A week has passed since the death of Mr Bal Thackeray. The dust worked up by four million tired but patient feet on the streets of Mumbai has settled. The celebrities who came out and paid their respects to him, have now returned to their jobs and services. The opinion makers and editorial writers have moved on to another story, and the debate anchors have found something else to froth about.

All is calm.

Hardly so. Reading and digesting tens of op-eds and articles and photo essays on Bal Thackeray all through this past week has had its effect. I have begun to seriously doubt the mechanism by which our democracy has been operating for decades. How these mechanisms, these systems are never seen as the first thing to be set right by governments that come to power is beyond me. Perhaps it is also beyond those who operate these systems. This mechanism – or system – goes by another name. Justice. The delivery of it, the denial of it, the mockery of it.

Ei incumbit probatio qui dicit, non qui negat. “Proof lies on him who asserts, not on him who denies.” In other words, a man is innocent until proven guilty. This is an axiom of jurisprudence in this country. We break this axiom every day.

Countless essays – some scathing, others scholarly – declared Bal Thackeray to be guilty of the most heinous of crimes. The principal orchestrator of the 1993 Mumbai riots. They called him a godfather, a don, a thug who terrorised the city and held it to ransom. I, too, have an opinion on Bal Thackeray. It is not flattering. He was a divisive figure, the ruler of a constituency that he unswervingly nurtured, and he understood perfectly what that constituency wanted. And I also agree with Praveen Swami when he argues in his masterful essay (http://www.thehindu.com/opinion/op-ed/an-authentic-indian-fascism/article4112448.ece) that Thackeray was the torchbearer of Fascism in this country. What’s more, I am quite certain Mr Thackeray would have rather enjoyed Swami anointing him so, even called him over for a sip and a puff.

But is he to be condemned simply because he was a fascist? In a nation of 1.2 billion, why is there space for communists and capitalists but none for fascists?

The simple fact is, in any culture, any society, any country – fascists exist. Do away with the concept of plurality if you don’t want them to. But until the time we call this country a democracy we must allow space for differing views and viewpoints. Bal Thackeray exercised that most hallowed of rights that Article 19 (1) of our Constitution provides us, the right to free speech. That those under his tutelage prevented others from exercising this same right is not Thackeray’s fault, but rather of our thoroughly bankrupt state machinery. It is not that rules aren’t broken in other countries or that riots don’t happen – who can forget Los Angeles and London – but those who are caught are dealt with swiftly; they are handed exemplary punishments that act as a deterrent to other like-minded marauders. If that was not the case, British National Party, the fascist ultra-right-wing party in UK would have had more clout and more MPs in the British parliament than what it does currently – namely, none.

I believe Bal Thackeray is innocent of murderous crimes, simply because he was never proclaimed guilty in a court of law. Why is this so difficult to understand? Why is this argument so hard to digest – do we not believe in the concept of “presumption of innocence”? Is Ei incumbit probatio qui dicit, non qui negat really Latin to us?

Soon after the ’93 riots, the State appointed the Justice Srikrishna Commission to look into the whole affair. The Commission submitted its report in 1998 (http://www.sabrang.com/srikrish/sri%20main.htm). These last few days I have done little else but read it. It is an incredible document, mind-boggling in its detail and acuity. Five hundred and two (502) witnesses deposed before the commission, 2,126 affidavits were filed, more than half of them by members of the public. Fifteen thousand (15,000) pages of documents were termed “exhibits” and scrutinised.

The findings of the commission were a severe indictment of the Mumbai Police, the Maharashtra Government, the Shiv Sena, and last but not least, Bal Thackeray, who the Commission wrote “like a veteran General commanded his loyal Shiv Sainiks to retaliate by organised attacks against Muslims”.

The Commission based this singular assertion largely on the testimony of three witnesses out of the 500-odd that came before it. Riot cases enquiries are notoriously complicated to reach a determined conclusion of guilt and complicity – remember, this was the pre-spycam, pre-cellphone, pre-RTI era. After careful consideration, the Commission felt these witnesses were reliable and so was their testimony, particularly that of the third witness who said he actually saw the general command his troops.

Rajdeep Sardesai (Witness No. 56)

“He had written and published an article under the caption ‘Shiv Sena admits role in Bombay riots’ in The Times of India in its issue dated 15th January 1993 (Exhibit. 354-C). He wrote the article as a result of his interaction with the Chief Minister, Government officers, police officers at various levels, and also by gathering inputs while touring the areas which are the strongholds of Shiv Sena, like Parel, Lalbaug, Girgaum and Worli, visiting the shakhas in those areas and speaking to the active Shiv Sainiks in those shakhas and interacting with the activists of Shiv Sena at local levels. He had also interviewed senior leaders of Shiv Sena like Shri Manohar Joshi and Shri Pramod Navalkar who were willing to go on record and several others leaders who spoke to him on condition of anonymity…Though an attempt was made by the Shiv Sena to discredit this witness on the ground that he was biased against the Hindus and only articulated views in his articles which were pro-Muslim and anti-Hindu, the Commission is not impressed with the suggestion made, nor is the Commission prepared to discard his evidence which appears to be very much relevant.”

Anita Pratap (Witness No. 482)

“She had interviewed Bal Thackeray in connection with the riots. The interview was published in the Time magazine under the caption “Kick them out – No compromise with Muslims: the rhetoric of hatred from Shiv Sena’s Bal Thackeray” (Exhibit. 3109-C). She did the interview with the aid of a tape-recorder…She was called upon to produce the original tape-recording of the interview. Ms. Pratap explained her inability to produce the same by saying that she had changed her job on 1.2.1996 and taken up a job with CNN at which time she had got rid of the old notes, files and tapes since till that time she had not been summoned to give evidence and the Commission had also been disbanded. Hence, she had found no point in preserving the old notes, files and tape recordings…Having carefully perused the lengthy cross-examination of the witness, it is not possible to agree with the contention that Ms. Pratap was biased or that the interview as recorded in the issue of Time magazine dated 25th January 1993 and attributed to Bal Thackeray did not take place. The assertion of Ms. Pratap that there was no denial of the interview to her or to Time magazine remains unshaken.”

Yuvraj Ganesh Mohite (Witness No. 502)

“He is another journalist working as a senior reporter of the Marathi eveninger Mahanagar edited by Nikhil Wagle [presently editor of IBN-Lokmat].” Mr. Mohite accompanied the then Bombay Mayor Mr. Chandrakant Handore [presently a Congress MLA] to Mr. Thackeray’s house in order to ask him to sign an appeal for peace. The commission continues: “…There were discussions between Thackeray and Shri Handore about the riot situation…In the meanwhile, there were several telephone calls received and answered by Thackeray. From the conversation which could be heard by Mohite, which he has reproduced in extenso in his affidavit, it was clear that Thackeray was directing the Shiv Sainiks, shakha pramukhs and other activists of Shiv Sena to attack the Muslims, to ensure that they give tit-for-tat and ensure that “not a single landya would survive to give oral evidence”…While all this talk was going on, Mohite was clandestinely making notes about what he had heard. Initially, he was making the notes openly, but later when he found that Shri Sarpotdar kept looking at him, he carried on his noting down surreptitiously. In the meanwhile, Uddhav Thackeray came into the room carrying a child, noticed that Mohite was scribbling something and asked him not to write anything…Shri Handore and Mohite left that place…While travelling in the car, Mohite made hasty notes from memory of what he could not note down after he was told to stop writing. Shri Handore told him to forget whatever he had heard. Shri Mohite insisted that he would tell his editor, Nikhil Wagle, about what he had heard…Apart from a suggestion that Mohite had given false evidence against Thackeray at the instance of his Editor, Nikhil Wagle, because of bad blood between Wagle and Thackeray, there is hardly any material in the cross-examination brought forth to discredit the testimony of this witness.”

The BJP-Shiv Sena combine that came to power in Maharashtra in 1995 vehemently rejected this indictment of Bal Thackeray. A guilty verdict from a commission of enquiry is not binding for a government. All this evidence, the exhibits, the witnesses, and documents, never went before a court. The subsequent Congress-NCP governments promised to appoint another Commission to look into the Srikrishna Commission.

Mr Bal Thackeray was therefore innocent till his very end. We, as a country must, repeat must, accept this. The same goes for Mr Jagdish Tytler. He is innocent until proven guilty in a court of law although the Nanavati Commission that looked into the anti-Sikh riots declared him guilty. You may not vote for him, you may not like to see him become a minister, but if you believe in the concept of justice, you cannot proclaim him guilty. You have a problem with that?

Unless the state sets up tens of separate courts and judicial mechanisms to hear cases that pertain only to riots, politicians, vandals, book-burners, and public servants, unless these cases are admitted, heard, and disposed within six months to one year, we cannot hope for a better future for this country.

Wounds that are 20 or 30 years old never heal, they fester. The perpetrators of the ’93 riots should have been pronounced guilty or not guilty in ’94, and in a courtroom – not in a TV studio or an op-ed page or a commission of enquiry report. Barring which they are as innocent as you and me. Always will be, here on earth or beyond.

This article first appeared in newslaundry on Nov. 26, 2012.