A campaign of sabotage

A Frontline investigation of the Liberhan Commission's correspondence reveals that the Central Bureau of Investigation's decision not to appeal against Deputy Prime Minister L.K. Advani's discharge from trial is part of a larger offensive to hide the truth about the demolition of the Babri Masjid.

in New Delhi

AMONG the first things that Central Bureau of Investigation (CBI) Director U.S. Misra did after taking office on December 6 was to order his organisation not to appeal against a Rae Bareli court's decision to discharge Deputy Prime Minister L.K. Advani from trial for his alleged role in the demolition of the Babri Masjid in December 1992. Now, a Frontline investigation has found that the CBI and the Cabinet Secretariat, under which the CBI functions, have colluded to block independent judicial scrutiny of the tragic event. Documents available with Frontline show that both violated laws to ensure that the Justice M.S. Liberhan Commission was denied in its working the services of investigators who have played a key role. Sadly, the campaign of sabotage launched against the Liberhan Commission is just a small part of a larger enterprise to bring down the pillars of justice.

Even as the Justice Liberhan Commission battles a March 31 deadline to submit its findings, the body has been stripped of the services of CBI personnel assigned to it in 1993. Even since they were first assigned to the Commission, the CBI personnel have helped it sift through the mass of evidence gathered by Justice Liberhan and to serve summons to witnesses over the heads of sometimes-obstructive State police forces. The CBI now claims it cannot find personnel for the Commission, an assertion belied by facts. The Cabinet Secretariat, in turn, has violated the plain language of the law by accepting the CBI position. Frontline found that the CBI's claims not to have personnel available had not stopped it from relieving officers involved in its own criminal investigation of the Babri Masjid demolition, and that the organisation in any case had no legal right to make a call on the issue.

Several CBI personnel familiar with the organisation's criminal investigation of the Babri Masjid demolition were made available to the Liberhan Commission in 1993. Superintendent of Police S.R. Agrawal supervised a team made up of Additional Superintendent of Police (ASP) T.P. Jha, Inspectors Munshi Ram and Babu Lal, two head constables and two constables. Agrawal retired in June 2001, but stayed on at the Commission for a year as an independent consultant and his salary was paid by the CBI. At the end of his term, Agrawal was replaced by Jha as head of the CBI investigators on the Liberhan Commission's staff. In June 2003, Jha was suddenly transferred to the CBI's Kolkata offices. Even as the Commission prepared to close its proceedings, it was left with no personnel familiar both with the evidence and with criminal investigation procedures.

On July 25, 2003, S.K. Pachauri, the Secretary of the Liberhan Commission, wrote to the Government of India asking for replacements. "The work of the Commission," Pachauri's letter stated, "is at a very advanced stage. Final arguments have recently commenced and the presence of senior level officers... is essential at this juncture." It took the Cabinet Secretariat almost two months just to forward the Liberhan Commission's request to the CBI. On September 22, a Joint Secretary in the Cabinet Secretariat, Anup Mukerji, wrote to former CBI Director P.C. Sharma asking that "at least two officers of the CBI, one of the rank of SP/DSP and another in the rank of Inspector, may kindly be deputed to assist the Commission." A month later, on October 27, Mukerji let the Commission know that "the CBI has stated that due to an acute shortage of officers, it is not in a position to spare any officer".

PACHAURI responded to this letter with all the patience of a schoolteacher dealing with a particularly dim-witted child. He requested that this decision be reviewed, and politely demanded that "at least two officers of the CBI, i.e. one of the rank of SP/Dy. SP and another rank of the Inspector [sic.] who are well acquainted with the matter". The letter also pointed to the urgency of the situation. Although Pachauri requested "an early reply", the Cabinet Secretariat again took its time. The request was passed on by Mukerji to the CBI only on December 15. CBI official U.S. Dutt rejected this fresh request just two days later. His letter noted that the Liberhan Commission's request had "again been reviewed by the competent authority". It does not say who this "competent authority" in fact was.

It is clear from Dutt's letter that both the CBI and the Cabinet Secretariat violated the law. Section 5A of the Commissions of Inquiry Act, makes it clear that the CBI has no power to review such requests. "The Commission may," Section 5A states, "for the purpose of conducting any investigation pertaining to the inquiry utilise the services... of any officer or investigation agency with the concurrence of the Central Government (emphasis added)." The CBI is not the Central government; indeed, it is supposed to stay clear of government pressure on sensitive affairs. Nonetheless, it is clear the Union government never called a meeting that actually decided on the revoking of the consent given for personnel from the CBI to work with the Commission. In effect, the Cabinet Secretariat seems to have used the CBI as the front behind which to hide a politically convenient - but potentially controversial - decision.

Frontline also discovered that the CBI's claim that it had no personnel was, at the very least, disingenuous. At least one key officer associated with the Babri Masjid case, then Inspector-General of Police Radha Vinod Raju, was relieved and sent to Jammu and Kashmir as the State's Vigilance Commissioner last year. Raju had only just joined the CBI, and should have served a minimum tenure of seven-years. The Cabinet Secretariat overruled the CBI's protests and sent Raju back to his cadre after Jammu and Kashmir Chief Minister Mufti Mohammad Sayeed insisted Raju's services were needed as Vigilance Commissioner there. M. Narayanan, Senior Superintendent of Police, who actually put together the CBI's case against Advani, was denied promotion to the rank of Deputy Inspector-General until recently - another sign of the use of pressure to intimidate upstanding officers.

Interestingly, Pachauri's letter asking for additional CBI personnel was written just two days before the Liberhan Commission summoned former Uttar Pradesh Chief Minister Kalyan Singh to appear before it. The move was made after Kalyan Singh charged Advani with having played a role in the demolition of the Babri Masjid. The Liberhan Commission's problems, a senior government source speculated, may be a consequence of the ruling Bharatiya Janata Party's anger with the course of action the Commission took. Several BJP leaders have privately complained to the media that the Liberhan Commission is taking too long to complete its work, conveniently omitting to mention their own government's not-so-insignificant role in delaying proceedings. Now, the Liberhan Commission has been given just a three-month extension to complete its work, instead of the six months customarily granted to it over the last decade of its functioning.

NO one is certain just when CBI Director Mishra decided not to appeal against Advani's discharge from trial, but the deadline to appeal the September 2003 decision of the Rae Bareli court expired on December 22. It seems reasonable to suppose that the decision was taken at about the same time the Liberhan Commission's second request for personnel was denied. It is unclear whether the decision not to appeal against the Advani case was taken by P.C. Sharma, (Misra's predecessor in office) Misra, or officials holding charge in between their tenures.

Although news of the CBI decision broke only in January, the CBI has not stated just when it was made. What is clear, however, is that the decision marks a major change in the organisation's position. The 1993 charge-sheet filed by the CBI against Advani and 48 other alleged conspirators in Rae Bareli clearly states that "on 5.12.92, a secret meeting was held at the residence of Shri Vinay Katiyar, which was attended by S/Shri L.K. Advani, Pawan Pandey, etc. wherein a final decision to demolish the disputed structure was taken". It even asserts that Advani advised Kalyan Singh not to resign until the demolition was complete.

What made the CBI change its mind? In December 2001, the Lucknow Bench of the Allahabad High Court stopped trials that were due to commence before a Special Court in Lucknow, before which the CBI had filed what it called a consolidated charge-sheet. The High Court upheld the Special Court's decision to frame charges against the accused. It said, however, that the Special Court had no jurisdiction to try one specific case involving Advani. This was because the High Court had not been consulted by the State government before issuing the notification transferring the case to the Special Court. The Lucknow Bench, however, suggested that it was a minor problem and that it was "open for the State government to cure the legal infirmity". The Bahujan Samaj Party government in Uttar Pradesh backed by the BJP, showed no desire to do so. The CBI, in turn, chose not to appeal the Lucknow Bench's order, effectively shutting the door on the most politically sensitive case in Lucknow.

Even before the dust had settled on these events, the CBI announced that it would now revert to an "original" charge-sheet filed in Rae Bareli. The organisation, and Union Law Minister Arun Jaitley who energetically defended it in Parliament, forgot to mention that the charge-sheet was neither the CBI's nor original. The first `original' charge-sheet was in fact filed by the Uttar Pradesh Crime Branch in February 1993 before a court in Lalitpur. This was done even before the CBI began investigations. The Lalitpur court was subsequently moved to Rae Bareli. Now, Advani faced trial there - but not the separate proceedings in Lucknow. The Babri Masjid demolition case had thus been split up into discrete units, one relating to the conspiracy to carry out the outrage, and the other to carry it out actually. This flew in the face of established, common-sense law, which specifically states that crimes that are part of the same transaction be tried together: for example, an act of rape and physical violence preceding it constitute a single act of criminality.

In September last year, Advani was discharged by the Rae Bareli court in the single case still remaining against him. The CBI had six full volumes of evidence before it, reason enough to appeal against the decision. Now, Frontline's investigation of the Liberhan Commission correspondence shows that the CBI's decision not to appeal was part of a larger offensive to hide the truth about the demolition of the Babri Masjid. Ironically enough, the single-transaction doctrine was intended to protect the rights of criminal defendants, by ensuring that they did not face multiple trials for offences that constituted an organic entity. Here, the protection was forsaken to obfuscate and water down a trial. The CBI's legal officers who met prior to the filing of the consolidated charge-sheet, informed sources told Frontline, had themselves insisted on the necessity of a single trial. Ironically enough, sources familiar with the investigation say, Advani had a more-than-fair chance of acquittal if a consolidated trial had been heard in Lucknow, given that much of the evidence against him rested purely on circumstantial evidence and even heresay.

Both the Deputy Prime Minister and the Indian criminal justice system, then, could have fared well if law and ethical procedure had been followed. Sadly, neither has walked away from the remains of the Babri Masjid with reason to be happy.