Indefensible facts

THE report of the Liberhan Ayodhya Commission of Inquiry on the demolition of the Babri Masjid at Ayodhya on December 6, 1992, has invited criticism on two grounds. One, the commission took 17 years to complete its proceedings. Second, it gave a seemingly unjustified clean chit to the then P.V. Narasimha Rao government at the Centre. The report addresses both the concerns, but the reasons it has advanced are debatable.

The one-man commission, headed by Justice M.S. Liberhan, has admitted that the completion of the report took a great deal of time, more than anyone had anticipated, and that it certainly exceeded the time that Justice Liberhan himself thought he would have to spend on it. In the report, he has sought to absolve himself of any responsibility for this delay and instead blames those within and outside the commission for it.

The commission was set up on December 16, 1992, in accordance with the Commissions of Inquiry Act, 1952, initially with the tenure of six months. Its mandate was to ascertain the truth and the facts and circumstances leading up to the demolition and to identify the persons responsible for the event; the deficiencies in the security measures and other arrangements as prescribed or operated in practice by the Government of Uttar Pradesh which might have contributed to the demolition; the sequence of events leading to, and all the facts and circumstances relating to, the assault on mediapersons at Ayodhya on December 6, 1992, and any other matter relating to the subject of inquiry. It was a roaming and fact-finding inquiry with no restrictive mandate. Therefore, the scope of the mandate was at odds with the limited tenure of the commission as originally conceived. It was thus inevitable that the governments in power kept on extending its term from two to six months each time its term was about to expire.

After 399 sittings and the examination of nearly 100 witnesses, it finally submitted its report to the Central government on June 30 this year. Former Uttar Pradesh Chief Minister Kalyan Singh was the last witness to be examined, in 2005. The Centre spent Rs.8 crore on the commission, which included the salaries of the staff.

In the report, Justice Liberhan has contended that when he began working on this assignment, he was still a Judge of the Punjab and Haryana High Court, and as the holder of a constitutional office he was constrained by the dignity and demands of that office. He has said that he had to deal with the intransigent bureaucratic mindset and style of functioning first and even obtaining basic facilities that any commission would require took a huge amount of effort. He had to fall back reluctantly on the resources and staff of the Punjab and Haryana High Court in the beginning, the report says. Finding space for an office for the commission, its staff and the accommodation for them was in itself a Herculean task, and after an inordinately long period, the commission began its work with its office in Lucknow. (It later moved to New Delhi.) The Union Ministry of Home Affairs provided to the commission an investigating team consisting of officers who, at one point of time or the other, were part of the Central Bureau of Investigation (CBI) team in cases registered after the demolition, the report further says. The commission commenced its effective sittings from January 1993, but started regular hearings only from 1995.

The commissions work suffered a jolt when the staff deputed to it by the Punjab and Haryana High Court was withdrawn midway. The commission never even had its full sanctioned strength of officers and stenographers. The short extensions of the commissions tenure disheartened the staff. The Central government extended the term of the commission 48 times. The last extension was on March 31, 2009.

The fact that the government had to extend the commissions tenure so many times reveals a serious non-application of mind by the government and the Union Council of Ministers whose approval is required for every extension. Both the government and the commission appear to have ignored the need to assess the nature and scope of the commissions work and estimate the maximum time required to complete the task.

The frequent transfer of the commissions secretary was another factor: every new secretary took time to get acquainted with the commissions work.

The commission first issued notices for eliciting information and invited affidavits from the general public. Despite repeated advertisements, it got no relevant information, not even any hearsay evidence or theories, as the report puts it. Even the State and the Union governments were not forthcoming with the relevant records. The commission, therefore, turned to public figures and requested their appearance as witnesses. It served notices on political and non-political parties who had participated in the Ram Janmabhoomi/Babri Masjid movement as well as the Central and Uttar Pradesh governments. It issued subpoenas requiring the presence and testimony of the witnesses and production of evidence through the media and public notices. The commission also visited the demolition site at Ayodhya.

Some individuals on whom the commission had served notices obtained stay orders on them from the Allahabad and Delhi High Courts. The Delhi High Court vacated the stay orders after a few years, but the Allahabad High Courts stay on some notices remained until the submission of the report. As a result, the preliminary task of collecting evidence suffered.

The Central government took a number of years to examine a handful of witnesses, whose role was limited just to the security aspects. The Central government, according to the report, made no attempt to examine anybody with respect to the conspiracy or a joint common enterprise resulting in demolition. Governments both at the Centre and in the State changed during the inquiry, necessitating a fresh opportunity to be given to the new governments to re-examine their positions. Periodical elections to the Lok Sabha and the State Assembly put the commission under constant pressure to ensure that none used its proceedings for election campaign. The commission, therefore, had to await the conclusion of an electoral process to go ahead with its proceedings.

It was not feasible to hold day-to-day proceedings of the commission as Justice Liberhan was a sitting Judge (and later a Chief Justice) discharging his judicial functions as such, apart from the non-availability of lawyers for parties.

Justice Liberhan has blamed the commissions former counsel, Anupam Gupta, for part of the delay in the conclusion of its work. He has alleged that Gupta reneged on his duty to analyse and collate the evidence and the records and render advice to the commission for its conclusions. Gupta had filed an application stating that he did not wish to prejudge or prejudice the inquiry by assisting the commission. Justice Liberhan rejected this application vide a detailed order in his presence. Justice Liberhan has also alleged that Gupta reneged on his promise to provide written submissions on the basis of the material retained from the commission. (See Guptas interview for his replies to these allegations.)

Justice Liberhan has found that Gupta was unable to retain an unbiased and impartial appearance as the commissions counsel. His political views and opinions overshadowed his professional role, Justice Liberhan says in the report. He has accused Gupta for breach of professional duties and betrayal of the trust reposed in him as the commissions counsel, with the result of forestalling early submission of the report.

Another intractable issue the commission faced was the tendency of some witnesses to deny what they had stated in public. Former Chief Ministers Kalyan Singh and Mulayam Singh Yadav had averred to the media that they were aware of the conspiracy to demolish the masjid. But before the commission both denied having any knowledge of such a conspiracy.

Section 8B of the Commissions of Inquiry Act makes it necessary for a commission to give a person a reasonable opportunity to be heard in the inquiry and to produce evidence in his/her defence if it considers it necessary to inquire into his/her conduct or is of the opinion that the reputation of that person is likely to be prejudicially affected by the inquiry. The report has found former Prime Minister Atal Bihari Vajpayee as individually culpable for leading the country to the brink of communal discord, in its concluding chapter (paragraph 171.1.7).

However, on July 28, 2003, the commission had rejected the demand to summon Vajpayee, then Prime Minister, for examination as a witness. The commission accepted the advice of its then counsel, Anupam Gupta, that it would serve no useful purpose to summon the Prime Minister at that stage of inquiry. In the absence of the issue of a notice to Vajpayee under Section 8B of the Act, the legitimacy of the commission placing him along with others individually culpable for the demolition is disputable. Justice Liberhan has defended this by claiming that the report does not indict Vajpayee. But the report clearly causes prejudice to Vajpayees reputation, after giving him no opportunity of being heard, as Section 8B requires.

The commission is of the view that Presidents Rule ought to have been imposed in the State prior to the demolition as evidenced by the events of December 1992 and later.

However, it adds that the constitutional restraints imposed on the Central government were cleverly utilised by the State government of the time to deprive it of this option. A careful reading of the reports chapter on Presidents Rule suggests that the commission accepted the then Prime Minister P.V. Narasimha Raos defence rather uncritically. In his depositions before the commission, Narasimha Rao explained that Article 356, enabling the imposition of Presidents Rule in a State by the Centre, could not be used for preventive purposes and that its object was to enable the Union of India to take remedial action consequent upon a breakdown of the constitutional machinery. Narasimha Rao also claimed that the then Governor of Uttar Pradesh had warned the Centre against imposing Presidents Rule as, in his view, such a step could lead to large-scale violence resulting in the demolition of the disputed structure.

To a question by the commission whether the Sarkaria Commission (on Centre-State relations) concluded that Central forces could be deployed suo motu even against the consent of the State in exceptional situations, Narasimha Rao answered that it was possible, but added that in the absence of any positive power given to the Central government in the Constitution, inferential powers were not generally resorted to. As a result of this flawed understanding, the Central government sent repeated communications to and had parleys with the State government led by Kalyan Singh, imploring him to use the paramilitary forces stationed at Ayodhya to avoid the catastrophe. Needless to add, the Central government was reduced to the position of a helpless bystander during the demolition.

This is how the commission has justified the Narasimha Rao governments inaction: The onus for the campaign of disinformation must rest solely with the State government who deliberately and consciously understated the risk to the disputed structure and general law and order. This obfuscation of the ground reality deprived the Central government of the basic prerequisites for imposing Presidents Rule.

Historians, however, will disagree with such an assessment.