Between despair and hope

Published : Oct 10, 2003 00:00 IST

The Rae Bareli court's discharge of L.K. Advani in the Ayodhya demolition case is a mockery of justice, but the Supreme Court's intervention in the Best Bakery matter revives hopes that the Indian legal system might prevail in bringing the perpetrators of communal hate crimes to book.

THE waywardness of India's police and justice delivery systems has few parallels when it comes to punishing communal offences and hate crimes. What began as a devious process of manipulation of the first information reports in the Babri mosque demolition case, and the totally illegitimate dropping of conspiracy charges against the principal accused, turned into a grotesque parody of justice on September 19 when the Special Court of Magistrate Vinay Kumar Singh in Rae Bareli framed charges against seven persons, including Murli Manohar Joshi, Uma Bharati, Vinay Katiyar and other Vishwa Hindu Parishad leaders, but discharged Deputy Prime Minister L.K. Advani. Advani is the man who spearheaded, planned and ideologically inspired the raucous agitation that led to the razing of the mosque on December 6, 1992.

Precisely what charges are framed against the remaining seven will be only known on October 10. The list of offences filed by the CBI under the Indian Penal Code (IPC) is not long: Section 147 (rioting), 149 (committing a crime), 153A and 153B (spreading communal hatred) and 505 (creating ill will). But it is clear that the indictment will not include the all-important charge of criminal conspiracy, nor offences under Sections 295 and 295A of the IPC (defiling places of worship and indulging in acts intended to outrage the religious feelings of any class).

Thus, the perpetrators of one of the worst hate crimes in India's history - who pulled down a monument which had become a symbol of pluralism - will not even stand trial for destroying a mosque and exploiting communal hatred, which they so clearly did.

This is bad enough. What is downright outrageous is that Advani, who was the most important leader of the anti-Babri movement which the BJP took over in the late 1980s, and who conducted the infamous Somnath-to-Ayodhya rath yatra and played a direct, preponderant role in the events leading to December 6, has been let off the hook. The ostensible reason made public for this is the curious argument that the CBI cited two conflicting testimonies, one of which claimed that Advani tried to calm down the restive crowd (while the other said he did nothing to restrain leaders like Uma Bharati and Sadhvi Ritambhara, with whom he shared the dais who made extremely inflammatory speeches).

Basing himself on this claimed contradiction, the Magistrate gave Advani the "benefit of the doubt". Strangely, he cited the Supreme Court's ruling in the Praful Kumar Samal case, that if the scales of evidence presented against the accused during a trial are "even" then that is a fit ground for acquittal. This conforms to the canonical rule that a person must be considered innocent until proved guilty.

Logically, this rationale can come into effect only at the conclusion of a trial, not before it, at the stage of framing charges. It does not stand to reason that a person against whom there is weighty prima facie evidence should be simply let off. The Supreme Court had said: "If an element of grave suspicion is there and the accused has explained the doubts then he can be discharged." Advani manifestly did not explain away any "doubts".

The Magistrate has erred in exonerating Advani. Independent investigations have turned up overwhelming evidence of Advani's pivotal role in the processes and events that led to the demolition, including the happenings of December 6. The Citizens' Tribunal on Ayodhya, comprising Justices O. Chinappa Reddy, D.A. Desai and D.S. Tewatia documented Advani's role at length in its Report of the Inquiry Commission (July 1993) and in the Judgement and Recommendations (December 1993), both published by the Tribunal (K-14 Green Park Extension, New Delhi 110016).

These show that Advani was central to the build-up to the events of December 1992 - from numerous kar sevas, the 1990 rath yatra, and manipulation of the State government (then under the BJP's Kalyan Singh), to misleading the courts, and organising crucial coordination meetings of the Sangh combine. The intention to raze the mosque was repeatedly and unambiguously stressed during these events. The very purpose of the rath yatra was to kindle "Hindu pride" and "get even" with history - of "conquest and humiliation" of the Hindus by "foreigners". The main slogans of the yatra were provocative: "there are only two places for Muslims - Pakistan or kabristan (graveyard))".

The Inquiry Commission recorded detailed testimony of eyewitnesses to show that plans for December 6 were launched by the BJP-VHP-Bajrang Dal with a lalkar saptah starting November 29. By December 2, 90,000 kar sevaks had gathered at Ayodhya. By December 3, they numbered 150,000. On December 5, Advani addressed a public meeting in Lucknow and was to go to Varanasi, reaching Ayodhya/Faizabad on December 5. He, however, altered his plans so as to reach Faizabad to join an all-important closed-door meeting at Vinay Katiyar's house, where the ultimate, detailed, nuts-and-bolts plans for December 6 were finalised.

Among those present were the RSS' H.V. Seshadri and K.S. Sudershan, the VHP's Ashok Singhal, Vinay Katiyar and Acharya Dharmendra, the Shiv Sena's Moreshwar Save, and the BJP's Pramod Mahajan. Meanwhile, a rehearsal of the demolition operation took place the same day near the Babri mosque.

According to the Commission, on December 6, Advani arrived at the site at the same time as Joshi (10-30 a.m.). He, among others, addressed the kar sevaks. His speech was intemperate. Meanwhile, some kar sevaks had breached the security cordon and were in a highly excited state. At 11-30 a.m., Uma Bharati made a highly inflammatory speech, including slogans "tel lagao Dabar ka, naam mitao Babar ka", "Katue kate jayenge, Ram-Ram chillayenge", and so on.

At 11-45, Advani reportedly announced, "We don't need bulldozers to pull down the mosque; [we can do it manually by removing chunks of its wall]". The assault on the mosque began. Advani then ensured that the demolition would continue and be completed without the intervention of Central paramilitary forces stationed nearby. At 3-15 p.m., he urged kar sevaks "to block all entry points to Ayodhya to prevent Central forces from entering, and warned the armed forces not to touch the kar sevaks." The eight accused were present at the site for a full seven hours and made no gesture to distance themselves from the destructive and illegal actions of the day.

The December 6 events were videographed and photographed by numerous journalists, by Indian and foreign TV channels and, above all, by the Intelligence Bureau, which reportedly has nine hours of tapes. (Curiously, the CBI did not present all of these to the special court).

Yet, the Sangh Parivar has launched a disinformation campaign which claims that Advani did his best to restrain the kar sevaks and shed tears at the demolition! It is relevant to ask if these were tears of sorrow or of joy: Advani has consistently described the anti-Babri agitation as a "national" movement for Hindu self-assertion, which finally removed what he called the "ocular" insult in the form of the mosque.

The disinformation and evasion of responsibility speaks of monumental cowardice on the part of Advani & Co. They revelled in the destruction, and hugged one another in exultation and mutual congratulation.

The BJP rode to political power at the Centre on the anti-Babri Masjid movement. In all honesty, its leaders must face trial and declare either that they stand by their role or that they regret and repent it and apologise. They cannot both take credit for the act and attribute its planning and execution to mysterious, unknown and unknowable forces - as Sangh ideologue K.R. Malkani once did, by blaming the CIA.

There was a clearly identifiable human agency behind December 6: the BJP-VHP-RSS-Bajrang Dal-Shiv Sena's top leadership, including Advani and Joshi. But cowardice is a Sangh characteristic. Following Gandhi's assassination, the RSS was banned. Thousands of its members quickly stopped participating in its activities and claimed they were never its members.

The Rae Bareli order is odious. But Uttar Pradesh Chief Minister Mulayam Singh Yadav has decided not to appeal against it - on the grounds that "I am a firm believer in the judiciary and of the view that the court verdict on Ayodhya should be acceptable to all ... I welcome the court's decision and have nothing more to say ... " Amar Singh has gone even further to say that the government cannot appeal against it. This strengthens the suspicions of a secret collusive deal between the BJP and the Samajwadi Party. Mulayam Singh Yadav has decided to accept the BJP's Kesarinath Tripathi as Speaker and not to poach on the party's MLAs. This makes the whole matter all the more sordid. It sets back hopes of a just trial and further shakes the public's confidence in India's justice delivery system.

IN contrast to this comes the Supreme Court's intervention in the Best Bakery case. Through two hearings on September 12 and 19, the court effectively began piloting and guiding the Gujarat government in its handling of the consequences of a "fast-track" special court's judgment exonerating all the accused for the burning of 14 Muslims. While questioning Gujarat's Chief Secretary and Director-General of Police directly, Chief Justice V.N. Khare obtained an assurance that Gujarat's Advocate-General would now take full charge of the matter. He would redraft the appeal against the "fast-track" court verdict.

The Supreme Court tried to establish three things: the Best Bakery investigation was faulty because 37 of the 43 witnesses turned hostile; there was miscarriage of justice; and there is a case for re-trial of the accused outside Gujarat. The Gujarat government did admit that there was miscarriage of justice and there is a case for re-trial (although that should not be outside Gujarat). It also claimed the investigation was not faulty. However, the Supreme Court asked it to file an affidavit on October 9 to say on what lines its appeal would be drafted. This suggests close supervision or stewardship of the process of litigation.

Welcome as this intervention is, the Court needs to go beyond the Best Bakery case and look at the horrendous crimes committed during the Gujarat pogrom in their totality. Crimes Against Humanity, the report of the Concerned Citizens' Tribunal, comprising eminent jurists and scholars, concluded, after examining 2,094 statements and 1,500 witnesses, that the pogrom that lasted several weeks amounted to genocide in the strict sense of the term. The pattern of violence shows: selective targeting of Muslims, inhuman forms of brutality, military precision and planning, and use of Hindu religious symbols. This was planned, sustained and prolonged through hate speech, intimidation and terror by the RSS, the BJP and the VHP-Bajrang Dal, with the complicity and participation of policemen and bureaucrats, encouraged by Narendra Modi.

It is clear that Muslims were targeted not because they did this or that act, but simply because they were Muslims. The killer mobs' declared intention, as revealed by their own slogans, was to liquidate, mentally harm, humiliate and subjugate Muslims and "destroy them", "wipe them out from Gujarat", and cleanse the state of Islam. The physical violence directed against Muslims, the calculated destruction of the economic basis of their survival, and sexual assaults against Muslim women as an instrument of terror, all point to genocide.

Article II of the International Convention on Genocide, 1948 defines genocide as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group" like: "(a) killing [its] members; (b) causing [them] serious bodily or mental harm; (c) deliberately inflicting on the group conditions ... calculated to bring about its physical destruction... ; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring [its] children ... to another group."

The Gujarat pogrom unambiguously fits the definition. As a signatory to the Convention, India is obliged to punish the perpetrators of genocide through a competent court. This demands a special independent National Tribunal for hate crimes and genocide. This alone can meet the ends of justice.

For this to happen, we must see the numerous cases of violence not as discrete acts, but in their totality as genocide. This sui generis process of litigation will need special agencies for investigation and prosecution as well as victim protection. It would be a historic tragedy if the Indian state once again fails to bring the perpetrators of hate crimes to book.

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