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Dome of Darkness

The Allahabad High Court cites a technicality, but the criminal cases against Advani & Co. aren't over yet

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Dome of Darkness
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It's a scenario with a Kafkaesque touch: the accused who also happen to be the custodians of the law. And the chief one among them, home minister L.K. Advani, when pestered by reporters last week, irritatedly refused to comment on the Allahabad High Court order which halted one of the criminal cases against him. The case against Advani and seven others accused in the Babri Masjid demolition case, pending in the specialCBI court, was halted on a technical discrepancy. While his cabinet colleague, Uma Bharati—herself an accused—and other Sangh parivar elements jumped the gun and projected the court order as an acquittal, Advani was more cautious. For, as home minister it's his responsibility to ensure that an accused in a criminal case doesn't go scot-free. The question is: will he ensure his own trial?

Even more peeved was Arun Jaitley who, as Union law minister, is duty-bound to uphold the law of the land. Which means that if theCBI decides to challenge the high court order in the Supreme Court—to ensure that all the eight accused are tried in the specialCBI court—Jaitley cannot oppose the move. Realising that such a move by the CBI will go against the interests of the party, Jaitley is loath to commit himself to any position. His and Advani's discomfiture is understandable. The jubilant members of theBJP and the Sangh had little idea that the court order did not give any respite to the accused, leave alone acquitting them. In fact, defence lawyer I.V. Singh, who is fighting the case on behalf of Advani and others, is a worried man now. He sees no reason for celebration as "things have become more complicated for us now". When contacted on the phone by Outlook in Lucknow, he said: "There's a lot of confusion as the charges haven't been dropped against any of the accused. Now we will have to move the Supreme Court for quashing the fir on which proceedings have been halted."

There were two firs filed in the Babri case. The first—fir no. 197—was filed hours after the demolition of the mosque on December 6, '92, against Balasaheb Thackeray and 39 others, including L.K. Advani and Murli Manohar Joshi. Another fir (no. 198) was filed against Advani, Joshi, Uma Bharati, Ashok Singhal, Vinay Katiyar, Acharya Giriraj Kishore, Vishnu Hari Dalmiya and Sadhvi Rithambara charging them with provoking communal passions by giving inflammatory speeches, statements conducive to public mischief, rioting and unlawful assembly. This is the fir on which the latest high court observations were made.

The single-judge Lucknow bench of the Allahabad High Court had pointed out a technical anomaly and held that proper procedure wasn't followed when the second fir (no. 198) against Advani and others was clubbed together with fir no. 197 for hearing in the specialCBI bench. The bench described it as a "legal infirmity" and left it to the state government to "cure" it by issuing a fresh notification for initiating the trial for the cases mentioned in fir no. 198. TheBJP and VHP leadership was ecstatic when Justice Jagdish Bhalla set aside the notification issued by the then UP government to constitute the specialCBI bench as "improper and defective".

The current UP government's position is somewhat clear—it doesn't appear to be interested in accepting the high court's suggestion to issue a fresh notification to constitute the special bench since it would go against the accused leaders.Neither is it keen to challenge the order in the Supreme Court which will amount to validating the special bench set up against their own leaders. The strategy seems to be to go slow and push the idea that the cases againstBJP leaders were politically motivated.

The legal position is that following the high court order barring the specialCBI court from hearing the second fir, the case which was filed in the Rai Bareilly court will be revived. TheCBI had originally filed a chargesheet on the basis of fir no. 198 in the Lalitpur court which was later transferred to Rai Bareilly and then to the specialCBI court. Advani's lawyers now plan to move the Supreme Court to quash the fir. But their real worry is that even if the UP government refuses to issue a fresh notification for the constitution of a special bench, as suggested by the high court, the accused are not going to benefit at all. That's mainly because the chargesheet accusing Advani and others of criminal conspiracy filed on the basis of the first fir is still being heard in the special bench.

When the high court order halted the trial of fir 198 in the specialCBI bench on Feb 12, 2001, BJP leader J.P. Mathur and Uma Bharati were the first ones to erupt in joy. Mathur even described the order as an "acquittal" and said that "it shows that the names of the eight persons were added as an afterthought, making it clear that the government and officials had deliberately sought to get them convicted".VHP leader Giriraj Kishore interpreted the order as "a vindication of Vajpayee's stand that the construction of the Ram temple was an expression of national sentiment".

After the initial euphoria settled the party leadership realised the high court order did not, in fact, leave them in a better position. Politically, theBJP may try to keep the issue alive and gain as much mileage as possible by projecting the leaders as victims of a political conspiracy. Keeping an eye on the state assembly election due early next year, the party has more or less decided to take a rigid stand on the issue.BJP general secretary Jana Krishnamurthy has made it clear that the UP government isn't going to issue a fresh notification. "It's for the state government to decide whether to accept the verdict or rectify the flaw and issue a fresh notification or appeal against the order. But why should the present government oblige the past government's stand or the stand taken by the Babri Masjid Action Committee? If theBMAC wants to move the Supreme Court, let them do it."

However, the high court has revived the old issue and it's an opportunity for the secular camp to renew the attack. bsp leader Mayawati has fired the first salvo, indicating the issue may become somewhat problematic for the state government in the days to come. Says human rights activist Gautam Navlakha, "It's time for all political parties to build political pressure on the government to issue a fresh notification." But there are apprehensions as well. Says SC lawyer Rajiv Dhawan, "It'd be horrendous if the CM uses the technical flaw to liberate his party leaders. My fear is political tactics will replace moral responsibility. It's not binding on the UP government to issue a fresh notification. They can always delay it."

Meanwhile, theCBI has asked for a certified copy of the high court order. CBI sources say the 153-page order will be studied and the future strategy chalked out accordingly.Insiders say that as a watchdog agency, it would be imperative for theCBI to challenge the court order. "We just can't afford to ignore the developments and sit pretty," says an officer. Given the gravity of the charges against senior Sangh leaders, a whitewash job by any individual or agency is bound to generate a controversy. It would be relevant to recall the Sept 9, '97 order of Jagdish Prasad Srivastava, additional sessions judge, Ayodhya Episode: "Shri Lal Krishan Advani and others hatched a criminal conspiracy to demolish the disputed premises on different times at different places. Therefore, I find a prima facie case to charge Balasaheb Thackeray, L.K. Advani etc. under section 147/153-A/153B/ 295/295A/505 of theIPC read with section 120-B of IPC."

Just as the heat generated during the last session of Parliament over the issue of resignations of the accused ministers had begun to cool down, another storm is now looming over the political horizon. The ghosts of Ayodhya just refuse to be exorcised.

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