Who demolished 'Babri' and rule of law?

It is really surprising that all the three estates, executive, legislature and judiciary, are struggling with inordinate delays and ever deferred decisions. All the three estates struggled with delayed actions in one case, that is Ayodhya and demolition of Babri structure. A The BJP which proclaimed its main agenda of building 'Bhavya Ram Mandir' could not do anything and its decision was politically delayed blaming coalition compulsions. Ram became a convenient tool for them to gather votes only during elections. But none knows whether Ram mantra will help them in coming polls with credibility being at the lowest ebb at least on this issue.

Not only this demolition but the very dispute about title, ownership and possession of the Ayodhya Ramlala's Mandir area perhaps goes into the history as a long-pending case in the world. The litigation which began during pre-Independence era continues and it is difficult to expect the end of this saga.A The incident happened 21 years back. We are still probing and fighting legal battles at the preliminary stage. This shows Indian criminal administration system in poor light to the whole of world, and brings shame to the second largest democracy where politicians virtually enjoy complete immunity for their crimes

The Babri structure demolition case appears to be absolutely hopeless since on facts it cannot be established and on procedural technics it cannot be pursued. Even if the courts convict any one or some of those lakhs of culprits, it will be highly irrelevant because of its delay.

One of the basic normative principles of justice is that the culprits should be punished when the facts of crime are fresh in people's memory. The tragedy of Ayodhya is that two or three generations have passed and the new generation might not even know that something happened in Ayodhya. Justice delayed is justice denied. The CBI had charge-sheeted Advani and 20 others under sections 153A (promoting enmity between classes), 153B (imputations, assertions prejudicial to national integration) and 505 (false statements, rumours, etc, circulated with the intent to cause mutiny or disturb public peace) of the IPC.

It had subsequently invoked charges under Section 120B (criminal conspiracy) of the IPC which was challenged by Advani and other leaders. A The executive is charged with delay and inaction even as the issue of Ayodhya was burning the 'secular' fabric of the country and exposing the deficient governance issues. The police and its top investigative wing, the CBI, is also not an exception when it comes to delay and Ayodhya.

The special CBI court directed dropping of the conspiracy charge against Advani, Kalyan Singh, Uma Bharti, Vinay Katiyar and Murli Manohar Joshi. The others against whom the charge was dropped included Satish Pradhan, C R Bansal, Ashok Singhal, Giriraj Kishore, Sadhvi Ritambhara, V H Dalmia, Mahant Avaidhynath, R V Vedanti, Param Hans Ram Chandra Das, Jagdish Muni Maharaj, B L Sharma, Nritya Gopal Das, Dharam Das, Satish Nagar and Moreshwar Save. Bal Thackeray's name was removed from the list of accused persons after his death. Death relieves from criminal prosecution. By the time the trial is completed, we do not know how many of accused will be alive.

Then the Allahabad High Court ordered that the charge of criminal conspiracy against L K Advani and other senior leaders be dropped. The only way left to the investigating agency was to go to the Supreme Court to get it reversed. A While upholding the special court's order, the High Court had said the CBI at no point of time, either during the trial at Rae Bareilly or in its revision petition, had ever stated that there was offence of criminal conspiracy against the leaders. That is a serious lapse.

The CBI committed 167 days of delay, which means half-a-year over and above permissible time. Then the CBI filed a petition seeking condoning of the 'delay'. That is pending before the apex court. A Mere filing of petition and praying for condoning of delay was not acceptable to the Supreme Court. It directed the CBI to file an affidavit through a senior law officer of the Central government after noting that the delay of 167 days was caused because of a law officer.

Then Neeraja Gotru, DIG in the CBI, filed an affidavit saying that the then Solicitor General had ceased to hold office and there was no officer in office of present SG who is conversant with the facts of the case. It is an administrative deficiency. A In its new affidavit, the CBI explained the consequences of not condoning the delay. It argued that if the delay in filing a special leave petition was not condoned, the accused would get away without facing trial for a serious offence. The delay "is not intentional and deliberate but bona fide," and if was not condoned, the purpose of filing of this SLP in the public interest would be frustrated.

According to them the reason was: the then Solicitor-General had to go through voluminous documents before approving the draft of the appeal and had to deal with other cases also, including the 2G spectrum allocation scam. Since the State is the appealing party, and the State needs to be very comprehensive and take everything into account before filing a petition, the delay is inevitable. A They also stated that everyone associated with the matter was cautious because of its sensitivity, complexity and politically complicated nature which requires the exercise of due diligence.

As a matter of criminal procedure, Advani and others have a right of hearing once the High Court confirmed the dropping of the criminal conspiracy charge. Thus the Supreme Court Bench of Justices H L Dattu and J S Khehar rightly said it would decide on condoning only after hearing the BJP leaders and others who have sought dismissal of the CBI plea. We do not know how much of time they require.

The delay in judiciary is equally long. On May 4, 2010, the Special Court gave the order which was challenged by the CBI in the Allahabad High Court which, on May 21, 2010, found no merit in the CBI's contention and had upheld a special court's decision. This is only about criminal conspiracy charge. Then what happened to the other main charges? The High Court had at that time allowed the CBI to proceed with other charges against Advani and others in a Rae Bareilly court, under which the case falls. We do not know how long the case might drag.

There are two sets of cases - one against Advani and others who were on the dais at Ram Katha Kunj in Ayodhya in December 1992 when the Babri Masjid was demolished, while the other case was against lakhs of unknown 'karsevaks' who were in and around the disputed structure. A Is this the way a democracy should be ruled? Perhaps, some years after we might come to an end of the case of Babri demolition either holding some or none responsible. But can we ever know who is the real culprit of the demolition of the 'rule of law'?

The writer is Professor and Coordinator of Center for Media Law & Public Policy, NALSAR University of Law, Hyderabad)