At an event organised by SAHMAT, Sabrang Trust and Social Scientist in December 6-8, 2010, journalist and author Manoj Mitta had elaborated
upon the ‘legal fiction’ and systemic failures at many levels, including by the Congress ruled Central Government, that mocked the rule of law and subverted justice in the Babri demolition case. He drew a parallel to the events of 1949 when locks of the Masjid were broken and ram lalla idols kept inside illegally. As a supreme court ‘approved’ Ram Mandir comes up at the site of the sixteenth century Babri masjid, this twelve year old excerpt from the speech, rings
chillingly prescient.
First published on: 01 Feb 2011
I am a journalist and given the timing of this meeting, I should probably first mention a disclaimer. Though I am from the English mainstream media, I don’t figure in the Radia tapes. You may therefore hear me with a degree of indulgence. I don’t take dictation from any corporate lobbyists. I don’t toe any government line. If I travel with anybody, it is more with activists like Teesta Setalvad and I’m very proud to say so because I see no contradiction in this. I don’t feel compromised when I speak or when I espouse public causes. And Ayodhya is one such. And if I may extend the Radia tapes metaphor, Ayodhya has been a bit like the Radia tapes of our claim to be secular. From 1949 onwards, Ayodhya has been a major challenge which showed how hollow our pretensions are, right from the way in which the establishment responded to the 1949 episode.
I am very conscious of the fact that I am the third speaker here and that I come after Anupam Gupta who gave us such a comprehensive account of the systemic response to the 1949 and 1992 episodes concerning Ayodhya. So I will try not to tread over the same ground. I will try to deal with the few gaps that have been left in an otherwise very comprehensive exposition. One that comes to mind offhand is the reference made to the 1994 judgement of the Supreme Court, given during the follow-up to the demolition, on the law (the Acquisition of Certain Area at Ayodhya Act 1993) that the Narasimha Rao government came up with. What the Supreme Court gave to the nation smacked of a Hindu bias and this was underlined by the fact that it was a split verdict. The three judges who gave the majority judgement, and this is probably no coincidence, were all Hindus and the two who gave the dissenting opinion were non-Hindus, one was a Parsi and the other a Muslim.
The reason I make reference to this is because the Allahabad high court in 2010 likewise delivered a split verdict in the Ayodhya case. Much of the truth about the 1949 episode is reflected essentially in Justice Khan’s judgement even though it was absolutely central to determining who this disputed site should be given to. The whole basis for the claim arose from the illegal act that took place on December 23, 1949 and yet it was given short shrift in the two judgements delivered by the Hindu judges. And this should be a matter of great concern to us. There is a need for our judiciary to appear more assertive in displaying our secular commitment.
Another issue that has not been dealt with in great detail and which I will therefore take up concerns the criminal proceedings that followed after the 1992 episode. The manner in which the state responded to this crime was as strange as the manner in which it responded to the crime of 1949. The crime of 1949 was a turning point in the history of modern India; yet though a first information report (FIR) was formally lodged, it has never been investigated. This was an episode unlike any other in our history, an episode that has led to so many subsequent crimes; it has polarised the nation and continues to dog us even today. There has been no judicial finding on the illegality of what happened that night in 1949 or on culpability, on who was responsible for it.
Similarly, with regard to the 1992 episode, there have been FIRs – not one but as many as 49 FIRs – and the proceedings are still going on, there has still been no judicial finding on what happened on that fateful day, December 6. Of these 49 FIRs, only two really matter in the immediate context because the other 47 relate to attacks on journalists so I will dwell a little longer on these two. The first one, FIR No. 197/92, deals with the demolition per se, the run-up to it, the conspiracy that led to the demolition, the people who were involved in that demolition. The other FIR, No. 198/92, deals with the inflammatory speeches that were delivered by eight main leaders of the sangh parivar from a makeshift dais, Ram Katha Kunj Manch, erected not very far from the Babri Masjid as it stood that morning. The FIR dealing with the demolition did not name any accused persons at all. The police were probably justified in doing so because their focus was on the kar sevaks (who had been actively engaged in the demolition) and so this FIR, which was registered on the evening of December 6, names no names at all. FIR No. 198 names eight sangh parivar leaders. This is not the strange part. The strange sequence of events begins thereafter.
Much of the truth about the 1949 episode is reflected essentially in Justice Khan’s judgement of 2010 even though it was absolutely central to determining who this disputed site should be given to. The whole basis for the claim arose from the illegal act that took place on December 23, 1949 and yet it was given short shrift in the two judgements delivered by the Hindu judges
For some reason the centre, which had taken over the administration of Uttar Pradesh through president’s rule soon afterwards, chose to refer the demolition FIR, No. 197, to the Central Bureau of Investigation (CBI) while the FIR dealing with the inflammatory speeches delivered by sangh parivar leaders, which is probably a more sensitive issue, more politically sensitive at least, was referred to the Crime Branch, Criminal Investigation Department (CB-CID), of the Uttar Pradesh police. There was really no reason for the two to be separated. Both pertained to the same crime; there was a link, an organic link, between them. These inflammatory speeches were made not very far from the scene of the crime, where the demolition was going on, and they were addressed to kar sevaks who were gathered there while the crime was taking place simultaneously. And there were witnesses to all of this. It is very logical to infer that inflamed as they were by these speeches, those kar sevaks were encouraged to indulge in that crime. The two cases were linked yet for some reason the Congress government of Narasimha Rao – I mention this because there’s this rhetoric about the Congress being a secular party and so on and so forth – did this very strange thing, of separating the two cases. They were given to two different agencies. (While FIR No. 197 was handed over to the CBI, FIR No. 198 was to be prosecuted by the state CID in a special court in Lalitpur, later moved to Rae Bareli.)
Then a few months later it wakes up to the incongruity of this duality and it clubs the two cases together and gives them to the CBI. And then it also refers the two cases to one special court (a special CBI court set up in Lucknow). The reason I mention this is because it was in this special court that the CBI in 1993 first filed a joint charge sheet related to both FIRs, wherein these leaders, Advani and company, were named, in the context of the demolition, as conspirators. They were very much a part of the conspiracy and there was ample evidence of this. After all, in the run-up to the demolition there were the two rath yatras that converged in Ayodhya, one led by Advani, the other led by Murli Manohar Joshi, inviting people to come to Ayodhya in large numbers for the alleged kar seva; and on the eve of the demolition there was a secret meeting at the residence of Vinay Katiyar, the then MP from that area – which the CBI charge sheet refers to – where the finer details of this conspiracy were probably discussed. This charge sheet was filed in October 1993, nearly a year later.
In 1997 Judge Jagdish Prasad Srivastava of the additional (special) sessions court, Lucknow, frames charges. He passes an order prima facie accepting, taking cognisance, of all the charges made by the CBI so now there is a judicial stamp on these charges. A lot of the CBI’s findings were endorsed by this judge and he was poised to call each of the accused persons before court to read them the charges. It was at this stage that this legal process was interrupted. Some of the persons named in that charge sheet (a total of 49 persons were named in the charge sheet – somehow the figure 49 keeps recurring in this context!) went to court, the Allahabad high court, and got a stay order on proceedings.
This stay order was finally lifted in 2001 by which time the BJP-led National Democratic Alliance (NDA) was in power at the centre, by which time Advani was sitting in North Block as home minister and, if I am not mistaken, was probably even deputy prime minister of India. Whether he was, whether he had acquired that designation by then or not, he was very much a powerful leader. The Allahabad high court, speaking through Justice Jagdish Bhalla, said, look, there was a flaw, a procedural flaw, in referring the political leaders’ case, the inflammatory speeches case, to the special court at Lucknow but the saving grace is that it is a defect that can be cured. Now all that the then BJP government in Uttar Pradesh, led by Rajnath Singh, had to do in terms of the high court order was to issue a fresh notification so that the reference of that case, No. 198, was made in a proper manner.
After that, for weeks on end Rajnath Singh would keep saying, he would mystify it: “Oh, we are looking into it, we have referred this to our legal experts, they will do the needful.” And sure enough, they did nothing of the sort. That vacuum allowed the special sessions court in Lucknow, a sessions judge called Srikant Shukla, to separate the two cases completely. He said that the leaders, Advani and company, would no longer be tried for the demolition in this special court. They would be tried separately, if at all, for the lesser offence of inflammatory speeches.
The term ‘legal fiction’, so often used, has acquired a very perverse meaning in the context of Ayodhya. The legal fiction here is that we are today confronted with a situation where, even as we speak, proceedings are going on in the Lucknow special court dealing with the Ayodhya demolition while the special court in Rae Bareli deals exclusively, wearing blinkers, with the issue of inflammatory speeches. The fact that the two are linked is totally overlooked. The fact that you can’t talk about conspiracy without bringing leaders into it is overlooked. Look at the joke that is being played on us. I am not talking about the September 30, 2010 judgement of the Allahabad high court. I am talking about the related issue of criminal proceedings and the farce that is being perpetrated on us even today. There is so much hype about our being a rising power in the world and so forth but look at the manner in which more and more people are able to mock at all notions of the rule of law, of secularism.
The continuing joke is that in the Lucknow special court, accused persons whose names you have never heard of, whose faces you would not recognise, some anonymous kar sevaks, are being tried for the crime of conspiring to demolish the Babri Masjid all on their own, without the knowledge or involvement or instigation of any of these sangh parivar leaders, of the VHP, the BJP, the RSS, etc. That is the implication of their being tried in isolation, of only these unknown persons being tried for the demolition. And in Rae Bareli, you have the sangh parivar leaders being tried and being tried for what? Only for delivering inflammatory speeches which, as far as the courts are concerned, have nothing to do with the demolition because they will look at the issue of inflammatory speeches in isolation. And if that were not farcical enough, we must also bear in mind that we witnessed during the NDA’s reign a glaring instance of how the judiciary often does the bidding of the executive (just as, in the context of the Radia tapes, you have heard that journalists do the bidding of corporate lobbyists). So much for the independence of the judiciary.
We have seen how in 1986, in the context of the Shah Bano case and all the flak Rajiv Gandhi was getting for what he was doing to allegedly appease Muslim fundamentalists, he came up with this brainwave of doing a balancing act and got his administration to take the necessary steps to get the locks of the Ayodhya shrine opened. The Babri Masjid, which was kept under lock and key from 1950 onwards to keep the dispute under control, was suddenly opened. We have heard about the manner in which the then district judge, KM Pandey, referred to some divine inspiration that he got from a monkey, which he even mentions in his memoirs. This was an instance of courts doing the bidding of the government.
Similarly, in the NDA’s time when the inflammatory speeches issue was taken up and charges were to be framed, what does the court do? The Rae Bareli court? It discharges the person who for all practical purposes was the face of the Ayodhya movement, the so-called Ayodhya movement. The 1986 incident, of the locks being broken open and Hindu devotees being allowed to have darshan of Ram Lalla inside the Babri Masjid, gave momentum to this movement. And the face of this movement – especially after the BJP’s Palampur resolution in 1989 (openly supporting the VHP’s demand for building the Ramjanmabhoomi temple in Ayodhya) – was LK Advani. Minus Advani, minus his genius, his political skills, it would probably not have acquired these proportions. This leader was discharged. He was there on the dais but he was discharged while other leaders were still going to be prosecuted.
We have little evidence, documentary evidence, of the demolition. The 47 other cases that were registered by the police along with the two cases I have been talking about involved attacks on journalists. Why were these cases registered? Many of these journalists were there to do independent work and they were inconvenient to the kar sevaks, to the sangh parivar types. So while part of the telltale evidence of a conspiracy was the manner in which they stealthily removed the Ram Lalla idols before the demolition, further, very clear, evidence of it was the orchestration of events. It was not as if some people got carried away by their emotions and started attacking the Babri Masjid. On the contrary, while one section of kar sevaks was engaged in the demolition, there was another section that very systematically attacked journalists. As soon as they saw a camera, they would smash it, they would scare the journalists away, they would intimidate them, they would beat them up – there were actual instances of this nature. That is how those 47 cases of attacks on journalists arose. In spite of all the demolition, you only have little bits of evidence here and there, like the photograph of Uma Bharti hugging Murli Manohar Joshi, which have survived those attacks. This is because of the kind of crime it was, the mass crime that took place in Ayodhya, when even journalists were not spared.
Advani was discharged on the testimony of his security officer, one very upright young Indian Police Service officer called Anju Gupta. And what does her testimony say? In her testimony, and this is something that anybody who reads it will know, she is nailing his claims, his much touted claim that December 6, 1992 was the saddest day of his life. The author of this movement, the man who did whatever he could to bring things to that stage on December 6, had the gumption to say that that was the saddest day of his life. But she gave us a ringside view of what was happening on the dais, what the conversation was, how he was very much a part of the jubilation.
This lady goes on to give further evidence about how Advani was very much a part of all the jubilation and how there was a time when he was concerned about the kar sevaks who were on top of the structure, engaged in the demolition. His concern was not to stop them, his concern was not to bring them down and save the mosque. His concern, and this comes through very clearly in Anju Gupta’s testimony, was that because there were a lot of kar sevaks at the ground level who were simultaneously demolishing the structure, there was a great probability of those who were on top of the structure being hurt, of their falling down and getting hurt. That was his concern and that is why he sent Uma Bharti there to dissuade them, to tell them to come down. Those were his concerns; there was no anxiety being displayed by him to stop anything. This is what came through in her testimony.
Yet the special court in Rae Bareli, when it discharged Advani during the NDA’s reign, actually cited Anju Gupta’s testimony – the judgement was in Hindi, the judge used the expression “ati mahatvapurna (exceedingly important)” – as the crucial basis on which he was letting off Advani. So much for this rule of law that we all keep buying into.
When there was a change of regime in 2004, this farce was corrected. Advani was brought back into the case. And given the background circumstances, I dare say that this judicial correction would not have taken place but for the fortuitous circumstance of the government having changed at the centre.
In the Lucknow special court, some anonymous kar sevaks are being tried for the crime of conspiring to demolish the Babri Masjid without the knowledge, involvement or instigation of any of the sangh parivar leaders. And in Rae Bareli, the sangh parivar leaders are being tried only for delivering inflammatory speeches
These events are all interconnected. The fact that the 1949 FIR has never been followed up, that there have been no convictions, is no coincidence. And it doesn’t end there.
To come back to the Supreme Court and the judgement of 1994, there is more to it than the split verdict on the then government’s proposed new law. There was another very farcical aspect that pertains to contempt of court. During the run-up to the demolition this matter was also before the Supreme Court.
As we are now aware, the intelligence reports issued prior to the demolition were very precise and any administration would have known from those reports that there was imminent danger to the structure. So there was wilful negligence on the part of the centre, on the part of the Narasimha Rao government, in this regard. Simultaneously, there was a public interest petitioner, Mohammad Aslam Bhure, and his counsel, OP Sharma, who were very valiantly fighting a battle before the Supreme Court. Their applications were based on newspaper reports that said the same thing: that what was going to happen on December 6 was very serious, that the threats cannot be taken lightly – these were issues that were brought before the court. And more importantly, the Supreme Court bench headed by Justice MN Venkatachaliah had one very compelling reason to take these warnings seriously.
In July 1992 proceedings were underway before the Supreme Court, also at the instance of Bhure, on the construction of a platform near the Babri Masjid that was going on at the time. The court kept on ordering the Kalyan Singh government to stop this, to respect the status quo order, and yet the construction took place. The first contempt notice to Kalyan Singh was issued in July 1992 in this context and then, on December 6, this great crime takes place. These warnings should have been taken seriously. The undertakings given by the same Kalyan Singh who so wilfully violated and disobeyed the Supreme Court orders in July 1992 should therefore not have been taken seriously. Yet the Supreme Court in its wisdom decided to allow symbolic kar seva to take place.
How much of this was based on their commitment to the rule of law, how much of it was because they were Hindus, I don’t know. Despite the background, the Supreme Court trusted these fellows to perform a symbolic kar seva. And when this belief of theirs was belied, was completely shattered, sure enough, the Supreme Court, for national consumption, to the delight of our newspapers and TV channels, came up with some very strong observations: This is the greatest ever perfidy, there can be no greater instance of contempt of the Supreme Court, an otherwise mild judge really thundered in the courtroom, making someone like KK Venugopal, who was representing the Kalyan Singh government, say: I’m ashamed my lord, I was not privy to this conspiracy. When my clients said that they were going to observe the rule of law, that they were going to ensure that no damage would take place to the structure, I took their word for it. That was the kind of drama that took place in the court soon after the demolition. This was part of the same response.
And then, along with the 1994 judgement wherein the post-demolition measures taken by the government were examined by the Supreme Court, the court also dealt with the issue of contempt. The media and most people thought that the one-day sentence awarded to Kalyan Singh in that context was for the demolition but it was actually for the July 1992 instance of contempt, the first contempt notice. The judges wilfully kept clear of the act of contempt that was committed on December 6, 1992. To date, just as the 1949 FIR has still not resulted in a charge sheet and prosecution, this greatest ever contempt, as we were told it was subsequent to the December 6 incident, has still not been disposed of. No action has so far been taken. It is as if the judges don’t want to take chances with Lord Ram’s wrath.
Their inaction is not very different from the actions of Judge Pandey of the Uttar Pradesh judiciary who saw the hand of Hanuman, Hanuman’s benediction, in his decision to open the gates of the Babri Masjid. One cannot help seeing such significance in their eloquent silence on taking action against the December 6 act of contempt. And such silence is not an isolated instance.
We saw a similar silence in the context of the Supreme Court’s judgement on Hindutva in 1995. To make a brief reference to the Hindutva judgement… How do you talk about whether Hindutva is really liberal and in consonance with the Constitution without talking about what exactly Veer Savarkar, the man who coined that expression, had in mind: What was his definition of Hindutva, how did he propound this very pernicious theory that India belongs more to those whose birthplace and sacred land is India? This was an aspect that was totally glossed over by the Supreme Court in its Hindutva judgement as it merrily went along with the view that Hindutva is no different from Hinduism, the catholic, liberal interpretation of Hinduism.
I look at all of this as an outsider, as a representative of the media; I’m sure those of you who are from within the system can see this farce even more clearly than I do.
Archived from Communalism Combat, February 2011 Year 17 No.154, Section 1-Silence is Eloquent