India's National Magazine
From the publishers of THE HINDU
Vol. 16 :: No. 06 :: Mar. 13 - 26, 1999
ABOVE THE LAW?
A decade after the Bombay High Court found Bal Thackeray guilty of serious election offences, and six months after the Union Law Ministry was, on the basis of the court order, asked to issue a notification to strip him of his voting rights, the Shiv Sena supremo remains untouched by law.
THE Bharatiya Janata Party's genuflection to Shiv Sena chief Bal Thackeray extends beyond the Union Government seeking his permission to hold India-Pakistan cricket matches in the country. For six months, a Frontline investigation has found, the BJP-led coalition Government has stalled the process of the Union Law Ministry issuing a notification that would strip Thackeray of his right to vote for six years. The notification is overdue since the Election Commission (E.C.) had sent a recommendation to that effect to the President on August 14 last year following a Supreme Court judgment finding Thackeray guilty of violating election law. Although the Law Ministry has no power to delay the notification, obviously the larger enterprise of protecting Thackeray from the consequences of his crimes is the Government's priority here.
The matter has its origins in the Maharashtra Assembly elections of December 1987. The Shiv Sena ran its election campaign on a programme of hardline communal mobilisation, clearly seeking to build a platform for its rise to power five years later. Predictably, Congress(I) candidates who lost the 1987 elections moved the court against the Shiv Sena's tactics. Among the most prominent of the election petitions was the one against the election of Dr. Ramesh Prabhoo, who won the Vile-Parle constituency against the Congress(I)'s Prabhakar Kashinath Kunte. The case, which centred on speeches made by the Shiv Sena supremo, was in key senses a test of the party's political legitimacy.
Kunte's election petition in the Bombay High Court led to Thackeray being issued notice under Section 99 of the Representation of the People Act, and subsequently being named for the commission of election offences. The Shiv Sena chief had been central to Prabhoo's campaign, and his speeches formed the basis of Kunte's petition. Sub-section 3 of Section 123 of the Representation of the People Act bars appeals "by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language". Sub-section 3A further forbids the "promotion of or attempt to promote, feelings of enmity between different classes of the citizens of India on the grounds of religion, race, caste, community or language, by a candidate or his agent or any other person with the consent of a candidate".
The Shiv Sena chief's speeches could have left little doubt in any knowledgeable person's mind about the violation of election law that they involved. His first speech, given on November 29, 1987, appealed to "all my Hindu brothers, sisters and mothers gathered here"to "please send the Shiv Sena to the Legislative Assembly". Unless they did so, he warned, "it would be difficult for us to live because there would be (a) war of religions (and) Muslims will come". "We win an election with such votes", he continued, adding that he believed Muslims to be "snakes". "Who are these lande?" (Mumbai slang, a derogatory reference to circumcised people). "They should bear in mind that this country is of Hindus, the same shall remain of Hindus".
His second speech of December 9, 1987, was even more explicit. "The victory", Thackeray said of the Vile-Parle contest, "will not be mine or of Dr. Prabhoo or of the Shiv Sena but the victory will be that of Hinduism". "You will be instrumental in (this) victory and you should be instruments for the same. At last you have the right to get rid of the difficulties faced by your caste, creed, gods, deities and the Hindu religion". "Whatever Masjids are there", Thackeray asserted, "if one starts digging the same, one will find Hindu temples". "A person by the name of Prabhoo who is contesting the election in the name of religion (should be) sent ahead (to the Assembly)".
Thackeray made similar assertions at a third election speech at Vile-Parle on December 10, 1997. "It will do if we do not get a vote from any Muslim", he said. "If anybody from them is present at this place he should think for himself. I am not in need of their votes. But I want your votes". "You must send only Dr. Ramesh Prabhoo of the Shiv Sena", Thackeray concluded, "otherwise Hindus will be finished", "it will not take much for Hindustan to be green (i.e. Islamised)".
Newspapers reported these themes. The Mumbai Janmabhoomi Prawasi, for example, reported on December 9, 1987, that Prabhoo claimed in the course of an interview that "if he loses, it will mean that Hinduism has lost".
IN April 1989, the Bombay High Court upheld Kunte's appeal, rendering Prabhoo's election void. Both he and Thackeray, found guilty of election offences, moved the Supreme Court. It was only on December 11, 1995, that the three-Judge Bench consisting of Justices J.S. Verma, N.P. Singh and K. Venkataswami upheld the Bombay High Court decision. Ram Jethmalani, who is now Union Minister for Urban Affairs and Employment, was counsel for Thackeray and Prabhoo. He argued, unsuccessfully, that the word "his" religion in Sub-section 3 meant that only an appeal for votes on the grounds of Prabhoo's religion, as opposed to a general appeal for votes for a Hindu cause, were impermissible. Other grounds of appeal, including the argument that the Sub- section restricted the right to free speech were also rejected by the Supreme Court.
While the Supreme Court, after a long and somewhat opaque discussion of the nature of Hinduism, concluded that mere reference to Hinduism or to Hindutva in the course of a speech would not violate Sub-section 3, held that Thackeray's diatribes were indisputably illegal. "Since the appeal made to the voters in these speeches was to vote for Dr. Ramesh Prabhoo on the ground of his religion as a Hindu," the court held, "and the appeal was made with the consent of the candidate Dr. Ramesh Prabhoo, he is guilty of these corrupt practices". "For the same reason, Bal Thackeray is also guilty of these corrupt practices and, therefore, liable to be named in accordance with Section 99 of the R.P. Act of which due compliance has been made in the present case".
Justices J.S. Verma, N.P. Singh and Venkataswami made clear their hope that the judgment would serve a deterrent purpose. "We cannot help recording our distress at this kind of speeches given by a top leader of a political party", they recorded, "The lack of restraint in the language used and the derogatory terms used therein to refer to a group of people in an election speech is indeed to be condemned". "This", the judges concluded, "is essential not only for maintaining decency and propriety in the election campaign, but also for the preservation of the proper and time-honoured values forming part of our cultural heritage and for a free and fair poll in a secular democracy. The offending speeches in the present case discarded the cherished values of our rich cultural heritage and tended to erode the secular polity. We say this with the fervent hope that our observation has some chastening effect in the future election campaigns".
It was to have little effect, for no fault of the Supreme Court. Once it had passed its judgment, all that the law required was for the E.C. to meet and pronounce a sentence on both Prabhoo and Thackeray. That sentence was then to be communicated to the President, who would forward it to the Law Ministry for the issue of a formal notification. Neither the President nor the Law Minister have any discretionary powers in such matters, and must obey the E.C.'s decision. The MLA was unseated, but for reasons that are unclear, Thackeray's sentence was not even considered by then-Chief Election Commissioner, T.N. Seshan. Perhaps relevant here is the fact that Seshan later negotiated, unsuccessfully, with the Shiv Sena for a seat in the last Lok Sabha elections.
Finally, action was initiated on August 14, 1998, a full decade after the Bombay High Court had ruled that Thackeray had committed election crimes. Chief Election Commissioner M.S. Gill called a meeting to dispose of pending matters, and all three Election Commissioners decided unanimously to award Thackeray the highest possible punishment. The Shiv Sena chief was barred by the E.C. from voting in any State or national elections for a period of six years. This would have stripped him of one of the most fundamental rights of a citizen in a democracy. All that remained now was for the E.C.'s recommendations, which would have been a burning humiliation for any political leader, to be implemented.
That needed the President to order the Law Ministry to issue a formal notification. Reliable sources told Frontline that President K.R. Narayanan received the E.C.'s recommendation in the first week of September 1998, and passed it on to the Law Ministry in October. The matter figured in the press shortly afterwards, with reports in The Indian Express charging Rashtrapati Bhavan with stalling the move to bar the Shiv Sena chief from voting. The President's office then issued a clarification that it had indeed forwarded the matter to the office of the Law Minister. The controversy then died down and has since remained forgotten.
Six months after the Law Ministry was asked to issue the notification that would strip Thackeray of his voting rights, there has still been no action. Asked by Frontline, Law Minister M. Thambi Durai, a representative of the All-India Dravida Munnetra Kazhagam in the Cabinet, claimed that it was "untrue that my Ministry had received the President's letter several months ago". "The letter was only received recently", he said, "and the notification has only been held up because of the budget session being in progress". But proceedings in Parliament have no conceivable relationship with a notification on Thackeray. The Representation of the People Act grants the Law Ministry no discretion in the matter of handling a recommendation from the E.C., which means that the notification is a mere administrative formality.
There are serious doubts also about Thambi Durai's claim regarding just how long his Ministry has had the President's letter in its possession. On September 4, 1998, sources told Frontline, M.S. Gill wrote to Thambi Durai suggesting changes in the process of punishing those found guilty of election offences, a clear reference to the decision taken in the Thackeray case by the E.C. three weeks earlier. In that letter, Gill had suggested that a Secretary to the Commission be vested with the power to refer cases pertaining to all persons found guilty of election offences to the President, cutting out the existing cumbersome administrative process. Equally important, Thambi Durai's claim to Frontline flatly challenges the President's Office's statement on the matter.
But a plausible explanation for the BJP-led Government's handling of the affair is not too hard to trace. Desperate as it is for the Shiv Sena's support in the Lok Sabha as well as to keep afloat the Maharashtra Ministry, the BJP cannot afford to antagonise Thackeray. With elections due at the end of this year in Maharashtra, and the prospects of Lok Sabha elections looming large, the Shiv Sena supremo in turn cannot afford the humiliation of being stripped of the right to vote. The BJP's stubborn refusal to implement the law will not only enable Thackeray to avoid the consequences of paying for his election crime. It will make clear to all politicians of the Far Right that they may use religion for political purposes without having to pay the price, whatever the law, the Supreme Court and the Election Commission might say or do.