If there is anybody worried after the judgment of the Special CBI Court on the demolition of the Babri Masjid in 1992, it is the Central Bureau of Investigation (CBI). The Special Judge said: "The charge sheet has no evidence on the basis of which it can be established that the named accused had incited any riot or were part of it." This is a serious admonition of the investigating agency.
The judge pointed out another drawback while saying: “As far as the prosecution witnesses describing slogans raised by the accused and have pointed to some accused saying they raised the slogan - ek dhakka aur do Babri Masjid tod do (give one more push to demolish Babri Masjid) - the charge-sheet makes it clear there were lakhs of Kar Sewaks in the complex and they were raising slogans, on the question of the named accused raising these slogans, in this respect no record or matching voice samples have been presented."
How did the CBI mix the names of the accused with anti-social Kar Sewaks?, the court asked. The CBI has a duty to answer this question and to introspect for preparing such a useless charge-sheet. "That the named accused got together in common cause with anti-social Kar Sewaks to bring down the disputed structure, there is no evidence in the chargesheet to prove this. The leaders seated on stage and those near the Ram chabutara - Ashok Singhal, Vijaya Raje Scindia - did not suspect that a section of the Kar Sewaks will get agitated and climb the disputed structure."
The court recognised the deposition of a witness who said the CBI tampered the video and audio recorded evidence material. "Which accused person gave what speech on December 6, 1992, the prosecution has not managed to prove this with evidence. The video cassettes that have been presented, their related witnesses have themselves accepted these are edited and tampered." This is a serious conclusion and looks like a charge against the CBI. Is CBI interested in answering this question?
The CBI was also found to have failed to tell the court which speech resulted in provoking mobs to destroy the Babri ‘structure’. "To prove an offence under Section 153 A and 153 A of IPC (Indian Penal Code), the prosecution has to prove that which accused gave what specific speech that led to enmity between two groups and led to a breakdown in communal harmony. If the accused have merely given a inciting speech only on that basis the person cannot be pronounced guilty," the court said.
There is another failure of CBI that the court found: "On the question of the accused raising slogans, the recordings of slogans raised by a specific accused were not correlated with voice samples of that specific accused and presented in court, which is a strong evidence about which accused raised which specific slogan that led to religious sentiments being hurt."
The investigating agency was found wanting since the beginning. It committed several procedural, legal and technical mistakes of substantial nature that led to procrastination of litigation and also invited the Supreme Court’s intervention with special powers to investigate some top BJP leaders also.
Amending FIRs and Adding Names
A special court was set up in 1993 at Lalitpur in Uttar Pradesh for conducting a trial of these cases, in consultation with the Allahabad High Court. Before the transfer, the Special Magistrate had added charges of conspiracy to the Kars Sewaks FIR. The UP government notified the trial against the Kar Sewaks. This does not deal with the allegations against high= profile politicians who are alleged to have provoked the destruction.
The then UP government issued a notification after amending the earlier one, to include the FIR against political leaders, which was not mentioned in previous notification. This was struck down for lack of consultation with the High Court under Section 11(1) of the Criminal Procedure Code.
Later, after completing the investigation, the CBI has filed a consolidated charge sheet against the 48 accused, including Balasaheb Thackeray, Kalyan Singh, Moreshwar Save, Champat Rai Bansal, Mahant Avaidyanath, Dharam Das, Mahant Nritya Gopal Das, Param Hans Ram Chandra Das, and others on October 5, 1993.
The Charge that Could not Stand in High Court
The Bharatiya Janata Party’s L.K. Advani, Vishwa Hindu Parishad’s Ashok Singhal, Vinay Katiar, Uma Bharati, Sadhvi Ritambara, Murli Manohar Joshi, Giriraj Kishore and Vishnu Hari Dalmia were named in supplementary charge sheet filed by CBI in 1996.
The Special Judge at Lucknow perused the charge sheets, expressed satisfaction that a prima facie case was made out against the eight leaders, and accorded permission to prosecute, on September 9, 1997. This order of the Special Judge was challenged before the Allahabad High Court and, on February 12, 2001, the High Court set aside the order.
There was a technical issue that led to nullification of the notification transferring FIR No. 198 to Lucknow. It was a curable defect if the state government permits the CBI. The CBI made a request. But the then UP government turned down the request. Meanwhile, the CBI chose to file a supplementary charge sheet before the Judicial Magistrate in Rae Bareli for prosecution of BJP leaders and other political leaders.
There was another development in 2001. The Special Court dropped the charges against the 21 accused, including all leaders of various political parties, eight accused and 13 others who were included in supplementary charge sheet. This judgment of was questioned as illegal before the Allahabad High Court.
The High Court has upheld the Special Judge’s order dropping the charges based on the difference between the FIR against Kar Sewaks and political leaders. The High Court also found the additional charge of conspiracy against the leaders, levelled in the supplementary charge-sheet, as not acceptable because the same was absent in its earlier notification. The CBI’s supplementary charge-sheet filed at Rae Bareli had no charge of criminal conspiracy, which means that charge was never made out against the eight leaders.
Supreme Court Restores Charges
Thus, the High Court approved the discharge of these top leaders from allegations of conspiracy to destroy the ‘structure’ in Ayodhya.
At the preliminary stage itself, the CBI was under compulsion to take the issue to apex court. The CBI approached the Supreme Court in 2011 against the discharge of these political leaders. This appeal consumed six years, and in 2017, a bench of Justices Pinaki Chandra Ghose and Rohinton Fali Nariman heard the arguments for three days, March 22-23, and on April 6, 2017.
Justice Rohinton Nariman took the case beyond the procedural deficiencies that created hurdles and technical infirmities so far on prosecution of the high-profile accused. The Supreme Court bench has invoked its special powers under Article 142 of our Constitution, to do complete justice, and ordered the consolidation of all trials arising from all the FIRs before the Special Court at Lucknow.
The Supreme Court rightly agreed with the judgment of the Allahabad High Court that both the offences -- the demolition by Kar-Sewaks and instigation by the leaders -- formed a part of the same transaction. But the SC did not agree with the conclusion of the Allahabad High Court’s 2011 judgment.
The apex court held that the HC was wrong and transferred the trial from Rae Bareli to the Special Judge in Lucknow. The Supreme Court directed the Special Judge at Lucknow to add the charge of criminal conspiracy against L.K. Advani, Vinay Katiar, Uma Bharati, Sadhvi Ritambara, Murli Manohar Joshi and Vishnu Hari Dalmia, which was dropped by HC.
As decades passed, the SC directed the Lucknow court to hear all matters on a day-to-day basis. In addition, the Supreme Court’s judgment barred the transfer of the judge conducting the trial, de novo trial, and grant of adjournments for want of witnesses, unless necessary, and for reasons to be recorded in writing. Again, it is because of the deadline fixed by the SC that the trial of these cases ended today. First it was August 19, later it was extended to September 30.
The court pointed out a series of failure of CBI and believed that it had tampered the electronic record to implicate the top accused persons. These are serious allegations against the central investigating agency, raising questions on its ‘independent’ functioning.
The CBI has a constitutional obligation to explain why such a shabby investigation was done that led the judiciary to waste 28 years of its valuable time in concluding that there was nothing to convict the accused.
The writer is former Chief Information Commissioner and Professor of Constitutional Law. The views are personal.