Slow, yet steady

The Liberhan Commission inquiring into the demolition of the Babri Masjid goes ahead with its task in right earnest despite attempts to defeat the very purpose of the probe.

VENKITESH RAMAKRISHNAN in New Delhi

THE Justice M.S. Liberhan Commission, set up by the P.V. Narasimha Rao government 10 days after the demolition of the Babri Masjid in Ayodhya on December 6, 1992, was tasked with inquiring into the incident and unravelling the facts that led to the demol ition. The order setting up the commission stipulated that it complete the inquiry "as soon as possible but not later than three months" and submit its report immediately thereafter. Eight years hence, the commission is yet to submit its report.

It now appears that its work would get further prolonged. This, despite the fact that Justice Liberhan and the counsel for the Commission, Anupam Gupta, have injected a new vigour and purposiveness into its functioning since April. In a flurry of activit y, the Commission summoned many important witnesses, including former Uttar Pradesh Chief Minister Kalyan Singh, P.V. Narasimha Rao, Bharatiya Janata Party leaders such as L.K. Advani, Murli Manohar Joshi and Uma Bharati, Samajwadi Party (S.P.) leader Mu layam Singh Yadav and key officials such as Prabhath Kumar. This, according to Commission officials, indicates that the fact-finding inquiry is coming to a close.

While Uma Bharati and Mulayam Singh Yadav have deposed before the commission, Murli Manohar Joshi, Narasimha Rao and Advani have been asked to appear before it on December 19, 26 and 29 respectively. Obviously, the commission has made bold to question th e important players associated with the case.

Still, neither the officials nor Justice Liberhan himself is able to provide a definitive time-frame for the completion of the inquiry. A number of factors such as tardiness in the functioning of the commission, unwieldly terms of reference and, most imp ortant, witnesses' non-cooperation - are responsible for this reticence. In fact, the politicians and bureaucrat's among the witnesses have systematically adopted filibustering tactics, impeding the probe. Undoubtedly, this and the status of Justice Libe rhan as a sitting judge (he retired as the Chief Justice of Andhra Pradesh High Court on November 11, 2000) could have contributed to the inordinate delay in the completion of the commission's work. Justice Liberhan's responsibilities in the High Court r estricted the holdings of frequent sittings.

In fact, informed sources say the commission's was hampered by administrative factors from Day One. Although it was formed on December 16, 1992 it could begin work only in March 1993, after the conclusion of the stipulated three-month deadline to submit its report. Once the Commission started its work, there was some eagerness to get on with the work. However, enthusiasm wore off in six months. After a long period of inconsistent activity, only the last year and a half witnessed steady progress.

The commission has until the first week of December examined 83 witnesses - 53 for the government, 14 for the defence and 16 of the commission. The first category includes former Joint Director of the Intellegence Bureau (I.B.) N.C. Pandhi, whose deposit ion is considered a vital input, and many journalists, generally rated as important witnesses. The second category includes witnesses summoned on the basis of the deposition by leaders such as Congress(I) leader Arjun Singh; Ashok Singhal, the Vishwa Hin du Parishad's international working president; Sakshi Maharaj, former BJP member of Parliament and an active participant in the Ayodhya movement, who shifted allegiance to the S.P., and Mulayam Singh Yadav; and officials such as Madhav Godbole, who was U nion Home Secretary in 1992.

The quantum of evidence collected by the commission is huge, but for the report to be comprehensive several crucial components have to be gathered. The single most important factor that stands in the way of the completion of the inquiry is Kalyan Singh's refusal to depose despite four summons. On July 27, the commission issued a bailable warrant against Kalyan Singh, who has, since his expulsion from the BJP in 1999, formed the Rashtriya Kranti Dal (RKD). Kalyan Singh filed a petition on August 17 befor e the Delhi High Court seeking to quash the warrant. The court is yet to give its final order.

Commenting on Kalyan Singh's defiance, Justice Liberhan said that there were attempts from several quarters to defeat the very purpose of the commission. He said that senior Uttar Pradesh government officials and even Cabinet Secretary Prabhath Kumar, wh o was the Home Secretary at the time of the demolition, had deposed. "The absence and non-cooperation of Kalyan Singh becomes all the more serious in this context," he observed. Kalyan Singh, he pointed out, chose not to appear in spite of having evinced in public a keen interest in the proceedings of the commission.

Questioning Kalyan Singh is of utmost importance as the inquiry cannot be legally and technically complete without a recorded statement of the person who was Chief Minister of the State when the incident happened. In 1992, Kalyan Singh also held the Home portfolio and, as such, law and order came under his direct charge. He had issued important orders to the district administration, one of which asked them not to open fire at the kar sevaks "under any circumstances".

Evidently, Kalyan Singh's personal involvement in the Ayodhya incidents is a vital factor in the matter under consideration and needs to be examined thoroughly by the commission. According to legal experts, if the commission were to conclude that the rol e of the Kalyan Singh government was questionable, then certainly the Chief Minister's actions would come in for direct criticism. If the commission were to conclude that the government's functioning was beyond reproach, then it would have to laud the Ch ief Minister's role. In short, the commission's report would be woefully inadequate if Kalyan Singh's deposition is not part of it.

But Kalyan Singh would have none of these arguments. In his opinion, the commission was merely duplicating the functions of a special Central Bureau of Investigation (CBI) court that is looking into the criminal aspects of the demolition. "The CBI court has already reached the stage of framing charges. If I go before the commission now and depose, my defence in the CBI case, where I am an accused, would be exposed," he told Frontline over telephone.

Anupam Gupta counters this by pointing out that Kalyan Singh's defence in the CBI court is well protected under Section 6 of The Commissions Of Inquiry Act, 1952. Section 6 makes it amply clear that "no statement made by a person in the course of giving evidence before the commission shall subject him to, or be used against him in, any criminal or civil proceeding except a prosecution for giving false evidence by such a statement." Gupta highlighted this in the Delhi High Court, in his counter to Kalyan Singh's petition.

Yet Kalyan Singh maintains that the commission cannot compel him to depose before it. Asked why he avoided the commission, he said: "If I appear as a witness, Union Home Minister L. K. Advani will be summoned next, and that would complicate matters."

Earlier he told a section of the Lucknow media that there was a conspiracy behind the demolition of the Babri Masjid and that he was made an unwitting victim of that. He had claimed that he was misled by the top leadership of the BJP into believing that there would be absolutely no trouble if kar seva was allowed in Ayodhya on December 6, 1992.

In the wake of these statements, the BJP leadership perhaps does not want Kalyan Singh to appear before the commission. Clearly, if he continues in this vein it would embarrass the BJP leadership although the pronouncements made before the commission do not signify any legal indictment. A probe under the Commission of Inquiry Act offers no punitive or prosecutory powers to the commission. Even its report would be only recommendatory in nature.

Yet the commission has evoked apprehension in many administrative, political and bureaucratic quarters. The cumulative effect of their fears has factored in the seemingly indefinite delay in the inquiry. The commission's work is expected to pick up momen tum now that Justice Liberhan can devote full-time attention to the matter.