December 8, 1992. Two days after the demolition of the Babri Masjid, a high-level team met at the the then prime minister P.V. Narasimha Rao's residence to formalise a damage-control exercise. S.B. Chavan, who then held the home portfolio, came up with the idea of setting up a one-man enquiry commission to deflect charges against the government that it was not acting against those responsible for the demolition.
That commission was to be neutral and efficient. The team also advised the PM to select someone who would fulfil five crucial criteria. First, he must neither be a Hindu nor a Muslim. Second, he must not be from any of the contesting castes—Brahmin, Jat or Yadav. Third, he must know Hindi and must not be from the south. Fourth, he must have a clean image. And five, he must be a sitting judge of a high court to lend the commission some kind of moral authority. The team found its man in Justice Manmohan Singh Liberhan, a Sikh and a sitting judge of the Punjab and Haryana High Court.
Back then, Justice Liberhan could not have imagined that his 'right man for the job' credentials would hamper his career prospects. Born in a village near Chandigarh in 1938, Liberhan was enrolled as an advocate in the Ambala Court in 1962. After practicing for 25 years in Ambala and Chandigarh, he was elevated as a judge to the Punjab and Haryana High Court in 1987. He was a low-profile man who was never in focus till 1992. "Judges must not aspire to hog the limelight. They cannot play to the gallery or pander to the political leadership. They must function strictly according to the written law. And to do this effectively, it is important that judges remain anonymous." This was a work philosophy the honourable judge had often espoused to his friends.
Liberhan became judge at a time when judicial activism was just taking root in the country. He too delivered many progressive judgements but they were different from those of other activist judges in that Liberhan was careful never to undermine the authority of the executive or of the legislature. "Liberhan has passed many critical strictures against erring individuals but always refrained from treating other institutions as inferior to the judiciary," says a senior advocate of the Chennai High Court.
But soon after he began work with the commission, Liberhan discovered that honest judges are never encouraged. The Narasimha Rao government had set up offices for the commission in Lucknow. Only there was no office and no staff. The government seemed in no hurry to get to the truth.
As a sitting judge in Chandigarh, Liberhan found it difficult to be in Lucknow on a regular basis. It took one year for the Rao government to realise that and the commission was shifted to Delhi. By then, Liberhan had fallen behind the three-month deadline fixed by the government. Throughout the Congress rule, the judge received little help from the Union government.
"The only thing Justice Liberhan was assured of was the periodic extension of the commission's tenure," says a close source. "The Union government and the UP state government did precious little to get the stay—granted by the Allahabad High Court which permitted the bjp leaders from abstaining from the commission's proceedings—vacated. It was also during this period that for the first time his career was affected because he was handling a politically sensitive case."
The government was reluctant to elevate him as chief justice of any high court since such a move would confer more credibility and status to the commission. "Though the commission and the regular judiciary are not directly linked, the fact that a sitting chief justice is heading it lends it more power and authority. Do you think the Allahabad High Court would have given a stay in favour of (L.K.) Advani and Kalyan Singh if Liberhan was chief justice?" asks a senior counsel. Between 1992 and 1997, Liberhan's career stagnated even as the commission's work dragged on.
It was only during the United Front regime that things began to look slightly better. With Mulayam Singh Yadav as the Union defence minister, the basic infrastructural needs of the commission were fully met. In July 1997, Liberhan was finally promoted as chief justice and posted to the Madras High Court.
The respite proved as short-lived as the UF government. The coming to power of the bjp-led front signalled the next phase of trouble for Liberhan. The Vajpayee-led government's strategy was similar to that of the Rao regime—retard the progress of the commission. This was also the time when the spotlight turned very firmly on the bjp's biggest and most troublesome ally, Jayalalitha.
At that point, the government was making every effort to save Jayalalitha, who had many graft cases against her pending at the Madras High Court. Several of these cases were as being heard by the First Bench of the Madras High Court, of which Liberhan was a part. Many matters, including writ petitions filed by Jayalalitha challenging the setting up of special courts to try cases of corruption against her and some members of her erstwhile ministry, were being heard in Chennai. The law minister at the Centre was an aiadmk nominee and there were apprehensions that some of these petitions would be turned down.
It was now that the Vajpayee government decided to transfer Liberhan to the Guwahati High Court. Thankfully, the entire bar in Chennai took up his cause and protested. N.G.R. Prasad, president of the Tamil Nadu State Committee of the All India Lawyers' Union, who led the protests, had then stated: "The proposed transfer undermines the authority of law and is against public interest." Prasad pointed out that several cases relating to the Minimum Wages Act, central sales tax, employees' state insurance and the Private Schools Act had also been heard by the First Bench over a period of time and judgements had been reserved. The First Bench, which is also the Green Bench that handles environment-related issues, had also heard several important cases. According to Prasad, if Justice Liberhan had been transferred, these cases would have to be heard again, an exercise that would take several months to be completed.
Though the bjp government permitted him to stay on till he delivered the judgement in the Jayalalitha case, he was soon shunted out of Chennai. "The important fact is that two of his juniors in the Chennai High Court, Justice D. Raju and Justice Shivraj Patil, were elevated to the Supreme Court while Liberhan was denied a place in the bench of the apex court," says a senior advocate of the Supreme Court.
Justice Liberhan retired from the Andhra Pradesh High Court about a month ago and has since been concentrating on his work with the commission. Close sources say he's keen to complete the task he began eight years ago. This has triggered a fresh bout of unease in bjp quarters. For those in the legal profession would vouch that it's not easy to bulldoze Liberhan. Nor can he be influenced. Says a former brother judge: "He has nerves of steel. He'll do his duty and do it without fear or favour. In some cases people may not have agreed with some of his observations but no one has ever questioned his integrity." The present government has done all it can to tire him out but Liberhan has not given up. And that can hardly be good news for the bjp.