Liberhan consciously overlooked the wealth of information available

ANUPAM GUPTA was counsel for the Liberhan Commission for eight years between 1999 and 2007, a period when most of the hearings were carried out. Gupta left the commission because of differences with Justice Liberhan. This does find a mention in the commissions report as a factor that contributed to the delay in preparing the report. According to Gupta, the differences with Justice Liberhan revolved around the latters eagerness to soft-pedal investigations against L.K. Advani. The arguments used by Liberhan to paint him as the cause of the delay, Gupta says, are exactly those used by the BJP leader. Gupta presents his point of view on the commissions report and states emphatically that the clean chit given to the P.V. Narasimha Rao government, which was in office at the time of the demolition of the Babri Masjid, is nothing short of a sell-out. Excerpts from the interview:

As someone who had been the Liberhan Commissions counsel for long, how would you evaluate its report?

The report needs to be appraised in both political and conceptual planes. The political plane is the one which will occupy the national attention for the next few days. This may involve questions about immediate or short-term political gains and losses. The conceptual plane refers to the principal theme of the report, which would have value for posterity. In this plane, the most striking feature is the searing attack on the RSS. The RSS is attacked not just as the umbrella organisation of the Sangh Parivar but as the alpha and omega of what happens in the Sangh Parivar.

After seven years in the commission and as somebody who had very close intellectual engagement with the subject, I can say that the attack on the RSS has considerable merit and an obvious secular value and significance. Nonetheless, in the context of the Ayodhya dispute and the demolition of Babri Masjid, it is only a grand exercise in reductionism. It presents a grossly oversimplified approach. It sees nothing but the hands and the brains of the RSS, to the extent that it obliterates the role of other organisational players such as the VHP which are directly germane and vital to the Ayodhya movement. This doesnt present a correct historical picture because the VHPs growth and role as an organisation is central to the Ayodhya Ram Janmabhoomi movement.

Along with the reductionism is also the tendency for hyperbole. And collectively, they create many contradictions in the report. Take for example the critique of the Muslim organisations in the sub-section referring to this in the Conclusion. The comments virtually castigate them for not going to war with the Sangh Parivar. If they were to follow this advice, the countrys socio-political atmosphere would have got vitiated, leading to catastrophes.

Are you saying that the Liberhan report failed to delineate the finer points of the issue under consideration?

I would go beyond the expression, finer details. I would say that the wealth of information and details that was available with the commission was not properly marshalled and utilised. [It was] even consciously and purposely overlooked. For example, the commission has questioned leaders and officials on the use of paramilitary force on the fateful day. It is in the Annexure but never fully set out and unravelled in the main text of the report. This is despite a wealth of documents, correspondence and interrogations at the commissions disposal. In the final appraisal, the complicity of the State administration headed by Kalyan Singh gets highlighted repeatedly, but the role of the Narasimha Rao government is not properly addressed. The chapter Presidents Rule deals with the role of Narasimha Rao and the Central government, but this is nothing short of a complete sell-out. There is a complete and one-sided exoneration of Narasimha Rao and this destroys the credibility of the entire report. These 42 pages of the report stand out as studies in contrast to the vast amount of pages dedicated to the complicity of the State government.

But the commissions argument is that the Central government had constitutional limitations.

That is a line that came up before the commission during the hearings too. Narasimha Rao himself presented views echoing that. He used to come for the interrogation armed with law books and various judgments. And he argued better than many leading lawyers of the constitutional bench of the apex court. But somewhere along the line I got the impression that it is too well rehearsed and too constitutional an argument to be credible. Therefore, I confronted him with the reports of the Sarkaria Commission and the Administrative Reform Commission which gave suo motu powers that the Centre can deploy in exceptional circumstances. He pleaded that the Constitution did not permit him to do so. He cited the deletion of a provision Article 257(A) which would have empowered the Central government. The arguments in the report that seek to give a clean chit to Narasimha Rao echo the very arguments made by the former Prime Minister.

You have used a very strong word, sell-out.

I have used that expression knowing its implications full well and as responsibly as it needs to be used. I would say that Justice Liberhan consciously and purposely overlooked the wealth of information and intelligence available to the Central government regarding the actual evolving situation in Ayodhya in December 1992. There are other clues in the report that point towards mechanisms used to give a clean chit to the Narasimha Rao administration. In the introductory chapter, Justice Liberhan says that it is not possible nor it is necessary to give the gist of evidence in the report, and hence he is attaching the statement of the hundred witnesses as Annexure. The remaining 16 volumes of the report are depositions of 100 witnesses. So Liberhan consciously chooses not to reproduce extracts or develop his arguments on the basis of that. He just refers to some statements of some of the witnesses such as Vinay Katiyarand Mahant Ramchandra Paramhans in a scattered and ad hoc manner. The essential methodology throughout the report is to attempt to generalise what they have said. But when it comes to the chapter on Presidents Rule, this methodology is reversed. From cover to cover the actual words of the deposition of Narasimha Rao is set out in great length and in inverted commas, without any attempt to disagree with him. Narasimha Raos rehearsed defence of studied inaction is the reports view on the subject. There is no attempt to criticise the arguments.

What exactly do you mean when you say there were other materials and documents that point to the failures and mistakes of the Narasimha Rao government?

Narasimha Raos principal defence is based on references to the State governments assurances. He also focussed on the Governors letter on December 1, 1992. He had built up a structure of argument examining each and every strand of plea given in the letter. I asked him two questions based on this: How much of this is the Governors report and how much of it is a reflection of the State governments view? His response was interesting. He said Governor Satyanarayana Reddy was not an appointee of the BJP, but was recommended during V.P. Singhs time. He said he was from Andhra Pradesh and he was a very secular man. After that, in a written question, I asked him how much of the Governors letter was a reflection of your own view. He responded thus: As a person facing a critical situation and yet what I saw as real constraint, I kept an open mind with no preconceived element in it. When I received the communication of the Governor of U.P. on 1/12/1992, I saw it as an independent and objective assessment of the Governor with a categorical advice.

If the Governors letter is to be believed, the U.P. government, the bureaucracy, the administration simply cannot be indicted. The constitutional limitations argument was built upon this bottom line: The SC of India accepted the State governments assurances. The Governor is similarly giving me [Rao] a similar assurance by way of his appraisal (which he refers to as categorical advice). So there is nothing to show that the State government did not intend what it assured. If it turned out otherwise how can I be blamed?

That argument has been accepted lock, stock and barrel by Justice Liberhan. The extremely discerning approach he has adopted with the State governments complicity is abandoned for a contrary approach. And take a close look at the Governors report. It is banal and hardly a differentiated analysis. Therefore to base everything on that is nothing short of a travesty. And this Governors report is dated December 1. Both before and especially after this, the information available with the Central government is, to say the least, not as uncritical as this. All this information was available with the commission.

You have said that the indictment of Vajpayee is not legally tenable.

That indictment revolts not only my legal understanding but sense of ethics too. The commission had passed a detailed order on July 22, 2003, rejecting an application to summon Vajpayee on the grounds that there was no evidence on record against him. At that time, the controversial speech made by Vajpayee on December 5 in Lucknow suggesting demolition of the Babri Masjid had not come to the commissions notice. Even when the story about a CD containing that speech was published, it was not taken notice of by the commission. The right thing to do was to have summoned Vajpayee even at that time. Without doing that, how can the commission arrive at such a finding?