Court Charges


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




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.

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


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



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Last updated: October 29, 2000 .