Debating India


Brass Targe

Ranjit Bhushan

Saturday 26 July 2003, by BHUSHAN*B.

Article Outlook India, ?dition du 26 juillet 2003.

"The aforesaid acts of Shri Balasaheb Thackeray, Shri L.K. Advani, Shri Kalyan Singh, Shri Ashok Singhal, Murli Manohar Joshi (and others)...constitute offences under Section 120-B, 153-A, 153-B, 295, 295-A and 505 IPC...." The CBI’s consolidated chargesheet, October 4, 1993

The Ayodhya case has come up for discussion, debate and motion 45 times in Parliament, ever since the demolition of the Babri Masjid at the disputed site on December 6, 1992. Last week, the issue was raised amid uproar, for the 46th time , on the opening day of the monsoon session and, according to indications, this time it may prove to be more complex than before: it threatens to put, among others, the prized scalp of deputy prime minister L.K. Advani directly in the line of fire.

Even as a battle, centring on the fate of two senior cabinet ministers, is being fought by legal eagles and politicians, the combined Opposition maintains that the charges under 120-B against Advani, Union hrd minister,

Murli Manohar Joshi and Madhya Pradesh chief ministerial hopeful Uma Bharti and others had been deliberately dropped by the CBI in the latest supplementary chargesheet presented before the special court in Rae Bareli on May 30 this year. The issue held up proceedings for two consecutive days in this monsoon session of Parliament.

The crucial Sections 120-A and 120-B relate to involvement of the accused in criminal conspiracy, defined by the Indian Penal Code (IPC) as "when two or more persons agree to cause or be done (a) an illegal act", one where "no agreement except an agreement to commit an offence shall amount to criminal conspiracy". The punishment for such an offence is life imprisonment or imprisonment of up to 10 years, in addition to hefty fines.

Also, if criminal conspiracy charges be included there could be a question mark on whether those charged can contest elections. The Election Commission may well decide to review their nominations.

The seriousness of the case is not lost on the BJP. Should the Supreme Court, which is currently hearing revision petitions filed by journalist-MP Kuldip Nayar and Ayodhya litigant, Mohammed Aslam, uphold their plea for including the charges relating to criminal conspiracy against Advani and others, the situation could become tricky for the deputy prime minister. Says Nayar: "If the Supreme Court takes cognisance of my petition, Advani will have no option but to quit. Of course, if the conspiracy is actually proved, then the consequences are even graver.’’

In the light of the recent observation of the Supreme Court that no one with criminal charges against them can contest elections, there’s a certain nervousness in the BJP camp. For the record, though, the party says the government has done nothing to scuttle the case. Says BJP general secretary Pramod Mahajan: "If the government’s intent was to misuse the CBI, the case itself wouldn’t be there after five years of NDA. After all, that is what the Congress always does-gets rid of cases against its leaders after coming to power."

But such attempts at holier-than-thou posturing would hardly suffice as there are more scares in store. Former UP CM and BJP’s bete noire Kalyan Singh, who too has been charged in the demolition case, told journalists last week that he was willing to testify in a court of law about the conspiracy involving Advani & co. Legal experts like Rajeev Dhavan say that can be quite damaging. "If the then chief minister, who presided over the demolition, is willing to talk then that constitutes solid evidence, as far as the conspiracy angle is concerned."

BJP’s Vijay Kumar Malhotra, however, resorted to the rhetorical ways of parry and thrust to thwart such fears and allegations: "If, as the Congress is demanding that Advani should quit, is applied to their own party, there will be virtually no one left to hold office there." The Advani camp maintains the deputy PM’s position is that "there is nothing to be apologetic about the Ayodhya movement.’’

While it is true that the whole Ayodhya dispute is mired in litigation about various aspects, from the ownership of land to the actual demolition, the story of case 198/92, which involves Advani, Joshi and others, has a special political meaning. So, while the Ayodhya litigation may go on for ever, a direct political fallout could be triggered off by any development in case 198/92. And it is this particular case, which the Opposition wants to highlight.

The history of the demolition case is a complex one. An fir was filed on December 6, 1992, by the UP police and included-besides Advani, Joshi and Uma Bharti-VHP leaders like Ashok Singhal, Giriraj Kishore, Vinay Katiyar, Vishnu Hari Dalmiya and Sadhvi Rithambara.

Sections applied were 153-A: "promoting enmity between different groups on grounds of religion"; 153-B: "making assertions prejudicial to national integration" and 505: "making statements conducing to public mischief". Since it had been filed by a BJP government, Section 120-B was left out.

The UP government, which was put under President’s rule soon after the demolition, had a Congress governor, Motilal Vora. A special court was established by him at Lalitpur in consultation with the Allahabad High Court to try out the conspiracy case. The catch lies precisely there. According to Arun Jaitley, the Narsimha Rao government, trying to wriggle out of a tight situation in the aftermath of the demolition, had decided to introduce the conspiracy angle. A consolidated chargesheet was filed on October 4, 1993, by the CBI. In it Section 120-B had been included against Advani and others

On August 27, 1994, the additional chief judicial magistrate committed the case to the special sessions court, Lucknow. The consolidated chargesheet went to additional sessions judge J.P.Shrivastava who ordered framing of charges again under sections 147 (punishment for rioting); 153-A; 153-B; 295 (injuring or defiling place of worship); 295-A (deliberate and malicious acts intended to outrage religious feelings); and 505 read with section 120-B.

The explanation that the CBI now gives for not including 120-B in the latest chargesheet is that it had earlier pressed charges without consulting the Allahabad High Court. This anomaly could have been corrected through a fresh notification from the UP government. This has not happened.

The only way out is for the CBI to move the Supreme Court. With a BJP-led government, it has shown no inclination to do this. Says Congress Rajya Sabha member Kapil Sibal: "But even more critically, of the 700 witnesses examined in the first chargesheet, barely 39-odd witnesses have been included in the latest supplementary."

Clearly, the case is far from over. Asserts Jaitley: "It is for the judge at Rae Bareli to accept, add or delete charges made by the CBI. The Parliament can’t do that.That would be a terrible negation of the rule of law." The point here is that with the number of eyewitnesses reduced and the actual incident more than a decade old, it would require much doing to make the pendulum swing against the BJP. On the other hand, if conspiracy becomes an intrinsic part of the chargesheet against Advani and others, it could be a serious setback to the deputy PM’s career.

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