The case takes an unexpected turn as the BJP’s old guard comes under pressure. What are the consequences for the ruling party?

~By Parsa Venkateshwar Rao Jr

In the Babri Masjid demolition case, Justice Rohinton Fali Nariman said the Supreme Court has to choose between evasion of law and evasion of justice. This was the crux of the issue that he was hearing along with Justice Pinaki Chandra Ghose. He was responding to senior counsel KK Venugopal, who said that the Supreme Court cannot transfer the trial case in the Rae Bareli special court to Lucknow because that would amount to evasion of law.

Citing Section 406 of the CrPC, Venugopal said that a case can be transferred from one criminal court under the jurisdiction of a high court to another criminal court of higher grade under the jurisdiction of another high court. That is, a criminal case can be transferred from one state to another, but it should be transferred to a criminal court in the other state which is of a higher ranking than the earlier one.

He said that this too can be done only at the request of either the attorney general or the advocate general of a state, or on a petition by the party involved in a case. He argued that the Supreme Court cannot transfer a case from one court to another within the same state as is being sought in the present instance. Justice Nariman replied that Article 139 of the constitution gives powers to the Supreme Court to do so.

Venugopal was arguing the case for BJP leaders LK Advani, Murli Manohar Joshi, Kalyan Singh, Uma Bharati, Vinay Katiyar and others who were facing charges of delivering inflammatory speeches and inciting others on December 6, 1992, in Ayodhya, a little before the Babri Mosque was razed to the ground by a mob of kar sevaks.

Justices Ghose and Nariman were hearing the appeal by the CBI which sought restoration of a criminal conspiracy charge against Advani under Section 120B of the Indian Penal Code. The Rae Bareli special court had dropped the charge, and the Allahabad High Court had upheld the lower court’s decision. The CBI wanted the High Court’s order to be reversed.

The judges have indicated that they are in favour of reviving the criminal conspiracy charge against Advani and others. Right now, there is a charge against “unknown kar sevaks” of conspiring to bring down the mosque. But the leaders were not included in the initial First Information Report (FIR). The charge was not there even in the other FIR, where Advani and others were named and they were charged of instigating the mob through provocative speeches. On April 6, Additional Solicitor General (ASG) Neeraj Kishan Kaul, appearing for the CBI, urged in the apex court that the conspirators should not be allowed to go “scot free”.

The confusion has arisen because the investigation agencies had filed two FIRs, 197 of 1992 and 198 of 1992. The first was against “unknown kar sevaks”, about 1,00,000 of them, who had demolished the Mosque, and the second dealt with Advani and others who gave speeches before the demolition. The ASG had admitted that the criminal conspiracy charge was not incorporated in the first two FIRs, and was later added in the second one. It was the Rae Bareli court which had dropped the conspiracy charge under Section 120B of the IPC against Advani and others. The other charges of giving speeches instigating the crowd remained.

The Court had allowed senior lawyer Kapil Sibal, appearing for Haji Mahmoud Ahmad whose Special Leave Petition (SLP) was admitted by the Supreme Court, to explain the points of law. But Venugopal objected to Sibal’s intervention, saying that he was a Congress MP. He argued that the case should be heard in Lucknow as there was no need for two cases to be heard on the same issue. He also said that the trial has lasted 25 years and that it was a scandal in itself. The Court had indicated that it would give directions for a time-bound trial process, which should be heard on a daily basis and completed in two years.

The two main issues that confronted the Supreme Court in this case are:

• Two trials going on, one at Lucknow, and the other at Rae Bareli.
• The dropping of criminal conspiracy charges under Section 120B of the IPC against Advani and other BJP leaders.

The Court, which has reserved its order for April 11, will be dealing with these two questions. The judges have clearly indicated that there should be a joint trial at Lucknow, and that the criminal conspiracy charge should be restored.

It has to be seen whether the witnesses examined and the evidence presented so far at the Rae Bareli special court would hold good. It also needs to be seen whether the joint trial at Lucknow takes off from the point that the case had reached in the Rae Bareli court.

Secondly, restoring the criminal conspiracy charge against Advani and others, which, if proved, would result in rigorous imprisonment, is not the same as reaching a conviction verdict. It is possible that the special court in Lucknow could throw out the charge of criminal conspiracy after evidence is presented and the arguments are done. Even if the trial court were to convict Advani and others on the charge of criminal conspiracy, the accused are certain to appeal to the Allahabad High Court and then, the Supreme Court. And the appellate courts will have to uphold the lower court’s verdict. It remains an open-ended issue.

What makes this case newsworthy is the fact that senior leaders of the BJP— Advani and Joshi—are in the dock, and this could be a political embarrassment to the party which leads the coalition government at the centre and which is in power in Uttar Pradesh.

BJP leaders could turn the adverse situation to their advantage and argue that the party does not misuse its position in power, and that it does not tamper with the legal processes as do their political rivals.