated political parties.'' The argument of
`pseudo-secularism' has been deployed by them to sap the foundation of a
multi-cultural state.

They have appropriated the British divide-and-rule paradigm of Hindus and
Muslims as separate civilisational entities that cannot survive together
in peace. Also, doubts have already been expressed in these circles
concerning the historical legitimacy of the syncretistic process in the
making of India's `composite culture', with the corresponding claim made
for a reconstructed and exclusive Hindutva.

The issue at stake is the role and impact of `dominance' and
`intervention' in relation to culture and its reformulation. What we need
to consider, says Prof Roy, are the following questions: Does the
syncretistic culture have a basis in history? Or is it a convenient
product of India's nationalist aspiration? Imagined or real, does or can
this tradition sustain our cultural continuum through the new millennium?
What are the cultural as well as the political fallouts of the possible
demise of the syncretistic values? How essential is it for the continuance
of federal and democratic structure, and for India's viability and
survival? Never before has there been so muchof urgency in re-examining
the historical basis of this culture.

Prof Roy has sensitised me to three broad themes. First, the making and
development of the `composite culture', from ancient through medieval to
modern and contemporary times, and the nature, form, content, meaning and
symbolism of the syncretistic traditions at the elite, popular and
regional levels. Second, we need to scrutinise the historical relationship
between the syncretistic and other rival traditions in the pre-colonial,
colonial and post-colonial stages and the role and the circumstances of
intervention and its cultural and political implications. Finally, the
critical relationship between India's cultural formulation and its
political future, with particular reference to democracy and federalism,
must command our immediate attention.

Copyright =A9 2000 Indian Express Newspapers (Bombay) Ltd.
______

#3.

Tehelka.com
26 July 2000

'POPULAR INDICTMENT OF THACKERAY CASE DISMISSAL'

Mumbaites who had been struggling to cage the Shiv Sena chief feel let
down by his virtual acquittal, reports Rinku Pegue

New Delhi, July 25 It was a letdown for those Mumbaites who had been
struggling to cage Shiv Sena chief Bal Thackeray. After 10 full
tension-wracked days, Mumbaites discovered that there is no case against
its most intimidating citizen, Bal Thackeray. A magistrate in the lower
court of Bhoiwada in north central Mumbai dismissed the case against him on
grounds that it was brought in a bit too late.

The dismissal has not gone down well in Mumbai with people who have been
fighting the Sena chief's unashamedly communal politics. " I am shocked by
the decision," says H Suresh, former judge of the Mumbai High Court.
Justice Suresh was instrumental in bringing out Peoples Verdict, a report
on the Mumbai riots, within six months of the event.

Suresh feels that "the government must have definitely bungled in
presenting the case, otherwise how could the reasons for delay in
prosecuting Thackeray not be accepted? How can anyone overlook the fact
that the vitriolic action of Thackeray directly causing 10,000 deaths,
100,000 displaced, and destruction of property worth Rs 4,000 crore?" Such
grave events should have a direct bearing on the matter, he said. "It
is Sharad Pawar who has to be taken to task after the judge dismissed the
case as time-barred," points out Javed Anand, editor of Communal Combat, a
magazine published from Mumbai. Sharad Pawar was the chief minister when
the First Information Report (FIR) was lodged by the Dadar "It is Sharad
Pawar who has to be taken to task after the judge dismissed the
case as time-barred" police station. The question Anand asks is: why did
Pawar keep the file pending for nearly two years?

"The dismissal of the case is serious as Thackeray has a 32-year history of
inciting communal violence," says Anand. "It started with the Gujaratis,
then the South Indians, and now the Muslims."

Nikhil Wagle, editor of Mahanagar, who has also been a victim of
Thackeray's inability to take criticism, says, "I am shocked by the
decision. If such is the attitude of the judiciary, then no goonda will
ever be caught."

He adds, "It is doubtful whether it is technically correct to dismiss the
case as time-barred. How could the four years of Sena-BJP governance in
Maharashtra and its implications be ignored?"

Legal luminaries were also surprised. Dr Abhishek Manu Sanghvi, former
solicitor-general, minces no words when he says, "The very nature of the
words used in 1993 by Bal Thackeray in Saamna is ex-facie so patently
inflammatory that it would squarely fall under section 153 (A) of the IPC,
which was designed specifically to combat communalism."

According to Sanghvi, the delay in prosecuting Bal Thackeray should have
been recognised for the simple reason that for five of the past
seven-and-a-half years, the Shiv Sena government was in power and used its
clout to brush the case under the carpet.

Kapil Sibal, senior advocate in the Supreme Court, says, "The case against
Thackeray is not so simple as not to merit going into the reasons for the
delay in initiating prosecution." Section 473 of the CrPC allows a judge to
prosecute a criminal case even though the limitation period of three years
have elapsed.

"After all, we cannot ignore the fact that the Sena-BJP government in
Maharashtra had rejected the Srikrishna Commission report (indicting
Thackeray) through its Action Taken Report," says Sibal. In such a
scenario, it would have been foolhardy to expect the sanction for
prosecution to be permitted on time.

According to senior advocate Indira Jaising, "Notwithstanding dismissal,
the case still has a good chance of appeal in the higher court. The fact
that the lower court judge alluded to tension in Mumbai city while taking
note of the case suggests that a political decision was given over legal
considerations."

In fact, what is intriguing about the whole drama is how the wily Manohar
Joshi (as chief minister of Maharashtra) forgot to withdraw this particular
case and throw it in the dustbin of history. The Sena chief is not going to
forgive him in a hurry.

copyright =A9 2000 tehelka.com

______________________________________________
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informal, independent & non-profit citizens wire service
run by South Asia Citizens Web (http://www.mnet.fr/aiindex)
since 1996. Dispatch archive from 1998 can be accessed
by joining the ACT list run by SACW. To subscribe send
a message to <act-subscribe@egroups.com>
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