A.G. Noorani on Prosecution of Advani for Demolitior
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 President. L.K. Advani says that the demolition of the Babari 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 Stinagar? 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 defences in pursuance of that conspiracy. Also charged were two other Union Ministers, Murli Manohar Joshi and Uma Bharati 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 September 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/Babari Masjid was hatched by the accused persons in the beginning of 1990 and was completed on 6-12-1992. L.K. 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 charge Bala Saheb Thakre, L.K. Advani, Kalyan Singh, 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 accused shall be asked whether he pleads guilty of the offence charged or claims to be tried". In short, the accused must himself be physically presem 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 averted opening of the trial for a full two years since October 1997.
The Sessions Judge's 61-page order is a pulled document which (has been) published in full as a CPI(publication. It is entitled "Ayodhya Conspiracy of Saffi Brigade Unmasked" (CPI(M); A.K.G. Bhavan; 27 Bl Vir Singh Marg, New Delhi-110001; Rs.3). The Session Judge's order recorded: "On 5-12-1992 a secret meeting was held at the house of Vinay Katiyar which was attended by L.K. Advani, Pawan Kumar Pandey and 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 assembled near Ram Janam Bhoomi/Babari Masjid on 6-12-92 and L.K. 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 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 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 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 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 Vajpayee sang the 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?
... In an article in Indian Express on October 16, 1990 and in a box item in Frontline, May 22, 1998. 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 trial to begin ... 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. Law Minister A.K. Sen noted in the Statement of Objects and Reasons, dated May 17, 1985, the (terrorists) object was "to disrupt communal peace and harmony" ... Section 3 of TADA was carefully crafted to cover terrorism by communal elements ...
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 Babari mosque was a "terrorist act" ... 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.
... 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 ..
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 unfrocked 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 - M.M. Joshi and Uma Bharati. To all three, one would pose two questions: Were the ones who attempted to assassinate Sri Lanka President Kumaratunga on December 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, M.M. Joshi and Uma Bharati? (Source: The Indian Express, 16 October, 1990)
Jethmalani's Legal Opinion in 1990 On the Law and the Masjid's Demolition
"The Indian Penal Code makes it a serious criminal offence to pull down any place of worship. It is no defence in law that the place of worship was constructed five hundred years ago on the site of another demolished place of worship belonging to the community of the accused.
The throngs that threaten to converge on Ayodhya and pull down the mosque will in the eye of law be an unlawful assembly determined to commit offences of mischief, criminal trespass, wounding of religious feelings and desecration of a holy place. Grievous injury and killings as possible consequences will be within the reasonable contemplation of its members. It would be the plain duty of the Government to tackle this situation according to the law of the land. The law doubtless re quires the state to use all the force at its command to disperse the unlawful assembly and prevent the commission of the threatened offences. The resulting mayhem and loss of life will only be legitimate consequences of the execution of legal and constitutional duty. Every sane person must therefore pause and do a bit of rational introspection while there is still some time left -however short.
"The time bomb is ticking away. When it explodes communal harmony and national integration will be the prime casualties. The nation will not emerge stronger but weakened and debilitated beyond measure. L.K. Advani is a Member of Parliament. He has s worn to uphold the law and the Constitution.
"While he will lead the assembly of law-breakers what does he expect the U.P. Government to do? Its Ministers are also sworn to uphold the law and Constitution. The police force is statutorily committed to neutralise the marching hordes even though composed of Sadhus, Acharyas and otherwise respectable political leaders. There is no loophole or ambiguity in the law." - Indian Express, October 16, 1990.
(Source: The Indian Express, 16 October, 1990) (Courtesy: The Frontline, 7 January, 2000)
