Hate speech: Adityanath isn’t the first powerful offender to be shielded from prosecution

And the BJP is not the only party to blame for this.

The Uttar Pradesh government’s denial of sanction to prosecute its chief minister for a 2007 hate speech case needs to be denounced, but was it unexpected? Won’t any state protect its own head of government?

Thanks to the constant media focus on Adityanath, the Uttar Pradesh government’s decision got front-page coverage. But the denial of sanction to prosecute must be a regular occurrence with all chief ministers facing cases. When the Bharatiya Janata Party’s Devendra Fadnavis took over as Maharashtra chief minister in 2014, he had 22 rioting cases against him. Who knows their status?

Maharashtra is no stranger to such official benevolence regarding powerful offenders. A similar decision taken in Mumbai may have happened two decades ago, but remains fresh in memory. Six cases against Shiv Sena chief Bal Thackeray were withdrawn in 1996, soon after he appointed his loyal follower Manohar Joshi chief minister of Maharashtra after the Shiv Sena won the 1995 state elections. At that time, Thackeray had boasted that no matter who he named as chief minister, the “remote control” of the government rested with him.

The withdrawal of the cases would not have come to light had it not been for the Srikrishna Commission of Inquiry into the 1992-’93 Mumbai riots, where Thackeray’s provocative writings in his newspaper, Saamna, during the riots featured prominently. The Commission was told that of the six cases against Thackeray that the Sena-BJP government had withdrawn, four related to his writings in Saamna during the riots. Overruling the government’s objections, the Commission ordered that the files relating to the withdrawal of cases be provided to it. What emerged was a fascinating lesson on how the high and mighty can be shielded from prosecution without breaking any law.

Four months after the Sena-BJP government assumed power in 1995, Kiran Wadivkar, who later became the Sena’s media secretary, wrote to Maharashtra Home Minister Gopinath Munde saying that it was time to withdraw the cases filed against the “nationalistic” newspaper Saamna by the “irreligious” Congress government “just to appease Muslims.” Immediately, the entire government machinery sprang into action.

The reasons given by senior officers to withdraw the cases are rich with irony.

On January 20, 1996, deputy secretary to the government SV Kalmanker wrote:

“In view of the changed situation at present, it would not be worthwhile to proceed with the prosecution… since the object of the administration of justice would not be advanced…”

Home secretary SG Iyengar endorsed his statement.

RD Tyagi, the police commissioner at that time, wrote:

“The sovereign power for withdrawal of prosecution is of the government alone; and in case such power is exercised for the consideration of public peace, public justice, social harmony, political interest etc, the courts do not interfere. Considering the changed situation at present, the Government can take appropriate decision for withdrawal.”

After retirement, Tyagi, the seniormost policeman to be indicted by the Srikrishna Commission, briefly joined the Shiv Sena.

The concerned magistrate agreed, and the cases were withdrawn in October 1996.

However, the Sena could not get its way every time. Magistrate KH Holambe Patil refused to let the Sena government withdraw one case against Thackeray. In 1991, Shiv Sainiks had attacked journalists protesting outside Sena Bhavan in Dadar, Mumbai. Thackeray was accused of having incited the attack. The Sena government appealed against Patil’s order, but by the time the matter came up in the Bombay High Court, the Sena had been voted out and the Congress was in power. Surprisingly, it supported the original withdrawal plea.

Photo credit: Vivek Prakash/Reuters
Photo credit: Vivek Prakash/Reuters

Congress inaction

But perhaps that is not so surprising given its record of action – or inaction – against Bal Thackeray. The Srikrishna Commission was informed in 1997 that of the 24 cases filed against Bal Thackeray since 1984 – the year major communal riots broke out following his speech in Mumbai – 16 cases filed on the charge of promoting communal enmity could not be proceeded with as the Congress governments – which ruled the state from 1984 to 1995 – had not given sanction for prosecution.

The only time the Congress sanctioned prosecution against Thackeray was when its hand was forced. Immediately after the riots, former chief secretary JB D’Souza and journalist Dilip Thakore filed a petition in the Bombay High Court urging that the government be directed to prosecute Thackeray for the Saamna editorials he wrote during the riots. The government knew that it would have to explain to the court why it had not taken any action against the man who had incited violence against Muslims even while the city was in flames. So, on the eve of the court hearing, Sharad Pawar, who had taken over as chief minister immediately after the riots, gave sanction for four of the nine cases filed against Thackeray for his writings in Saamna.

Of course, once the petition was disposed of, Pawar took no further action. So it became easy for the Sena to withdraw these cases two years later as the prosecution had not moved an inch.

When the Congress came back to power in 1999 along with the Nationalist Congress Party, it continued to remain indifferent to Thackeray’s provocative writings in Saamna. Instead of prosecuting him for his contemporaneous writings, Home Minister Chhagan Bhujbal, a Thackeray loyalist turned bitter foe, dug out two old cases related to his writings in Saamna during the riots. These cases had been pending investigation since then. Amid high drama, the Sena chief was arrested and taken to court, where the magistrate dismissed the cases as “time-barred” and discharged Thackeray.

Though Bhujbal got the government to immediately appeal against this order, and even appointed senior criminal lawyer PR Vakil as special public prosecutor, he did not ensure that the appeal was expedited. It came up in 2007, and was again dismissed by the Bombay High Court on grounds of delay. By then Vakil had passed away, and Bhujbal was no longer home minister.

But it is not only Bal Thackeray who has benefitted from Congress generosity. Raj Thackeray’s followers attacked North Indians across the state in 2008, and two people died in the violence. The Maharashtra Navnirman Sena chief justified these attacks in an article in the Marathi daily, Maharashtra Times. Cases were filed against him but nothing has come of them.

Photo credit: Sandeep Mahankal/IANS
Photo credit: Sandeep Mahankal/IANS

In June 2014, Hindu Rashtra Sena activists killed Mohsin Shaikh, a young Information Technology professional, in Pune. Their leader, Dhananjay Desai, had just given one of his usual inflammatory speeches against Muslims. Desai was arrested because of the national outcry. But this was not his first such speech. He had 23 cases against him but had never been arrested by the Congress-Nationalist Congress Party regime since he started his rabble-rousing career in 2004.

As Mumbai riot victim Farooq Mapkar said bitterly: “When in power, the Hindutva parties do their best to save their own from prosecution. But Congress-NCP governments didn’t even withdraw those riot cases against Muslims that the Srikrishna Commission had called bogus.”

SP and BSP to blame too

The 2007 case against Adityanath for which his government has refused prosecution sanction is not the only one against him. His 2014 election affidavit reveals 12 cases, including two more offences in connection with promoting communal enmity, dating back to 2000. From 2000 to 2017, the Samajwadi Party’s Mulayam Singh Yadav and the Bahujan Samaj Party’s Mayawati, who had a reputation for strictly upholding law and order, ruled Uttar Pradesh. Why did they not start prosecution against the Gorakhpur MP? Indeed, the only time he was arrested (in 2007), Chief Minister Mulayam Singh Yadav not only transferred the district magistrate and senior superintendent of police who ordered and executed his arrest, but also suspended the district magistrate that same day. Those who took their place were ordered to pay their respects to Adityanath in jail, according to a Tehelka report by Apoorvanand.

These days, when Muslims are being killed with frightening regularity, it is tempting to look back with yearning towards the days of the so-called secular Congress. But it is the fake secularism of the Congress, the Samajwadi Party and the Bahujan Samaj Party that led hate speech offenders such as Bal Thackeray, Dhananjay Desai, Adityanath and the Owaisi brothers from strength to strength.

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