A defender of militancy

By all established definitions of "terrorism'', the demolition of the Babri Masjid was a "terrorist act", and not a "political offence" as claimed by L.K. Advani.

A MINISTER in government who provides moral help to militants up in arms against the state is a certifiable security risk. If he happens to be Home Minister in charge of national security as well, he deserves a resounding order of the boot from the Presi dent. L. K. Advani says that the demolition of the Babri Masjid was a "political offence". What will he say to the militants who offer the same defence after killing a Minister, as in Madhya Pradesh, looting a bank or attacking an army camp in Srinagar? Advani faces a First Information Report (FIR) prepared by the Central Bureau of Investigation (CBI), which is now under his control. The FIR, dated October 5, 1993, alleges, after a thorough investigation, that he participated in a conspiracy to demolish the masjid on December 6, 1992 and committed grave offences in pursuance of that conspiracy. Also charged were two other Union Ministers, Murli Manohar Joshi and Uma Bharati.

On February 4, 1994, the Supreme Court issued notice for contempt of court against Advani and others. The Chief Justice of India, Justice M.N. Venkatachaliah, who issued the notice, and three successors, Justice A.M. Ahmadi, J.S. Verma and M.M. Punchhi, came and departed. Justice A.S. Anand is now the Chief Justice. This inaction for nearly six years is in striking contrast to the court's readiness to proceed against Arundhati Roy. Was Advani's a less grave offence?

On August 27, 1994, Special Judicial Magistrate Mahipal Sirohi found that a prima facie case existed which warranted committal of those accused by the CBI to trial by a Sessions Court which alone could pass sentence in a grave case like this. On S eptember 9, 1997, Jagdish Prasad Srivastava, Additional Sessions Judge (Ayodhya Episode), Lucknow, "concluded that in the present case a criminal conspiracy to demolish the disputed structure of Ram Janam Bhoomi/Babri Masjid was hatched by the accused pe rsons in the beginning of 1990 and was completed on 6-12-1992. Shri Lal Krishan Advani and others hatched criminal conspiracies to demolish the disputed premises on different times at different places. Therefore, I find a prima facie case to charg e Shri Bala Saheb Thakre, Shri Lal Krishan Advani, Shri Kalyan Singh, Shri Vinay Katiyar" and others under Sections 147, 153(A), 153(B), 259, 295(A) and 505 read with Section 120(B) of the Indian Penal Code.

Thus, the case was found proved prima facie warranting a regular trial. Matters had gone far beyond a charge-sheet filed in a court by the police. Two judicial officers, the committing Magistrate and the Sessions Judge, found that a prim a facie case was established on the facts.

However, one formality remained for the trial to begin. Section 228(2) of the Criminal Procedure Code lays down that where the Sessions Judge "frames any charge", as in the Ayodhya case, "the charge shall be read and explained to the accused, and the acc used shall be asked whether he pleads guilty of the offence charged or claims to be tried". In short, the accused must himself be physically present in order that his or her plea to the charge is recorded. The lawyer's presence will not suffice.

Accordingly Judge Srivastava ordered: "All the accused persons are directed to be presented in the Court on 17-10-1997 for framing of the charges." By filing revision applications in the Allahabad High Court and absenting themselves, the accused have ave rted the opening of the trial for a full two years since October 17, 1997.

Not so, trial before the Bar of Public Opinion. The Sessions Judge's 61-page order is a public document which, thanks to the exertions of Prakash Karat, Polit Bureau member of the Communist Party of India(Marxist), is published in full as a CPI(M) public ation. It is entitled "Ayodhya Conspiracy of Saffron Brigade Unmasked" (CPI(M); A.K.G. Bhavan; 27 Bhai Vir Singh Marg, New Delhi-110001; Rs.3). The Sessions Judge's order recorded: "On 5-12-1992 a secret meeting was held at the house of Sh. Vinay Katiyar which was attended by Sh. Lal Krishan Advani, Pawan Kumar Pandey and a final decision to demolish disputed structure was taken. Their argument was that there was a ban on construction not on demolition and accused No.1 to 38 assembl ed near Ram Janam Bhoomi/Babri Masjid on 6-12-92 and Sh. Lal Krishan Advani categorically said in his public speech before the demolition of disputed structure that 'Today is the last day of Kar Seva. Kar Sewaks would perform last Kar Seva.' When he came to know that central force was proceeding from Faizabad to Ayodhya then he (Advani) asked the public to block National Highway so that central forces do not reach Ram Janambhoomi. Prosecution has also contended that when disputed structure was being pulled down Sh. Advani asked Kalyan Singh not to tender his resignation till the disputed structure is completely pulled down" (emphasis added).

WHAT was Advani's defence? "No masjid existed on the spot, as no Namaz was ever held there. Disputed structure was a mandir for centuries. The court had restrained from constructing mandir. There was no injunction against demolition of the mandir. "

And the Sessions Judge's finding? "On a careful perusal of evidence produced by the prosecution in the present case, I have come to conclusion that the prima facie evidence as alleged against the accused persons is made out."

In paragraph 36 (page 14), he traced Advani's movements just prior to the offence and concluded (para 37) that he was very much a party to the conspiracy. In a recent interview (Outlook, December 20, 1999), Advani said: "I had nothing to do with t he demolition." The Judge's Order, however, recorded, "As per Ms. Ruchira Gupta, PW-145 that Shri Advani declared that CRPF may arrive at any time. Therefore, all the people should raise barricade on the main roads so as to prevent CRPF from coming near the spot." This was also reported by the correspondents of The Hindu and Indian Express (December 7, 1992) who had personally heard Advani urging the men to block the roads so that the Central police could not reach the spot and prevent the demolition. His denial is a brazen lie. This, quite apart from his participation in the "secret meeting" on December 5, 1992 when the final steps for demolition of the masjid were decided.

This brings us to his stand on law and propriety. "As for the demand for my resignation, there is a clear distinction between a political case and being charge-sheeted in any other case, however motivated it may have been." The hawala case, over which he resigned from the Lok Sabha on being charge-sheeted, "involved moral turpitude of sorts, relating to corruption". The implication is plain - demolition of a house of worship does not involve "moral turpitude". Prime Minister Atal Behari Vajpayee sang th e same tune on December 7, 1999. "There is no corruption charge against them, nor any allegation of misuse of office. You know there is a difference between charges of corruption and this kind of case."

By the Vajpayee test if a Minister is charged with taking the law into his own hands to accomplish a political objective by recourse to violence, he can continue in office, nonetheless. But can the demolition of a house of worship be characterised as a " political offence" at all as the expression is understood in the civilised world?

Law Minister Ram Jethmalani gives a weighty legal opinion on that point, as set out in an article in Indian Express on October 16, 1990 and in a box item in Frontline, May 22, 1998. Jethmalani referred to Advani's oath as Member of Parliame nt. He is now Home Minister, sworn to uphold the law. Jethmalani said: "There is no loophole or ambiguity in the law." However, as Minister in the Vajpayee Government he shifted his position. On April 17, 1998, Jethmalani drew a distinction between those charge-sheeted by the police and the ones against whom charges were framed by the court. By this very test, Advani must quit. Charges were framed against him and others on September 9, 1997. Only their pleas to the charges await the recording for the tr ial to begin.

There is, however, one sure test which exposes the falsity of the Bharatiya Janata Party regime's stand. If the Babri Masjid had stood not in an India in the grip of the Hindutva campaign (as in 1990-92), but in tolerant Nepal or Bhutan and the BJP's goo ns had gone there to demolish it and returned home, could India have legally resisted Nepal's or Bhutan's demand for their extradition in order to stand trial in that country? Article 1 of the South Asian Association for Regional Cooperation's Regional C onvention on Suppression of Terrorism (November 4, 1987), which India has ratified, provides a clear answer: "Subject to the overall requirements of the law of extradition, conduct constituting any of the following offences, according to the law of the C ontracting State, shall be regarded as terroristic and for the purpose of extradition shall not be regarded as a political offence or as an offence inspired by political motives." Among the offences listed are "(e) murder, manslaughter, assault ca using bodily harm, kidnapping, hostage-taking and offences relating to firearms, weapons, explosives and dangerous substances when used as a means to perpetrate indiscriminate violence involving death or serious bodily injury to persons or serious dam age to property; (f) all attempt or conspiracy to commit an offence described in sub-paragraphs (a) to (e), aiding, abetting or counselling the commission of such an offence or participating as an accomplice in the offences so described."

Advani and his colleagues' conspiracy falls pat within these clauses. Note that "serious damage to property" caused by "weapons" as a means to "perpetrate indiscriminate violence" is regarded as an act of terrorism as heinous as murder. At Ayodhya on tha t day of shame, the Sangh Parivar's goons attacked presspersons, looted homes nearby, and attacked Muslims in the area. In the wake of the demolition, over 2,000 people lost their lives. Article 1 clearly says it "shall not be regarded as a political off ence". If India could not have dubbed Advani's offence as a political one had Nepal or Bhutan sought his extradition in an identical case, how can its Ministers take the plea merely because the police is under their thumb?

THERE is another aspect, besides. At the current session of the United Nations General Assembly, India launched with great fanfare a campaign in support of its draft "Comprehensive Convention on the Suppression of International Terrorism". Article 2 of t he Convention defines the offence: "Any person commits the offence within the meaning of this convention if that person unlawfully and intentionally causes or threatens to cause violence by means of firearms, weapons, explosives, any lethal device or dan gerous substances which results or is likely to result in death or serious bodily injury to a person or a group of persons or serious damage to property, whether used (sic.) for public use, a state or government facility, a public transportation system o r an infrastructure facility."

Article 7 binds the states to offer mutual assistance in criminal matters as provided in their respective domestic laws; but it adds this overriding proviso: "Nevertheless, this assistance may not be refused on the sole ground that it concerns a p olitical offence or an offence connected with a political offence or an offence inspired by political motives." This is the Government of India's own formulation put forth to the international community. Its rejection of the Vajpayee-Advani Doctri ne of "political offences" is far wider than in any other document. With what face can the Government espouse this draft when three of its Ministers have been found prima facie guilty by a court of law of offences that fall within the Convention b ut refuse to quit office?

For long, Irish courts turned a Nelson's eye to terrorism perpetrated by nationalists in Northern Ireland. The Irish Times of December 8, 1982 reported a landmark judgment by Chief Justice O'Higgins which marked a break from the past: "The judicia l authorities on the scope of such offences have, in many respects, been rendered obsolete by the fact that modern terrorist violence... is often the antithesis of what could reasonably be regarded as political, either in itself or in its connecti ons."

The question depends on whether the circumstances "showed that the person charged was at the relevant time engaged, either directly or indirectly, in what reasonable, civilised people would regard as political activity".

Only those of the Sangh Parivar would claim demolition of a mosque as a legitimate "political activity".

THE Terrorist and Disruptive Activities (Prevention) Act (TADA) was enacted in 1985 in the context of terrorism in Punjab. The terrorists sought not only to undermine the authority of the state but to create a schism between Sikhs and Hindus who had live d together peacefully for centuries. As Law Minister A.K. Sen noted in the Statement of Objects and Reasons, dated May 17, 1985, their object was "to disrupt communal peace and harmony". Contrary to popular impression, TADA was aimed at such activity as well. Section 3 of TADA was carefully crafted to cover terrorism by communal elements:

"Whoever with intent to overawe the government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the co mmunity, or detains any person and threatens to kill or injure such person in order to compel the government or any other person to do or abstain from doing any act, commits a terrorist act."

Trials under TADA are speedier. They are conducted in Designated Courts. Why Advani & Co. were not charged under TADA needs to be explained. By all established definitions of "terrorism", the demolition of the Babri mosque was a "terrorist act". By all e stablished definitions of a "political offence", terrorism falls far outside it. Were Advani's and Vajpayee's test to pass muster, the armed militants in Kashmir and in northeastern India, the People's War Group (PWG) and other naxalite groups would be b eyond the reach of the law. It is disgraceful that in order to save Advani's tarnished skin, he and the Prime Minister should dishonestly stretch the law and set a dangerous precedent for use by law-breakers in power in the future and armed militants on the rampage at present.

None of the previous governments at the Centre (P.V. Narasimha Rao's, H.D. Deve Gowda's or I.K. Gujral's) was too keen on pursuing the matter. The Liberhan Commission of Inquiry has reduced itself to a joke. But there is an aspect which has been neglecte d. In the hawala case the Supreme Court ordered the CBI not to take instructions from the Government because Prime Minister P.V. Narasimha Rao was himself under a cloud. Does not the principle apply also to Advani as Home Minister? The court can be asked to rule on this issue. He has an honourable alternative - resign. There is good precedent for it.

British Home Secretary Reginald Maudling followed settled precedent when he resigned on July 18, 1972, the day the Prime Minister announced that the Director of Public Prosecutions had instructed the police to investigate into the affairs of John Poulson , a wealthy architect with whom Maudling had had a close business relationship in the mid-1960s. As The Economist noted, he was "neither accused nor suspected of any crime, either in connection with the bankrupt architect, Mr. John Poulson, or any one else. As, however, Mr. Poulson's other activities are now the subject of investigation by the Metropolitan Police, over whom the Home Secretary is police authority, it is sensible that Mr. Maudling should have given up the Home Office while th e lengthy inquiries go on." In the instant case, Advani is being prosecuted by the very agency which is under his control, the CBI.

It is unthinkable, of course, that Advani would do the decent thing. Every facet of his record since 1989 belies the hope. Whether the tortuous proceedings in the courts result in a conviction or not, Advani knows what he has done. Like a bishop u nfrocked he tries to brazen it out. But Advani will never feel clean for the rest of his life. He is uneasily conscious of that.

And that is true no less, of course, of his even more distinguished ministerial colleagues - Murli Manohar Joshi and Uma Bharati. To all three, one would pose two questions: Were the ones who attempted to assassinate President Chandrika Kumaratunga on De cember 18, 1999, out to commit a "political offence"? And, pray, what about the assassins of Gandhi, led by the RSS' own Nathuram Godse, and those of Indira Gandhi and Rajiv Gandhi? Were they also political offenders like L.K. Advani, Murli Manoha r Joshi and Uma Bharati?