Friday, August 19th, 2022 01:51:38

Resolution of Ayodhya knot through a new law?

Updated: May 4, 2017 10:14 am

The demolition of Babri structure in Ayodhya was described as “crimes which shook the secular fabric of the Constitution of India“ by  the Supreme Court Bench of Justice P.C. Ghosh and  Justice Rohinton F. Nariman.  The judges then put LK. Advani, Murli Manohar Joshi and Uma Bharati back into the dock to stand trial for their alleged crimes 25 years ago and restored the more serious charge of criminal conspiracy. The Bench was convinced that it must use Article 142 to do complete justice in the case and then proceeded to transfer the trial of BJP’s big three leaders from Rae Bareli to Lucknow court where scores of karsevaks are standing trial.

The ‘crimes which shook the secular fabric’ of our Constitution were committed 25 years ago. The dispute which led to the ‘committing of the crime’ was and continues to be an emotionally highly sensitive issue. Was it necessary to re-open the wounds that were healing with the passing of time?  True, that a criminal act does not have a time limit but jurisprudence and ethics do allow the courts the discretion to look beyond the compulsions of law, in the overall interest of society.

Moreover, the secular fibre of our Constitution is not that fragile, and this was proved in 1992 itself. There is no reason to panic now after 25 years. In fact, by reviving the issue now when other, delicate issues of three talaq, common civil code and removing the  Article 370 are already agitating people, the addition of one more emotive issue was not a very wise thing to do.

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Upendra Baxi, Professor of Law at University of Warwick and former vice-chancellor of Delhi University, has raised the question, ‘SC promises closure in Babri demolition case. But what of the perils of memory and age, the problem of delay? Article 142 is being used with abandon to self-arrogate the power to deliver judgments that have, allege legal luminaries, either no link with law or have become law by themselves, which is against the Constitution. It does not give the right to the courts to legislate.’

From the comments given above it seems that the limits of patience to accept the ever-growing outreach by Supreme Court has been reached. More and more eminent people have begun to question the orders that impinge on the legislative powers of Parliament. Creating arbitrary laws based on judicial pronouncements is the surest way to destroy respect for the law and the judiciary.

Modi doesn’t need ploys to get President of his choice

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Did he or did he not, is the question, the answer of which everyone wants to know. Is Narendra Modi, as quite a few are alleging, the mastermind to initiate the process that has led to the three BJP seniors, LK Advani , Murli Manohar Joshi and Uma Bharati in the dock again on serious criminal charges and conspiracy to raze to the ground the Babri structure in Ayodhya?

Whatever might the truth be but it’s a fact that the immediate fallout of the recent Supreme Court’s order for the retrial of LK Advani, Murli Manohar Joshi and Uma Bharti has been the arraignment of Narendra Modi by the likes of Lalu Prasad Yadav, who have pathological hatred for him.

They believe that the CBI was nudged by Modi to move the Supreme Court and take its permission to charge-sheet 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 quashed by the special court, whose decision was upheld by the Allahabad High Court.

They point out that Advani was emerging as a strong contender for becoming the next President in July, possibly a strong group in the RSS was pressing Modi as well. But they say Modi did not want Advani to be President. One does not know who is in the mind of Modi as the next President, but if Modi does not want Advani he has every justifiable reasons not to trust him. Modi could not have forgotten that when he came on the national stage, Advani resorted to all kinds of tricks and roped in the media and his followers in the party to defame him and force him to go back to Gujarat. He even made Nitish Kumar break the 18-year-long alliance with the BJP when Modi became Chairman of the Election Campaign Committee, which was precursor to him being made leader of the party.

Advani tried sort of blackmailing the RSS supremo by submitting his resignation from even the primary membership of the party.  But it was all to no avail. He sulks but remains a party MP.

Coming to the allegation that Modi has used the CBI to embroil Advani in a long-drawn criminal case so that he does not become President is laughable because it is based on wrong premise. The pendency of the case does not bar anyone from holding any public office. Until one is not convicted, one is not considered an offender. This is the law which even the apex court, expanding its powers and jurisdiction through Art 142, can do much about it.

So even if Modi knows that in case Advani is elected he would be in the Rashtrapati Bhavan when the General Election is held in 2019 and if the results give him the opportunity to use his discretion, one can be reasonably sure that the tilt will be away from Modi. Modi’s style of dealing with even worst of his critics or political opponents, we have seen in the last three years, is let them bark up the wrong tree, he goes on with implementing his plans and keeping directly in touch with people.

He is not crude in his dealings with opposition leaders even with those who have been spewing venom against him. He has not pressed, as far as we know, Enforcement Directorate or CBI to hurry and prosecute the opponents. The case against even the Gandhis is moving at its own pace.  So what Lalu has been alleging against Modi has no iota of truth. With his massive goodwill, trust and the unquestioned following Modi does not need ploys like getting cases against Advani to pre-empt his becoming President.

Modi can simply announce his choice, no BJP MP or MLA will dare go against his nominee. The RSS cannot afford to press Modi beyond a point. The RSS bigwigs very well know that it is Modi who wins elections and votes are not cast for BJP. And the RSS bosses need BJP rule to implement their plans. All this means that presently Modi has no need to worry about Advani or anyone else. In any case he does not need many votes from allies.

The allegations by the likes of Lalus are plaintive cries by desperate souls. The mystery of why the CBI kick-started such a sensitive issue remains to be resolved–one guess, as the case file was not closed, the CBI wanted a conclusion but had not anticipated the enthusiastic activism of the two-judge bench, who in their wisdom ignored earlier decisions and ordered a time-bound ‘finale’.

 Did Narasimha Rao let Babri Masjid be demolished?

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The Supreme Court judges have in their wisdom put back LK Advani, Murli Manohar Joshi, Uma Bharati back into the dock for allegedly conspiring and participating in the demolition of Babri structure 25 years ago in 1992. Following the line of argument that made the two-judge bench  re-arraign Advani, Joshi and Bharati, they would have charged P V Narasimha Rao, if he would have been alive, with being the chief collaborator.

According to a source–a former MP–who was involved, albeit from the fringes and did not want to be identified, related that when the Babri structure  controversy was getting murkier, Narasimha Rao, who was the then Prime Minister, called the meeting of the National Security Council, the members of which included Chandra Shekhar, Devi Lal and VP Singh.

The opposition leaders unanimously suggested that the Centre take over the 2.67 acres approximately, on which the disputed structure stood and then place the acquired area under the protection of the Army. Rao listened to the suggestion but did not commit anything. A few days later he called VP Singh for a one-to-one meeting. Rao asked Singh again for his solution, who suggested the same idea, which was made at the meeting of the National Security Council.

The source said that Rao was so surprised that he asked Singh why he was suggesting the same solution at one-to-one meeting, which was agreed at the National Security Council. Anyway Singh  left saying that he subscribed to the solution decided by the opposition. It is said that Narain Dutt Tewari and ML Fotedar too had conveyed to Rao that they were hearing reports that plans were ready to bring down the disputed structure.

Subsequently, nothing was done except that 50,000 men of Rapid Deployment Force (RDF) were stationed at a huge ground, which is in a way beginning of Faizabad city’s limits and about 10 kms from Ayodhya. The day the structure was being dismantled, pictures showed about half a dozen kar sevaks with axes on top of the dome and hitting at it.

What Rao was doing at that moment, a youngish minister, who unfortunately died at a time when his career was building up at the Centre alleged that he called Rao on Rax but he did not respond. So, he called Rao’s office and told his staff that he wanted to speak to the Prime Minister immediately. But he was told that Rao was unwell and he has taken some medicine and gone to sleep. They were told not to disturb him.

Obviously, he woke up, said the minister with heavy sarcasm after the misdeed was done. When asked did he suspect that Rao connived in the ‘misdeed ‘, the minister emphatically said ‘of  course’ but quickly added that he had nothing to prove Rao’s connivance.

The source who related the proceeding of the National Security Council also said that in September 1993, almost 10 months after the demolition of the disputed structure, Rao called him. ’He told me that he was meeting people and asking  them how our party can be strengthened. He asked me what I will like to be done. I told him that the two core supporters, Dalits and Muslims have left, the Dalits have been enticed away by Kanshi Ram and Muslims got alienated because of Babri demolition,’ said the source He then said that just for gauging his reaction he told Rao that the Babri  issue used to come up like a boil, irritatingly at regular intervals. It is good it is finished.

The source said Rao didn’t respond but he could discern a faint smile on his face. When he mentioned this to KS Sudarshan, the source alleged that the then RSS chief’s reply was rather enigmatic, ‘well it was all settled.’

It is difficult to decipher what he meant but I know what the then UP Chief Minister Kalyan Singh said when I met him on the Sunday before the demolition the next Sunday, December 6, 1992, and then what he said when I spoke to him after the structure was demolished.

I returned from Ayodhya late in the evening and was at the Hotel reception for checking out, as I had to catch the Lucknow Mail for Delhi at 10pm when a person from CM’s office came and said that CM sahib has requested that I meet him on way to the station.

He asked me what I thought was likely to happen, my answer was, no one can stop demolition. Almost two lakh kar sevaks, all charged up to re-claim and take over the site where Ram Lalla was born, and they were ready to die for the cause. In fact, one 28-year-old engineer from Rao’s village said he was not afraid of the RDF. If he died in Ayodhya while serving Ram, he would go straight to heaven.

But Kalyan Singh said the structure would not be demolished. He was absolutely sure. I called him after the demolition and asked him what happened, he said a Brahmin and a Bania betrayed him. He didn’t elaborate. Summing up, it seems that Rao, if not actively but passively, let the structure be brought down. Will the Supreme Court in its avatar of activism put Rao posthumously in the dock?

 This is a role that the framers never envisaged. Given that there is nobody to guard the guardians, it is a role that vests great power — without any accompanying responsibility — in the Court. And it is a role that runs contrary to the very spirit of our Constitution.’

Says Gautam Bhatia, a lawyer, ‘In 2017, the very dilution of rules and the existence of vast powers have become weapons in the hands of courts to cut down rights. More importantly, however, in all these cases, the courts’ censorial actions bear a tenuous connection — if any — to law.’

R Jagannathan, a columnist, seems to be more despaired than angry, when says: ‘The Supreme Court’s judgement  (19 April), that essentially makes LK Advani, Murli Manohar Joshi, Uma Bharti and several others co-conspirators in the demolition of the Babri Masjid in 1992, is a travesty. Article 142 is the villain in the Constitution that enables the Supreme Court to make the law instead of just interpreting it. Article 142 (1) says: The Supreme Court, in the exercise of its jurisdiction, may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.’

In other words, whenever the court decides that “complete justice” has not been done, it can issue its own orders, and these orders will have the same force as laws made by Parliament. This is the section that allows a bench to order liquor shops within 500 metres of all highways to be shut, to decide that diesel SUVs will not be registered in Delhi for a certain period, that a Special Investigation Team (SIT) will chase black money, et al. It is a catch-all clause under which the Supreme Court can insert itself into any issue.

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That the court did not exercise self-restraint in ordering a time-bound trial of Advani and others is obvious, since it has overturned a legal verdict of the Allahabad High Court in the same case. In May 20, 2010 judgment of the High Court, Advani, Joshi and others were absolved of the “conspiracy charge” in the Babri demolition case. Any appeal by the Central Bureau of Investigation (CBI) against this judgment had to be filed by August 29, 2010 to be legal, but it did not happen. It finally was filed on February 9, 2011, nearly six months after the deadline expired. The CBI appeal was, according to The Times of India,

“on the brink of dismissal” in 2013. Quite possibly, it is the change in the bench’s composition that made this verdict possible.

The Supreme Court has established a bad precedent by reopening a case that failed the test of law several times, and was further appealed only as an after-thought by the United Progressive Alliance government in 2011, long after the deadline for appeals had ended. If the court can do this in this politically loaded case, what is to stop this from happening in a hundred other politically-sensitive cases, depending on which the government is in power.

In fact, the case for amending Article 142 (1) has never been stronger. This Article enables the courts to make laws, thus allowing activists and non-governmental organisations to misuse the courts to get what they want done, and on which politicians are unwilling to oblige them.

The courts are thus being used to frame new laws that run contrary to constitutional provisions, which state that only those who have the mandate of the people can make laws. Unelected and self-selecting bodies like the higher judiciary can interpret laws, but not make them.

After the latest decision to re-open the case against Advani and others, while politically the situation is very tense, as the gangs of gau rakshaks, goondas masquerading as social workers, violent situation in the Valley and the maulvis on the warpath over the issue of three talaq are adding their own bit to create an explosive tenseness, it is high time to look at

Article 142 afresh and amend it. One wonders why the court has not yet agreed to a time-bound decision on the main title suit in the Ram Janmabhoomi case. Can the Supreme Court do something about the root-cause for crimes against the secular fabric of our Constitution?

By Vijay Dutt                

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