Thursday, April 27, 2017

INDIA: Breaking down the Supreme Court judgment in the Babri Masjid demolition case

26 April 2017 An Article by the Asian Human Rights Commission INDIA: Breaking down the Supreme Court judgment in the Babri Masjid demolition case On April 19, 2017, the Supreme Court of India(SC) passed an important judgment with respect to the fraught Babri Masjid demolition case. The matter in question pertained to FIR 198 of 1992 which was one of many FIRs filed on Dec 6, 1992 after the demolition of the Babri Masjid. FIR 198/92 was lodged against 8 persons, which included prominent leaders from the Bharatiya Janata Party(BJP namely LK Advani, Uma Bharti, Murli Manohar Joshi and Kalyan Singh. By exercising its powers, the Supreme Court under Art.142 of the Constitution of India, ordered the case, under FIR. 198/92, to be transferred to the Court of Additional Sessions Judge(Ayodhya Matters), at Lucknow. It directed the Court to frame an additional charge under S.120-B for criminal conspiracy. This case was pending earlier before the Court of the Special Judicial Magistrate in Rae Bareilly. The said court at Lucknow had before it Case no. 197 of 1992 which are the offences detailed against the Kar Sevaks who were allegedly involved in the actual demolition of the Masjid. The reason for this confusing situation is that Case. No 197/92 is being investigated by the Central Bureau of Investigation(CBI) while case no. 198/92 was being investigated earlier by the Crime Branch, Crime Investigation Department (CB CID) that is part of the State Police. As per S.11(1) of the Code of Criminal Procedure(CrPC), 1973 “1. Courts of Judicial Magistrates.- (1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify.” (emphasis supplied) On 9th Sep, 1993, principal notification was passed by the Uttar Pradesh(UP) State Government through the Governor, after consultation with the Allahabad HC. It established a Special Court at Lucknow for the disposal of all the cases under Crime No. 197/92. This was in keeping with the procedural requirements under S.11 (1) of the CrPC as shown above. On 8 Oct, 1993, an amendment was made to this notification by the Governor of UP, adding the cases under Crime no. 198/92. The Special court took cognizance of the offences and committed the case to the Sessions Court on Aug 27, 1994. To cut a long and complicated story (with many subsequent events) short, a criminal revision petition challenging the amendment was filed in the High Court of Allahabad. It considered the notification and the framing of charges against the accused persons (under S.120 B of the IPC read with other sections 147/153-A/153-B/295-A/505 of the IPC), as illegal. The petitioners claimed that the amendment was passed by the Governor without consulting the High Court, as per the provisions of S.11(1) of the CrPC. The HC on Feb 12, 2001, held that the amendment to the notification was illegal and therefore the order dated Sep 9, 1997 which framed charges against all the accused was also held to be illegal. However, it was stated that State Government can cure the infirmity by issuing a new notification. In essence, it held that the Special Court did not have jurisdiction to inquire into and commit the case to the Court of Sessions in FIR no. 198/92. On 16th June, 2001, the CBI requested the State government to rectify the defect but on 28th Sep 2002, it refused to do so. The CBI did not challenge this and instead filed a supplementary charge sheet against the 8 accused persons in FIR 198/92 at the court in Rae Bareilly but without adding S.120-B. Now, on 4th May, 2001, the Special Court dropped the proceedings against the 21 persons including the 8 accused. This was challenged and the HC upheld the earlier order of May 2001 vide judgment dated 22nd May 2010. It held that there were “two classes of accused – the leaders who were on the dais exhorting the Kar Sewaks….and the Kar Sewaks, themselves” and that the offence of criminal conspiracy was never made out against the 21 persons as the CBI did not add it in the supplementary charge sheet. This article will not go into the specifics of the offence of criminal conspiracy but suffice it to say that the multiple and confusing proceedings in this case, with long gaps in time as shown, have only led to continued obfuscation of the reasons for the long delay in proceeding against the eight accused. The SC in the latest judgment held the HC judgment to be erroneous and that “ is clear that the said accused could not possibly have been discharged, as they were already arrayed as accused insofar as the charge of criminal conspiracy was concerned..” The SC also held that the HC made an artificial division of the offences and offenders. The AHRC welcomes the SC’s statement that the CBI has caused a lot of confusion by not challenging the order and filing a supplementary charge sheet instead, and has “ ..completely derailed the joint trial envisaged, resulting in a fractured prosecution going on in two places simultaneously based on a joint charge sheet filed by the CBI itself…” The SC has passed this order in pursuit of “doing complete justice” as set out in Art.142. Complete justice will be done only if the lower courts follow the SC orders completely as detailed i.e. take up matters on a day-to day basis until the conclusion of the trial, no transfer of judges until the conclusion, no adjournment unless it is impossible to carry on the trial. The CBI must ensure that some prosecution witnesses are present and the Sessions Court must complete the trial and present its judgment within 2 years. The rule of law tenets, that no person is above the law. It is up to our lower judiciary to prove that this is indeed still possible in India, especially when some of its most prominent politicians are in the dock on very grave criminal charges. # # # The Asian Human Rights Commission (AHRC) works towards the radical rethinking and fundamental redesigning of justice institutions in order to protect and promote human rights in Asia. Established in 1984, the Hong Kong based organization is a Laureate of the Right Livelihood Award, 2014.

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