BABARI MASJID

S. Sahay on Scope of Article 138(2)

Some constitutional experts argue that a distinction needs to be made between governance and Government. According to them when a State is under President's Rule there is governance but no Government, which is possible only under a constitutionally elected regime. This is a plausible argument and hence even if one were to assume that the state of UP under President's Rule would agree with the Centre and throw the Ayodhya dispute into the lap of the Supreme Court (SC), and Parliament would pass the necessary law, it would be open to challenge and a legal challenge would imply delay.

The Government may win or lose this round. If it loses, it is back to square one; if it wins, the problem of another kind will begin. For Parliament has the power to confer fresh jurisdiction on the SC; it cannot set the pace for it. All that it can do is to pray for a day-to-day hearing of the case and even if the court were to agree to it a constitutional expert estimates that it would continue beyond this century. Why? Because neither the court nor Parliament can short-circuit the substantive law, including the Indian Evidence Act. Our SC is one of the most overworked in the world and it would be difficult to assign five judges, which one imagines would be the minimum required by the new legislation for the case. To make matters worse, the present crop of judges would be retiring one after another and only very few of them would be seeing the advent of the new century in office. There will be legal complication as and when a judge sitting on the Bench retires.

It will be recalled that the SC, after what some consider to be an unconscionable delay, refused to give advisory opinion on the Ayodhya issue. It refused to go into the question such as whether a temple existed where the Babari Masjid stood. This refusal was possible under the SC's advisory jurisdiction because the court had earlier held that it was by no means bound to give advisory opinion on vague issues. Clearly this will not be possible under Article 138(2) because this is one of the main issues in the suit figuring before the High Court. Evidence on the existence or otherwise of a temple on the site will necessarily have to be a detailed one and very time-consuming.

The conclusion is inevitable that while the wisdom of referring the Ayodhya issue to the SC under Article 138 (2) is in doubt, it was sheer ignorance on the part of the Home Minister to suggest a day-to-day. Hearing by the court would solve the issue expeditiously.The United Front Government may not reap any political benefit by bringing Article 138(2) into play... The matter is sub judice even now and yet the Ayodhya issue is being publicly debated. There is need for greater clarity over the application of the sub judice rule in matters of public importance.

 (Source: The Hindustan Times, 9 July, 1996)

Unfinished Innings by Madhav Godbole

Review by Inder Malhotra

Now that Godbole has chosen to tell all in his book, appropriately titled Unfinished Innings, it turns out that things were a lot worse than appeared three years ago. Not only had Godbole, ready with a succession of contingency plans to prevent the easily anticipated disaster at Ayodhya, been thwarted at every step but a whispering campaign was also started against him. When the prime minister and the home minister, who knew the truth, did nothing to counter the motivated propaganda, he had no option but to quit.

"The hero or the villain of the piece (depending on your perception) was Rajesh Pilot with a supporting cast of (S.) Rajgopal (cabinet secretary) and Sharad Pawar, defense minister," records Godbole... From Godbole's account S.B. Chavan emerges as a spineless wonder.  However, the man whose contribution to the sordid drama was even more dishonorable was P.V. Narasimha Rao. In order to escape accountability, he was happy to let Godbole be made a scapegoat.

The most important part of Godbole's book (is) the chapter on "The Ayodhya Debacle". As a first-hand account of the events and non-events leading to the tragedy of December 6, 1992, this chapter, spread over 87 pages, has a ring of both authenticity and credibility. He has made detailed references to many top-level meetings. Other participants in these confabulations can surely controvert him if he is wrong. Significantly, no one has done so, at any rate, not so far. Moreover, Godbole's. meticulous mention of numerous documents prepared by the Home Ministry, often with the cooperation of the Law Ministry, is compelling.

The sum of Godbole’s revelation is that the charge of the Narasimha Rao government's "negligence and willful refusal to discharge its obligations" (in relation to Babari Masjid), endorsed by the Citizens' Tribunal comprising some of the country's eminent judges, was right- and Rao's excuses for his deliberate inaction, profoundly wrong.

Indeed, in the light of what Godbole has to say and what is on official record, Rao's subsequent apologia in Parliament amounts to misleading the two Houses. His more recent declaration that there never was, nor ever could be, a meeting ground between him and the BJP turns out to be totally disingenuous.

 (Source: The India Today, 31 July, 1996)

 Anti-BJPism cannot be that glue that keeps people together.

-L.K. Advani, BJP President