Babri case: U.P. Opposition in a fix

By J.P. Shukla

LUCKNOW, MAY 11. The decision of the special CBI court at Lucknow to put on hold the trial of the BJP leaders in the Babri Masjid demolition case has placed the opposition parties in Uttar Pradesh in a dilemma.

The parties want to pin down the BJP-led State Government, but find themselves unable to arouse public opinion effectively. The technical flaw in the notification issued to refer the case to the special court has provided an opportunity to the BJP to pronounce that its leaders were innocent, despite the CBI having found sufficient ground to file chargesheet against them.

What proved worse for the opposition was the difference of opinion over fixing responsibility for the issuance of the flawed notification that was subsequently struck down by the Allahabad High Court. When the case was handed over to the CBI, Uttar Pradesh was under President's rule.

The Bahujan Samaj Party leader, Ms. Mayawati, while demanding that a rectified notification be issued to facilitate the trial of the accused, including the Union Ministers, Mr. L.K. Advani, Mr. Murli Manohar Joshi and Ms. Uma Bharati, criticised the Congress for conniving with the BJP. She said that the then State Government had deliberately issued a defective notification to help the accused BJP leaders. The Samajwadi Party and the Congress have been vociferously demanding a fresh notification to take the trial to its logical end, but have gone soft on the persons responsible for issuing the notification. The Congress particularly finds it difficult to explain how the flaw had been allowed to creep in and who was responsible.

The situation has come as a much sought after respite for the BJP whose leaders have claimed that the way the defective notification was issued amply proved that the then Congress Government was in undue hurry to implicate the BJP leaders. It did not have scruple to examine the legal implications of the notification and wanted to punish the top BJP leaders by any means.

Now as the State Government has rejected the demand for a fresh notification, the opposition feels cheated. There is little way for it to force the Government to issue a fresh notification. The State BJP president, Mr. Kalraj Mishra, has taken the position that in his opinion his party leaders were innocent and that there was no ground to prosecute them. The question to issue a fresh notification thus did not arise. The Allahabad High Court, while striking down the proceedings against the accused in the special court on the ground that these were based on a flawed notification, held that a cured notification could be issued. The Court did not give any directive that it was obligatory on the part of the Government to issue such a notification. The State Government volunteering to issue a corrected notification was thus out of question.

To support its cause, the BJP leaders have cited the then Congress Government decision to withdraw various cases filed in courts against its leaders on the basis of the Shah Commission report. Even in Uttar Pradesh, judicial commissions of enquiry had been constituted to enquire into excesses committed during the emergency. In many instances, culprits had been pin-pointed and recommendations made for their prosecution. When the Congress returned to power in 1980, it rejected all commission reports. Not a single person was prosecuted or convicted for the excesses.

In West Bengal, in the successive waves of Naxalite movements, 1967 onwards, cases were filed against Marxists for their involvement in crimes including murders and dacoities. Some of those involved were even convicted and awarded prison terms. When the Leftist government returned to power, cases were not only withdrawn but even those convicted and undergoing prison terms were pardoned, said Mr. Mishra.

Politically, thus, the Opposition finds itself on a weak turf while attempting to pin down the BJP. The CBI still has the option to appeal in the Supreme Court against the order. Whether the apex court would reverse the High Court order is doubtful. The CBI counsel has already put on record that it was not for the prosecuting agency to dictate to the State Government to issue a fresh notification. Some Muslim organisations have been talking of filing writ of mandamus seeking court directives to the State Government, but the possibility of their getting favourable orders from the Court was remote, legal experts said.

Govt. to go by court order

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