The courts and the demolition

Judicial decisions on the Ayodhya dispute in the last decade jettisoned the rule of law and canons of justice.

May 03, 2015 12:46 am | Updated 02:55 am IST



The political discourse in India since the mid-1980s, dominated by the revanchist campaign involving the Babri Masjid at Ayodhya, has been marked by rhetoric, invocation of myths and the juridical. It is idle to argue that any one of the democratic institutions — the legislature, the executive or the judiciary — had acted in a manner it ought to have in this. That the canker of communal fascism has eaten into the vitals of our Republican Constitution — in other words, the idea of India — is indeed a fact. A.G.Noorani is among those intellectuals, far and few in number, who made it a point to record this process. The book under review, essentially a sequel to his earlier work in two volumes ( The Babri Masjid Question: `A matter of National Honour’, Tulika, 2003 ) renders the developments during the decade since 2003.

The period was marked by three important developments or events and all those in the realm of the judiciary: the instances of how the perpetrators of the criminal act of demolition and those who conspired to do it were allowed to go scot-free with the CBI and the trial court judges refusing to follow the rule of law; the Liberhan Commission of Enquiry submitting its report in 2009, after many years since it began enquiring into the demolition, simply refraining from pinning down the guilty; and the judgment by the Special Full Bench of the Allahabad High Court on the civil suits before it on September 30, 2010, where some established canons of the CrPC, the Indian Evidence Act and principles of justice were thrown in to the bin and the judges revealed what could happen to a Constitution based on lofty principles when individuals in high positions decide to compromise on those principles.

The High Court’s decision on the civil suits (in which the majority ordered apportioning a certain piece of land among three parties representing religious denominations while the case before the court was for determining who among them had the legal right to the property). In what can be described as a saving grace, the Supreme Court has stayed the operation of the High Court order (and also recorded that ‘ The High Court’s judgment is something strange…’ ), while admitting an appeal on May 9, 2011. Notwithstanding this, Noorani has reasons to believe that “there is little hope for redress in legal proceedings after that grave and utterly wasteful crime.”

The Justice Liberhan Commission, for instance, took 17 years only to state the self-evident; the report, in many respects, was replete with errors both of commission and omission. And in the end, it blamed the Muslim leadership for the demolition and was completely silent about the role of the Congress and the then Prime Minister, P.V.Narasimha Rao. Noorani establishes this by culling out portions from the report and also reproducing interviews published in news magazines with Anupam Gupta, who had served as counsel for the Commission. Such documentation should serve as evidence for future scholars who would research into the bad times we are in.

Scathing attack

Noorani’s treatment of the Allahabad High Court decision of September 30, 2010 (three separate judgments that ran into 31 volumes) is indeed remarkable. Extracting the relevant portions, the author establishes how all the three judges vied with one other in throwing out principles of justice and procedure to rest on hearsay and presumptions that do not stand the test of law (more specifically the Indian Evidence Act). He establishes that these “should have found no place in a judicial pronouncement by a court of law in India established by its Constitution.” The author is equally scathing in his attack on Justice Sibghatullah Khan (who delivered a minority judgment) for invoking Darwin and the fittest alone survives (to ask the members of the minority community to reform ) as much as he is in case of the two others — Justices Sudhir Aggarwal and Dharam Veer Sharma for invoking myth, hearsay and dubious records to conclude the way they did rather than rely on the basics of the law on adverse possession, the historical fact of the idol being installed in the precincts on December 22, 1949 and that the mosque was demolished on December 6, 1992.

However, Noorani does not apportion all the blame on the High Court judges alone. He argues, with facts to back, that the seeds for this were sown when the Supreme Court, in a 3:2 judgment decided on the reference to it under Article 143 of the Constitution (on whether a Hindu structure existed beneath the site where the Masjid stood; while the scope of the reference, made on December 27, 1992, (days after the Mosque was demolished) was a problem, Noorani, in the introduction to this volume goes into how the majority in the Bench (Justices J.S.Verma, M.N.Venkatachalaiah and G.N.Ray) laid the basis for the way in which the judges of the Allahabad High Court went about while deciding the civil suit. Noorani holds that “the net result of his (Justice Verma’s) laboured reasoning was to perpetuate a situation created by that (demolition of the mosque) crime.”

Apart from these, the present volume reproduces court as well as newspaper reports, arranged in order of the sequence of events to tell the story of how the cases against the leaders charged with leading the demolition squads and the campaign were simply lost; not because of want of evidence but because the CBI simply listened to its political masters, most importantly L.K. Advani, when he was Union Home Minister between May 1998 and March 2004. All the charges against Advani were dropped in December 2003! Noorani also puts documents, investigative stories in newspapers and news portals to tell us, once again, the story of how the demolition was planned and the details were known to the Union Government at that time.

This book is indeed an important addition especially in terms of the documents that are reproduced and will be of immense help to scholars, researchers and anyone interested in knowing one of the tragic events that contemporary India witnessed and to learn that it happened because too many people abdicated their duty.

Destruction of the Babri Masjid — A National Dishonour: A.G.Noorani; Tulika Books, 35 A/1 Shahpur Jat, New Delhi-110049. Rs. 995.

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