In the dock, again

By setting aside the trial court's "illegal, improper" order discharging L.K. Advani in the Babri Masjid demolition case, the Allahabad High Court has paved the way for a speedy disposal of one of the most controversial and sensitive cases in Indian history.

V. VENKATESAN in New Delhi

ON July 6, Justice Y.R. Tripathi of the Lucknow Bench of the Allahabad High Court passed an order that has the potential to unsettle the equations within the Sangh Parivar. The order set aside the September 2003 judgment of the Special Court at Rae Bareli discharging Bharatiya Janata Party president L.K. Advani in the case relating to the making of inflammatory speeches by Sangh Parivar leaders in Ayodhya on December 6, 1992. Advani, along with the other seven accused, has been ordered to appear before the Rae Bareli trial court on July 28.

That Justice Tripathi delivered his order a day after terrorists targeted the makeshift temple in the demolished Babri Masjid complex at Ayodhya was something of an irony. The terrorists' attack gave the Sangh Parivar an issue on which it could speak in one voice, eclipsing the recent in-house bickering relating to Advani's remarks about Pakistan's founder Mohammed Ali Jinnah. Besides, the attack offered Advani an "honourable" opportunity to return to the Hindutva plank, from which he appeared to digress in recent days.

Justice Tripathi's order, on the other hand, seemed to suggest that Advani's effort to separate himself from the hardliners in the Sangh Parivar so that he could wear his secular mask is as doomed as his recent flirtation with the idea of a secular state as propounded by Jinnah. The order deprived Advani of the benefit of the doubt, granted by the Rae Bareli court, on whether he intended to abet the demolition of the Babri Masjid by making an inflammatory speech near the structure, and brought him on a par with the other seven accused in the case. The immediate response of Advani and his colleagues to the judicial setback was to treat it as a legal problem rather than understand its implications. While the remaining seven accused had argued before the High Court that they were entitled to the same benefit of the doubt granted to the BJP president by the trial court, Advani's case rested on the strength of his plea that his case was different from that of the others, and that the available evidence revealed clearly that he alone could have been discharged from the case.

Incidentally, the Rae Bareli court had only created a legal wedge between Advani and the other seven accused, but ironically an intra-party political divide also emerged between them for various reasons, and it became explicit after the Jinnah affair. The seven other accused - former Union Ministers Murli Manohar Joshi and Uma Bharati, former BJP Uttar Pradesh unit president Vinay Katiyar, and Vishwa Hindu Parishad leaders Ashok Singhal, Giriraj Kishore, Vishnu Hari Dalmia and Sadhvi Ritambara - are now among Advani's detractors in the Sangh Parivar and probably would like to see his exit from the BJP president's post at the earliest.

It would be interesting to watch what stand the accused would take in the wake of the verdict. The political divide between Advani and the other accused may not be bridged because of the order, but their response to it is sure to throw more light on the changing perceptions within the Sangh Parivar about its attitude to the demolition of the Babri Masjid. Faced with punishment for their alleged crimes, Sangh Parivar leaders would be under pressure to obfuscate their role in the demolition and the Ramjanmabhoomi movement, which they were proud to have led once.

Meanwhile, the legal significance of the Lucknow verdict should not be missed. A.G. Noorani said about the judgment delivered by Special Judicial Magistrate Vinod Kumar Singh of the Rae Bareli court on September 19, 2003: "It is well settled that at the stage of framing the charges all that the court has to consider is whether a prima facie case is made out. It is not to enter into a trial on the merits. Section 227 of [the] Criminal Procedure Code says that if the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused, as distinct from an acquittal which can follow only after a trial on the merits of the charges" (Frontline, January 30, 2004).

Noorani suggested that the trial court had to consider whether the prosecution case, if not rebutted, established a case in law (prima facie case). He wrote: "The sole issue before the Magistrate, therefore, was whether the police statements produced before him by the prosecution established such a case. Thirty-odd such statements are reproduced in the judgment; some contradict others. The contradiction is to be resolved only in the trial proper; not while framing the charges unless, of course, the ones against the accused are manifestly untrue or absurd. In this case, they were not."

The High Court held that the trial court either disregarded or misinterpreted the evidence while discharging Advani. The crucial evidence was the testimony of Anju Gupta, an Indian Police Service (IPS) officer, who was in charge of Advani's security on December 6, 1992. She said the following in her statement: "I had seen some boys advancing towards the disputed structure from the Kuber Tola side, with tools in their hands. Then Advani asked me what was happening inside the temple... "

The Rae Bareli Magistrate interpreted the statement in his judgment: "From this statement, the prima facie conclusion emerges that at that time, L.K. Advani did not know that demolition of the disputed structure had started. Besides, Advani's contention in Anju Gupta's statement that I want to go and tell them to come down generates another view contrary to the prima facie charge against him. In her statement, Anju Gupta has not indicated any such contention by any other leader. She has also said Advani had asked her what was happening at other places and she had said she did not know. The fact of Advani inquiring about what was happening at other places prima facie reveals his ignorance."

As Noorani wrote, this reasoning is wrong. Advani's ignorance of what was happening in other places in the city could not be reasonably construed to suggest that he was ignorant of the demolition itself. His concern was not to stop the demolition, else he would not have urged barricading of the roads to prevent Central security forces from arriving. Anju Gupta mentioned that "Advani was sad that people were falling from the domes and dying".

The misinterpretation of Anju Gupta's testimony led the Magistrate to conclude that there existed only suspicion (and not grave suspicion) that Advani caused the crime to be committed, whereas the other accused were unable to rebut the existence of serious suspicion against them about their abetment in the commission of the crime.

The High Court found the order discharging Advani "to be illegal, improper and incorrect, based on perversity of the inferences and conclusions". Following its order, the High Court vacated its stay on the proceedings before the Rae Bareli court and directed it to dispose of the case soon. It noted that more than 12 years had elapsed since the incident and the case was still at the stage of framing of charges.

The High Court advised the Central Bureau of Investigation (CBI) "to introspect and decide if it has lived up to its reputation and if any remedial action is required in its functioning to avoid criticism of its functioning". The advice is significant as the CBI, the prosecution agency in the case, did not file a revision petition before the Allahabad High Court challenging Advani's discharge by the Rae Bareli court in 2003.

At that time Advani was Union Home Minister in the BJP-led National Democratic Alliance government. The failure to file the petition within the limitation period of three months prompted two individual petitioners, Haji Mehboob and Haji Mohammed Siddique, to approach the High Court challenging the order of the trial court. In fact, the CBI's view at that time was that the conduct of Advani vis-a-vis the other accused was "definitely different" and his conduct during the relevant time was indicative of his innocence (vide The Hindu, January 13, 2004).