By any standards, 25 years should be a long enough period to find closure for crimes which affect the social and political life of a country. But it has taken this length of time for the real beginning: the trial of political leaders for conspiracy to commit what is conveniently described as “political crimes”. If ever there was a case where the invocation of the powers of the Supreme Court to do “complete justice” under Article 142 of the Constitution existed, it was the Babri Masjid demolition case. As Justice R.F. Nariman recognises in his judgment, the underlying basis of the Article is the Latin maxim fiat justitia ruat caelum (let justice be done though the heavens fall). The court’s unhesitating resort to Article 142 mitigates to some extent the consequences of the failures of the Uttar Pradesh government and the Central Bureau of Investigation (CBI), and the judiciary’s own tardy processes. Each of these deserves some attention.
The charge of criminal conspiracy against L.K. Advani, M.M. Joshi and six others failed to fructify only because of the view of the Lucknow Bench of the Allahabad High Court in its judgment of February 12, 2001 that the insertion of the separate FIR 198 of 1992 against these eight individuals in the original notification of the State government directing the cases to be tried by a special court at Lucknow was procedurally flawed. And that procedural flaw, which the High Court itself held was curable, was that there had been no consultation with the High Court.
On June 16, 2001, the CBI requested the State government to cure the defect. The request remained pending with the State government for a year-and-a-quarter and was rejected on September 28, 2002. This period spanned the chief ministership of Rajnath Singh, a short spell of President’s rule under the National Democratic Alliance (NDA) government and finally the chief ministership of Ms. Mayawati, whose Bahujan Samaj Party government depended on the outside support of the Bharatiya Janata Party (BJP). This rejection was not challenged by the CBI during the tenure of the NDA government at the Centre till May 2004 or even subsequently.
The Supreme Court in its judgment of April 19, 2017 highlights the failure of the CBI to challenge the refusal of the State government to rectify the procedural flaw by consulting the High Court. The directions now given by the Supreme Court, namely transferring the case against Mr. Advani and seven others from Rae Bareli to Lucknow and the framing of charges of criminal conspiracy by the Court of Lucknow, are only to remedy, in the court’s own words: “what was expected by the Allahabad High Court to have been done shortly after its judgment dated 12th February 2001”.
To the top court
The route by which the present case reached the Supreme Court needs to be mentioned. Skipping the unnecessary details, the special court at Lucknow by an order dated May 4, 2001 dropped proceedings against 21 persons, including the Advani batch of eight, taking the view that there were two sets of accused, namely the innumerable kar sevaks who actually demolished the masjid and the limited number of others who were the instigators. The special court chose to drop the proceedings against these 21 persons so that the case against the kar sevaks could go on. The revision filed by the CBI against this order of the special court remained pending before the Allahabad High Court for a good nine years before it was dismissed by a judgment on May 22, 2010. It is this judgment which was challenged by the CBI in the Supreme Court after a long delay. Considerable time of the Supreme Court was spent on examining the question of delay.
The case picked up pace in the Supreme Court only after March 6 this year when it came before a bench of Justices P.C. Ghose and Nariman. The oral observations of the Court on that day gave a sufficient clue to its mind and the case was finally heard and judgment delivered with remarkable promptitude in a month and a half. But it is necessary to remember again that in this round of litigation starting from May 4, 2001 the case has remained pending for a good 16 years in the superior courts.
It is also worth looking at the varying judicial reactions in the Supreme Court in the same case over a span of four years. Last week’s judgment had no hesitation in recording that the case with which it was concerned pertained to crimes affecting the secular fabric of the Constitution. But in 2013 the reaction of a bench headed by Justice H.L. Dattu, later Chief Justice of India and now Chairperson of the National Human Rights Commission, was different. At that time the much respected senior counsel, P.P. Rao, was appearing for the CBI. He is not known for courtroom dramatics or the use of hyperbole. In support of his plea for early hearing he referred to the incident as a crime and described it as a matter of national importance. He had not described any individual as a criminal. According to newspaper reports, he was sharply pulled up. While reminding the CBI of its own delays in the matter, the bench reportedly said, “Do not say it is a national crime or matter of national importance. We are yet to decide it. Unless we or the trial court decide this way or that way you cannot make such a statement.”
A distinction between roles
There was another related proceeding which the Supreme Court did not and was not required to notice in the present case. It is still worth mentioning. On September 19, 2003, the special court at Rae Bareli discharged Mr. Advani, then the Deputy Prime Minister, in the case relating to the making of inflammatory speeches on December 6, 1992. It drew a distinction between the role of Mr. Advani and the seven others, including Mr. Joshi. Newspaper reports indicate that while Mr. Joshi promptly tendered his resignation from the Union Cabinet, he made it clear that there was no logic in the distinction made by the Court between Mr. Advani and the others, including him. If this judgment had stood, there would have been no case against Mr. Advani in the Rae Bareli court which the Supreme Court could have transferred to Lucknow last week and to which the charge of conspiracy could have been added. This judgment of the Rae Bareli court discharging Mr. Advani was however set aside by a Single Judge of the Lucknow Bench of the Allahabad High Court on July 6, 2005. That is why Mr. Advani, Mr. Joshi and six others are in the same boat again.
Raju Ramachandran is a Senior Advocate, Supreme Court of India