Source: Frontline,
Vol. 14 :: No. 19 :: Sept.20 - Oct. 3,1997
From the publishers of THE
HINDU

AYODHYA
Demolishers in the dock
A hard-hitting order of the Special Court dealing with the Babri
Masjid demolition case permits conspiracy and other charges to be filed
against L.K. Advani, Bal Thackeray and other Hindutva leaders.
VENKITESH RAMAKRISHNAN
in Lucknow and New Delhi
DESPITE the brave face that they are attempting to put on the
situation, the September 9 order of the Special Court dealing with the
Babri Masjid demolition case has serious implications for the Bharatiya
Janata Party (BJP) and other memers of the Sangh parivar.
There are three kinds of problems that the parivar, and especially
the BJP, faces in this context. First, its new campaign to target
political opponents who face corruption and criminal charges will be
undermined; secondly, its attempt to come to power at the Centre by
forging alliances with regional secular parties will suffer a setback;
thirdly, personality clashes within the party will intensify.
The court order has brought many leaders of the Hindutva combine
under judicial scrutiny on charges that could attract major punishment.
The BJP found itself in a similar situation last year when charge-sheets
were filed against its leaders, including party president L.K. Advani
and former Delhi Chief Minister Madan Lal Khurana, in the hawala
scandal. The present situation, however, would be more serious because,
unlike the hawala case, charges have been framed against the accused in
the demolition case. In fact, when the Special Court dealing with the
hawala cases refused to frame charges against its leaders, the BJP
hailed it as a major victory, took the high moral ground and vowed to
launch a crusade against corruption and the criminalisation of politics.
The framing of charges in the demolition case is bound to affect this
campaign.
The BJP's recent campaigns against its principal political opponents
in Bihar and Uttar Pradesh - the Rashtriya Janata Dal led by Laloo
Prasad Yadav and the Samajwadi Party led by Defence Minister Mulayam
Singh Yadav - centred on the corruption and criminal charges levelled
against many leaders of these parties. When Laloo Prasad Yadav was
charge-sheeted in the Animal Husbandry Department scam, the BJP
vociferously demanded his resignation. He had no moral right to continue
as Chief Minister since he was under judicial scrutiny, it said.
Similarly, when Balram Yadav, former Minister in the S.P. Ministry in
Uttar Pradesh, was charge-sheeted in the Ayurveda scam, the BJP said
that Mulayam Singh should resign, owning moral responsibility for the
scam since it took place when he was Chief Minister.
It is now difficult for the BJP to take such positions, especially at
a time when Kalyan Singh, one of the accused in the demolition case, is
set to take over as Chief Minister. Special Court Judge J.P. Srivastava
observed in the order that as Chief Minister, Kalyan Singh violated his
constitutional obligation to protect the Babri Masjid despite his
assurance to the National Integration Council that the mosque would be
protected.
The court order has intensified inner-party feuds in the BJP,
especially in Uttar Pradesh. Leaders opposed to Kalyan Singh have
reportedly told the central leadership that it will be difficult to
carry on with a Chief Minister who faces criminal charges. Kalyan Singh
is expected to take over as Chief Minister on September 21, as part of
the party's agreement with its coalition partner, the Bahujan Samaj
Party (BSP).
The court order will also affect the BJP's new political strategy of
capturing power at the Centre by winning regional allies. Many of the
parties identified as potential allies by the BJP for the next
elections, including the BSP, have committed secular positions,
especially on the Babri Masjid demolition issue.
The basis of the BJP's defence in this situation is to differentiate
between the corruption cases against its opponents and the demolition
case. The Ayodhya demolition, it argues, was the result of a
"people's movement" and does not involve corruption or any
criminal activity.
The court order to frame charges against Shiv Sena chief Bal
Thackeray, Vishwa Hindu Parishad (VHP) leader Ashok Singhal, Advani and
other BJP leaders such as Murli Manohar Joshi, Kalyan Singh, Vinay
Katiyar and Uma Bharati and 42 others clearly states that the
prosecution has been able to establish that there is prima facie
evidence to proceed against them.
The order states that the prosecution case shows a conspiracy to
demolish the structure and that this conspiracy was executed between
October 1990 and December 1992 in various stages. It also states that
the conspiracy culminated in the demolition of the structure on December
6, 1992. On the basis of this fundamental premise, the court has framed
charges against the leaders under Sections 120(B), 147, 153A and B, 295B
and 505 of the Indian Penal Code for forging a conspiracy, rioting,
inciting violence and creating hatred between communities. Two
government officials - R.S. Srivastava, who was then District Magistrate
of Faizabad, and D.B. Rai, Senior Superintendent of Police - have been
charged under Sections 295(A), 153(A), 201, 114, 120(B) and 505 of the
IPC for dereliction of duty, failure to discharge official obligations
and hatching a conspiracy.
The Special Judge's conclusions are based on the facts of the
exchange of letters between leaders of the Hindutva combine and the Shiv
Sena, meetings between them, statements issued by these leaders and
their speeches in public meetings, which were corroborated by witnesses,
as well as on actions taken by the Kalyan Singh Government. The order
agrees with the prosecution's contention that the objective of the
conspiracy was to demolish the Babri Masjid and remove the plaque put up
at the structure by Babar's lieutenant Mir Baqi.
According to the prosecution, the first signs of the conspiracy
became evident when Advani undertook a rath yatra in October 1990 with
the professed objective of building a Ram temple at the disputed site in
Ayodhya. The order refers to the Central Bureau of Investigation's
finding that Thackeray met Advani in the course of the yatra and
Thackeray made a statement that it was important to build the Ram temple
at Ayodhya to assert Hindu identity. Thackeray congratulated Advani on
his efforts in this direction.
The order pointed out that after the 1990 yatra, which led to futile
attempts to demolish the structure, a BJP Government led by Kalyan Singh
came to power in Uttar Pradesh. One of the first acts of the members of
the Kalyan Singh Ministry was to go to the disputed site in Ayodhya and
take a public vow that a Ram temple would be built at that very spot.
This was followed by a letter (dated July 17, 1991) from Shiv Sena
leader Moreshwar Save to Kalyan Singh, asking the Chief Minister to
expedite the work on the Ram temple. Kalyan Singh responded on July 1,
1991, stating that steps were being taken in that direction. The order
pointed out that within a year of this correspondence, the BJP
Government acquired 2.77 acres of land around the disputed structure,
demolished several temples that stood there and facilitated greater
accessibility to the structure.
Following this a kar seva was performed in this area in July
1992, during which a platform was built in front of the structure. Save
wrote to Advani congratulating him on having started the construction of
the temple. Advani responded in a letter dated July 20, 1992 thanking
Save for his message.
Recounting the account given by CBI investigation records on the
events of the fortnight preceding the demolition, the court order
pointed out that a call to demolish the structure on December 6, 1992
was given at the Dharam Sansad (a meeting of sants and mahants)
organised by the VHP at Ayodhya in the last week of November. The order
cited the prosecution records on the meeting and pointed out that the
Bajrang Dal had announced that its suicide squads were ready to demolish
the structure.
The order refers to the statements of Advani, who led yet another
rath yatra to Ayodhya during this period, that the kar seva was
not mere chanting of slokas. It also mentions the statement of
Kalyan Singh that he would not allow the use of gunfire against kar
sevaks. The order pointed out that VHP leader Ashok Singhal told a
press conference a day prior to the demolition that, whatever the
obstacles, Mir Baqi's plaque would be removed from the structure.
The order recounted the events during the demolition, including calls
given by Advani and Singhal to block traffic from nearby Faizabad so
that the Central forces did not reach the structure and prevent kar
sevaks from "completing their job". The order is
particularly critical of Kalyan Singh and the two government officers
for grave dereliction of duty and non-fulfilment of their constitutional
obligations. According to the order, as people who had taken a pledge in
the name of the Constitution to protect the rule of law, they were
duty-bound to protect the structure. By deliberately not making any
efforts to protect the structure, these three government functionaries prima
facie committed a grave crime, said the order.
During the hearings on the charge-sheet, counsel for the defendants
repeatedly said that there was no evidence for the prosecution's charge
of conspiracy. The order rejected this contention and said that there
can be no concrete documentary evidence for a conspiracy as it is
hatched mainly by oral communication. The Judge observed that any
investigation had to study the sequence of events during and after the
execution of the conspiracy to come to a conclusion in this regard. The
Judge said that the sequence of events related by the prosecution prima
facie points to a conspiracy.
Another argument put forward by counsel for the accused leaders was
that they had not incited anybody to demolish the structure but that the
kar sevaks were enraged over the obstacles created by the
Government to the kar seva and had expressed their emotional and
moral outrage. The special court did not accept this argument.
According to former High Court Judge P. Subramanian Potti, this
argument reveals an attempt on the part of the leadership to evade moral
responsibility for the events that took place. Potti told Frontline:
"The conspiracy and guilt may or may not be proved during the
trial. But opposing something as normal as framing of charges in a case
of this dimension and trying to pass the blame on to ordinary workers
alone does not look right."
It is clear that the BJP and the Hindutva combine are caught in a
cleft stick. The order has come at a time when there is a realisation
among some sections of the Sangh parivar that its political
interests can be advanced only by attempting to change its image as a
virulently communal force, an image that it acquired at the height of
the Ram Janmabhoomi agitation.
But, as the court order shows, the burden of Ayodhya will weigh
heavily on the combine for a long time to come.

The post-demolition trail
VENKITESH RAMAKRISHNAN
THE demolition of the Babri Masjid on December 6, 1992 led to two
major inquiries: the Special Court of Inquiry instituted by the Central
Bureau of Investigation (CBI) and the Judicial Commission of Inquiry
headed by Justice M.S. Liberhan. The proceeding s related to these in
the past seven years have presented a clear case of legal filibustering.
Here is an account, in the chronological order:
Special Court of Inquiry
December 9, 1992: The Special Court of Inquiry is set up by the Crime
Branch of the Uttar Pradesh Police. Crime No. 197, in which lakhs of kar
sevaks accused of the demolition, and Crime No. 198, in which leaders
such as L.K. Advani, Murli Manohar Joshi and Uma Bharati are the
accused, are the important cases taken up by the Crime Branch. A
December 8, 1992 order said that the court would function from Mata-ki-Tilla
near Agra, where the main accused were lodged after their arrest on
December 7 and 8.
December 12: Crime No. 197 is handed over to the CBI even as the
other cases remain with the Crime Branch.
February 27, 1993: The Crime Branch files the first set of
charge-sheets, which include the names of L.K. Advani and Murli Manohar
Joshi, before a Special Judicial Magistrate.
August 26: The Crime Branch hands over Crime No. 198 also to the CBI,
and a fresh investigation is initiated in a case for which charge-sheets
have been filed.
September 10: The Special Court of Inquiry shifts from Mata-ki-Tilla
to Rae Bareli citing operational advantages.
September 15: The Special Court of Inquiry is shifted once again,
from Rae Bareli to Lucknow; the cited reason is again operational
advantages.
October 5: The CBI files a comprehensive charge-sheet in the
demolition case.
August 27, 1994: More than eight months after the charge-sheet is
filed, a Sessions Judge is committed to the Special Court.
September 1: Three days after committing the Sessions Judge, the CBI
comes up with the request to conduct further investigation in a case
where it has already filed a charge-sheet.
October 7: The CBI's application is rejected by the Sessions Judge.
October 10: The CBI files a revision petition repeating the request
for further investigation.
October 22: The petition is upheld.
January 1, 1996: A Fresh charge-sheet is filed by the CBI against
nine other accused, including Vijayaraje Scindia, Ramachandra Paramahans
and so on.
September 9, 1997: The Special Court orders the framing of charges
against the 49 accused.
September 10: Counsel for the 33 accused file a revision petition
against the order to frame charges.
October 24: The petitions are upheld and a stay order is issued with
regard to four accused.
(Since October 1997, the court has fixed as many as 24 dates to hear
the case, but each time the accused refused to appear before it. The
next date for hearing is December 22.)
Judicial Commission of Inquiry
The Justice Liberhan Commission was notified to be set up on December
16, 1992. It was stipulated that the Commission complete the inquiry in
six months. However, the hearings began only in March 1993. Since then
the Commission has called 12 witnesses of its own and 39 witnesses for
the defence. It has had approximately 30 hearings, and also 13
extensions. The current term of the Commission ends on December 31, and
by all indications it will get another extension