The Hindu : CBI and Deja Vu

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Saturday, Aug 02, 2003

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CBI and Deja Vu

WITH THE HEARINGS on in the Rae Bareli court on the Ayodhya case, a controversy has broken out over the Central Bureau of Investigation's admission that it has no taped evidence of the allegedly inflammatory speeches made by high-ranking Bharatiya Janata Party leaders such as L.K. Advani, Murli Manohar Joshi and Uma Bharti. But what really deserves attention is an antecedent and much more serious issue. This is the manner in which conspiracy charges were dropped against these and five other Sangh Parivar leaders, who were accused by the CBI of plotting the events that eventually led to the demolition of the Babri Masjid. The Centre's defence, most vociferously articulated by the Union Law Minister, Arun Jaitley, is that nothing of the kind happened. The conspiracy charge, he asserted, was "never there in Rae Bareli." The charges and counter-charges have caused considerable confusion among the public, in the media, and in political circles. This is not surprising considering that they relate to a long, complex and tortuous process of bringing those guilty for demolishing the Babri Masjid to book. However, a close look at the salient facts in what is a protracted legal story reveals that the Centre's protestations of innocence are anything but convincing; actually, Mr. Jaitley's spin on the legal narrative conceals more than it reveals.

At the heart of the issue are a few crucial questions. Were the charges against Mr. Advani and others diluted? If so, what are the circumstances in which they were watered down? Does the Government's claim that no charges were dropped against the eight Sangh Parivar leaders have any factual basis? To answer these questions, it is important to begin at the very beginning. On December 6, 1992, the day the Babri Masjid was demolished, two First Information Reports were filed in the Ram Janmabhoomi police station. One (FIR No. 197) accused lakhs of unknown kar sevaks under a slew of Indian Penal Code sections that related to the demolition of the Masjid. The other (FIR No. 198) accused the eight Sangh Parivar leaders, including Mr. Advani, only under those sections usually used against people who make provocative speeches. These offensive speeches were made from a makeshift dais at Ram Katha Kunj, not far from the Masjid, on the morning of December 6, 1992. The origin of the present confusion lies in the manner in which these two cases were assigned. A week after the demolition, the first case was transferred to the CBI. The second case against Mr. Advani and others remained with the Uttar Pradesh police.

The U.P. CB-CID filed a charge-sheet in this case at Rae Bareli in February 1993. However, the legal course of the case was altered after the State, then under President's Rule, requested the Centre to have all Ayodhya-related cases transferred to the CBI. As a result, a special court was set up in Lucknow and a formal notification to this effect was issued after consulting the Allahabad High Court. Among the cases transferred to the Lucknow court was the conspiracy case (relating to FIR No. 197) and some 47 relatively less significant cases relating to the assault of media personnel. Case No. 198 was omitted even though it had already been handed over to the CBI. It was included by an amending notification later but the process of consulting the High Court was overlooked, an oversight that would prove costly for the prosecution and the cause of justice. Meanwhile, the CBI had filed a consolidated charge-sheet that covered the eight Sangh Parivar leaders and 32 others. This charge-sheet clearly accused the eight leaders of being a part of the criminal conspiracy to demolish the Mosque. Specifically, it charged that Mr. Advani's involvement with the conspiracy went back to the 1990 Rath Yatra and traced a pattern of events that ended with his speech on December 6, 1992, and the Mosque's demolition soon afterwards.

Charges were framed in 1997 against the accused, but revision petitions in the Allahabad High Court led to another legal twist. In 2001 the Court held, quite properly, that the amending notification, which sought the inclusion of the case against Mr. Advani and others, was "bad in law" as the prior sanction of the High Court had not been obtained. At the same time, the High Court made it clear that the "defect was curable." Perhaps even more significantly, it upheld the validity of the CBI's consolidated charge-sheet and the Lucknow special court's order framing charges against the accused. From here on, matters assumed a blatantly partisan dimension with two Chief Ministers, the BJP's Rajnath Singh and later the BJP's ally Ms. Mayawati, turning a deaf ear to demands that the technical "defect be cured." This could easily have been done by issuing a fresh notification with the consent of the High Court and would have resulted in Mr. Advani and the other Sangh Parivar leaders being tried for conspiracy in the Lucknow court. Rather than do this, the U.P. Government transferred the case against the eight leaders to a special court in Rae Bareli, where the CBI recently filed a charge-sheet. Significantly, this charge-sheet limits itself to accusing the eight leaders of making provocative speeches. It makes no mention of their alleged role in the conspiracy to demolish the Masjid.

What does this narrative establish? First, that the Centre is pulling the wool over the nation's eyes by claiming there was no dilution of charges. "Section 120 B [conspiracy] was never a charge in the Rae Bareli case and so there is no question of dropping it," declares Mr. Jaitley. Factually, this is correct as far as it goes but the Law Minister is being too clever by half. It turns out that his reference points are both misleading and meaningless. What is the purpose of comparing the CBI's recent charge-sheet with the one originally lodged in the Rae Bareli court by the U.P. police? Surely, it is the two CBI charge-sheets — the consolidated one filed in Lucknow and the recent one in Rae Bareli — that should be compared in order to determine whether the charges have been diluted or not. The answer is: with the conspiracy angle abandoned, the charges have clearly been watered down.

Mr. Jaitley has suggested that the expansion of the charges to include conspiracy against Mr. Advani and others was a result of the Narasimha Rao Government's desire to foist the demolition charge on the BJP leadership. The merits of this allegation are irrelevant at this juncture. What is material is that the Lucknow special court framed charges on the basis of the CBI's composite charge-sheet and the Allahabad High Court upheld these charges and the validity of the charge-sheet. As for the CBI, it has maintained a deafening silence during this controversy. Its attitude to the case — evidently shaped under the shadow of the government of the day — is riddled with contradictions. It was only recently that the CBI pleaded unsuccessfully with the Lucknow court for the inclusion of the eight Sangh Parivar leaders in the case flowing from FIR No. 197. Significantly, a review petition filed by the CBI in the High Court is still pending. Having struggled until recently to make the conspiracy charge stick, it is deplorable that the same investigating agency should now file a charge-sheet that makes no mention of it. During the Rajiv Gandhi administration in the 1980s, the CBI was complicit in the cover-up of the Bofors corruption scandal; the political pressures continued in a different way during the Chandra Shekhar interlude and the Narasimha Rao administration in the 1990s. During much of the last decade, the CBI has done a valiant job of saving and taking forward the Bofors criminal case against heavy odds. The gain in credibility and reputation for independent, fearless investigation and prosecution is being undone by the way in which grave charges against the Deputy Prime Minister and other powerful persons have been compromised in the most recent period.

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