Requiem For Secular India

It is a well-worn saying that courts are ‘courts of law and not justice’. This was once again brought home by the decision of the special CBI court in the Babri Masjid demolition case in which all accused were acquitted.

Court hearings had continued over the last three years. Tons of evidence adduced by the Central Bureau of Investigation (CBI) was found unconvincing by the court. This judgment raises several questions.

At the outset, the Supreme Court needs to be complimented for putting this case on a priority roaster and laying down that the case must be heard on a day to day basis. The judge was even given extension in service to complete the task. But the outcome has come as a big surprise and huge disappointment.

One wonders whether the report of the Liberhan Commission was placed before the court. The commission consisted of a former chief justice of a high court. It faced innumerable difficulties in its work due to the unco-operative attitude, not only of the UP government but also the central UPA government, which had set up the commission.

It made no difference which political party was in power. Two non-BJP chief ministers—Mulayam Singh Yadav and Mayawati--were in power in UP for nearly 12.5 years, before the Liberhan Commission submitted its report in 2009. Both of them professed to be staunchly secular and anti-BJP. One wonders why they did not support the Liberhan Commission in finding the truth and identifying the forces behind the demolition of Babri.

The same holds true with respect to the central government wherein Deve Gowda of the Janata Dal was Prime Minister for 324 days, followed by I.K. Gujral, also of the Janata Dal, for 322 days. Manmohan Singh was the Prime Minister of the UPA government from May 2004 till the submission of the report by the Commission in 2009.

In utter frustration, the commission has stated: I cannot restrain myself from observing that attempts were made to scuttle the commission.

The stays granted by the high courts of Delhi and Allahabad, often continued for ever, and enabled the witnesses to avoid appearing before the commission. One of them was Kalyan Singh who was the chief minister and had orchestrated the demolition of the Masjid by taking over the administration fully in his hands.

The commission has stated: “Kalyan Singh, a key figure, did not appear initially for a number of years and at every step got stay orders from courts. It is only after a decade [that] he issued a press statement about his knowledge about conspiracy for demolition.”

The commission has further stated: “Even when the witnesses were examined on the premises (sic) of their press statements issued by them, they backtracked from the statement issued to the press…The leading instances are Mulayam Singh, Kalyan Singh and many others who stated in press about the knowledge of the conspiracy for the demolition but on oath before the commission denied any such knowledge.”

Bal Thackeray, the then Shiv Sena Chief, had publicly and proudly announced that Shiv Sena was a part of the conspiracy to demolish the Babri mosque.

The Liberhan commission has come to a considered conclusion that the structure could not have been demolished without careful preparation. The commission has given the list of political leaders and officers who, according to its assessment, were responsible for the destruction of the structure. Many of the accused before the CBI special court were in the list given by the commission in its report.

I am aware that though this was a judicial commission of enquiry, its findings are not binding on anyone and are just advisory. But, based as they are on evidence adduced before the commission, deserved to be taken note of.

While discarding the evidence produced before it, the CBI court has given reasons why it could not be accepted, namely, non-certification of audio cassettes by the forensic laboratories, non-production of negatives of photos etc. The legal team of the CBI should have taken care to fulfil these requirements before producing the evidence before the court.

This case which has a long history of 28 years and has seen the stand of the CBI changing, depending on which government, whether the NDA or the UPA, was in power at the centre. Looking to the CBI’s record ever since its inception, this is not surprising. Even the Supreme Court has commented on it time and again by calling it a ‘caged parrot’ and other epithets.

The Havala case was only one of the scores of cases in which the CBI came for chastisement. The question of enacting a separate law for the CBI has been pending for the last 50 years but due to the opposition of the states, it has made no headway. And considering the trust deficit in the centre-state relations, it is unlikely to be passed in the foreseeable future.

My repeated suggestions to discuss this subject fully in the Inter State Council and to provide in the new enactment for a governing board for the CBI comprising central ministers and a few chief ministers, by rotation, are the only way in which independence and autonomy of the CBI can be ensured.

But, in cases like the Babri Masjid demolition, the CBI comes so handy that the central government is unlikely to take any initiative to enact a separate law for the CBI. This is therefore a cry in the wilderness, for ever.

The CBI special court seems to believe that the infiltrators from Pakistan were responsible for the demolition of Babri. As far as I am aware, there was no evidence with the central agencies to show the involvement of Pakistan. But, it is imperative that the government makes an authoritative statement on the subject.

The crux of the question is whether the strong, solid structure of the Babri Masjid could have been raised to the ground in just 5-6 hours by karsevaks by spontaneous, on-the spur- of-the-moment action, without any preparations. The distinction between ‘preparation’ and ‘conspiracy’ is very thin.

For making preparation to demolish a structure too, people have to come together, not necessarily in ‘one room’ as the CBI court seems to believe. Consultations can even be on phone or by other modes of communication.

The fact that the Ram Lalla idols were removed by vigilant karsevaks before the main dome of the mosque was brought down and were put back at the original place at about 7 o’clock in the evening is very telling.

The Supreme Court itself had noted that the demolition of Babri was illegal. Whatever the merits of the Supreme Court decision in the land dispute by which the possession of the whole site was given to Hindus, one had hoped that at least in the criminal case of palpably illegal demolition of the structure, those responsible would be brought to book and the rule of law would be established but even this hope has been belied.

The only way in which the wrong can be rectified is by filing an appeal in the high court of Allahabad, and later if necessary, even in the Supreme Court.

Mention must be made of the disturbing thought which has been troubling me. When Indira Gandhi was bent on making major changes in the Constitution during the Emergency in 1975-77, the Supreme Court had drawn a red line and declared that Parliament was not competent to amend the Constitution’s basic structure. The court had not defined the term in its judgment but has, in its subsequent judgments, held that the basic structure includes India’s federal and democratic governance, rule of law, independence of the judiciary, division of powers, secularism and so on.

But, happenings in the last few years have shown that amendment of the Constitution is not necessary to destroy the basic structure. Concerted actions achieve the same purpose. As a result, sadly, even with the pertinent provisions of the basic structure remaining in tact, India is no longer what the Constitution had envisaged.

Madhav Godbole is a former Union Home Secretary and Secretary, Justice