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In a public speech, the younger Thackeray had asked his cadres to see to it that nobody from outside Maharashtra, the state to which Mumbai belongs, is employed in the state. The speech roused some listeners to violence that seriously injured several people and caused property damage.
This "son of the soil" argument and fiery speeches are not new in India, particularly in Maharashtra; neither is the violence that ensues after such a speech. In the past, the elder Thackeray has also incited violence in the state through public speeches.
In spite of this, both Thackerays remain free. The political parties they established are not prohibited. The prosecutions launched against these individuals never resulted in convictions.
This is no surprise in India, particularly in cases where the accused have threatened that more violence would follow if they were arrested. Nobody would dare to challenge them in a court of law; the state has neither the will nor the courage to provide protection to the witnesses. People like the Thackerays are the godfathers, or the religious mafia of India.
In 1994 during the genocide in Rwanda the Hutu Power Radio aired speeches that incited violence against the Tutsis by referring to them as cockroaches. The genocide that followed resulted in huge loss of life, bringing neverending misery to a nation and its people.
Hate speeches also played a significant role before and during World War II, resulting in the death of an estimated 6 million people. The Hutus responsible for the genocide and many others responsible for the genocide and systematic extermination of Jews during World War II were later prosecuted, and some convicted. Yet people like the Thackerays who have publically admired Hitler's ideology continue to retain political power in India.
Why is this possible in India? Existing legislation prohibits and criminalizes hate speeches. Yet the Thackerays command impunity because they support the fundamentalist Hindu party, the Bahratiya Janata Party. The BJP is the second largest political party in India.
Affiliation with a political party is a free ticket to impunity in India. Whether the party is in power or not does not matter. This is because law enforcement agencies know from experience that in a country with ever-changing political equations and affinities nothing could be taken for granted. This means the bottom line is never to act against anyone who has a position in any political party.
This "rule of engagement" is not adopted by the law enforcement agencies by choice, but by necessity. In the past 60 years such agencies have never been detached from political control. Appointments, promotions, transfers and disciplinary actions against a law enforcement officer are not often taken by any independent authority, but remain at the whim of politicians.
The main role of law enforcement agencies in India prior to independence was as a tool for social control. This role remain the same, the only difference being that the British have been replaced by Indian politicians.
When law enforcement agencies are used for social control, by default such agencies will have to be provided with impunity. This explains why law enforcement officers seldom face prosecution for crimes they may have committed. It also explains why every government, left or right, religious or secular, has resisted everything that would bring accountability and thus sanity to what is known as the law enforcement agencies in India.
India ratified the International Convention on Civil and Political Rights on July 10, 1979. Article 12 of the convention guarantees freedom of movement, Article 20 mandates the state to prohibit hate propaganda, Article 26 guarantees equality before the law without discrimination. Article 2, which is also common to several other international conventions and covenants, mandates that the state ensure domestic remedies for the breach of any rights enshrined in the ICCPR. In addition, the Indian Constitution also guarantees all the above rights. This is the theory; in practice these rights remain only on paper.
Societies tend to have conflicts and conflicts tend to violate rights. No right could be guaranteed by any state without an independent and disciplined law enforcement agency. This is because the law enforcement agency is the state organ directly responsible for receiving and investigating complaints. Only a proper investigation can lead to a successful prosecution in a case where a right has been breached. If this process were carried out independently, many stalwarts of the pseudo-democracy in India would end up in jail.
Indians have suffered people like the Thackerays for a long time. Some of these Thackeray clones have become ministers, and it is people like them who decide what the law enforcement agencies should do and should not do. Obviously, these decisions would never be against one of their clones.
The case against Raj Thackeray will be no different. It will remain just another number to be called out for years in some court's daily roll call. One more addition to the 29 million cases pending disposal before the Indian courts.
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(Bijo Francis is a human rights lawyer currently working with the Asian Legal Resource Center in Hong Kong. He is responsible for the South Asia desk at the center. Mr. Francis has practiced law for more than a decade and holds an advanced master's degree in human rights law.)
