There seems to be a rumour floating in the smoky winds blowing through drawing rooms and TV studios in India that the Supreme Court’s finding that the Babri Masjid was illegally demolished on 6 December 1992 was a great vindication for the Muslims, and that the finding has all but ‘sealed the fate’ of the criminal cases that are pending in this regard. Nothing could be further from the truth. The civil dispute relating to title and the criminal cases arising out of the demolition stand on completely different footings, and one has no bearing on the other.
The Supreme Court, in its judgment, held that:
“On 6 December 1992, the structure of the mosque was brought down and the mosque was destroyed. The destruction of the mosque took place in breach of the order of status quo and an assurance given to this Court. The destruction of the mosque and the obliteration of the Islamic structure was an egregious violation of the rule of law.”
It has not been anybody’s case either in the criminal matter or in the title suits now decided by the Supreme Court that the demolition of the Babri Masjid was legal or justified. The Nirmohi Akhara had submitted in its pleadings before the court that “the main temple was demolished by some miscreants who had no religion, caste or creed”.
The suit filed by Ram Lalla Virajmaan, which was decreed by the Supreme Court, though it does not criticise the action of demolition, also does not go so far as to justify it or own up to it. It merely matter-of-factly records that exasperated by the delay in legal process, ‘saints’ had gathered at Ayodhya for the commencement of kar seva after the breakdown of talks for the amicable resolution of the dispute, and “in spite of all efforts to the contrary, the kar sevaks climbed up the three-domed structure and brought it down with their bare hands”.
The Supreme Court now, in saying that the demolition was a violation of the rule of law, has neither done anything novel nor path-breaking.
What SC Had Already Said in ‘Ismail Faruqui v. Union of India’
The Supreme Court in Ismail Faruqui v. Union of India in 1994 had already described the act of demolition as an ‘act of national shame’. The court went on to say that “What was demolished was not merely an ancient structure but the faith of the minorities in the sense of justice and fairplay of majority. It shook their faith in the rule of law and constitutional processes.” So, in fact, the court in Ismail Faruqui’s case had, if anything, used stronger language than the present judgment to denounce the illegal act of demolition.
Therefore, the Supreme Court now, in saying that the demolition was a violation of the rule of law, has neither done anything novel nor path-breaking.
Since it was not called upon to decide any issues related to demolition, denouncing the demolition just provided the court a much-needed excuse for a sermon on secularism before plunging down the path of least resistance.
‘Sunlight is the Best Disinfectant’
But perhaps, a few words deserve to be said about the criminal cases to satisfy the renewed curiosity in them that the Supreme Court's verdict in the title suit has generated. This public scrutiny is important as ‘sunlight is the best disinfectant’, as the Supreme Court has held in the case related to live streaming of court proceedings.
Insofar as vindication of any one position in this judgment is concerned, it needs to be pointed out that even in the criminal cases, the stand of the accused is not that they were justified in the dastardly act of demolition. It is denial of any role or responsibility in the incident. Therefore, here again, these cases are not, in any way, affected by these findings.
Why Criminal Cases Were Stuck in Legal Vortex
For years, the criminal cases were stuck in a legal vortex because of technical objections raised by the accused. The law requires that the state government must consult the High Court before constituting a special court to hear a case or a set of cases. This consultation was done for constituting a special court in Lucknow to hear the case arising out of the FIR lodged against unknown kar sevaks for the demolition of the Babri Masjid on 6 December 1992, and 46 other FIRs relating to the attacks on media persons who were covering the incident.
Insofar as vindication of any one position in this judgment is concerned, it needs to be pointed out that even in the criminal cases, the stand of the accused is not that they were justified in the dastardly act of demolition.
However, while transferring the case arising out of the FIR registered against 8 persons, namely, LK Advani, Murli Manohar Joshi, Ashok Singhal, Giriraj Kishore, Uma Bharti, Vishnu Hari Dalmia, Vinay Katiyar and Sadhvi Rithambara — for inciting the mob to this special court — this consultation with the High Court was omitted.
Two Parallel Trials: Setting the Stage for Chaos
On this technical ground, the proceedings before the special court were challenged by these accused. The High Court held that the proceedings before the special court against the said persons were illegal without this technical requirement being met, but the state government could cure this illegality by obtaining the consent of the High Court.
The Rajnath Singh government, which had by this time come to power in UP, chose to do nothing of the sort. This was in 2001.
So, this FIR was separated from the rest, and sent before a special court in Rae Bareilly. The consequence of this segregation was that two parallel trials would proceed in two separate cities, relating to the same set of facts. Each witness would be called and cross-examined twice in two separate proceedings on the same narration of facts. Two different courts hearing different aspects of the same offence could theoretically come to diametrically opposite conclusions about whether a particular thing happened in a particular way, leading to confusion. In a country where criminal trials can take decades, the stage was set for chaos and interminable delays.
‘Failure’ of CBI; Powers Under Art 142 of Constitution
The CBI, as the prosecuting agency, chose not to challenge this order of the High Court before the Supreme Court. This failure of the CBI may or may not have had anything to do with the fact that at this time, the BJP had also come to power at the Centre.
Thereafter, 13 other political leaders also accused of the same offence of inciting the mob — as the 8 persons mentioned above — demanded that the same yardstick be applied to them, and applying the principle of parity, proceedings against all of them were dropped by the trial court.
Against this second order, the CBI filed an appeal which travelled to the Supreme Court.
Finally, in 2017, hearing this appeal, the Supreme Court exercised its now famous powers under Article 142 of the Constitution to hold that this technical infirmity of absence of formal consultation would not stand in the way of the trial — and directed that the cases be clubbed together and heard by the special court in Lucknow. When it was argued by Mr KK Venugopal (who has since been appointed the Attorney General for India), appearing on behalf of the accused, that this was beyond the scope of powers of the Supreme Court under Article 142, Justice Nariman held that the powers under Article 142 can best be described by a maxim, “Let justice be done though the heavens fall”.
Court’s Directions on Trial & Completion Period
Castigating the CBI and the state government, the court held that, “In the present case, crimes which shake the secular fabric of the Constitution of India have allegedly been committed almost 25 years ago. The accused persons have not been brought to book largely because of the conduct of the CBI in not pursuing the prosecution of the aforesaid alleged offenders in a joint trial, and because of technical defects which were easily curable, but which were not cured by the State Government.” The court also noted that in the cases against the political leaders going on at Rae Bareilly, the CBI was taking repeated adjournments, and the judges hearing the case kept getting transferred.
The court directed that trial would go on day-to-day without adjournment, and must be completed within two years.
Finally, in 2017, hearing this appeal, the Supreme Court exercised its now famous powers under Article 142 of the Constitution to hold that this technical infirmity of absence of formal consultation would not stand in the way of the trial — and directed that the cases be clubbed together and heard by the special court in Lucknow.
The court also directed that the judge hearing the matter would not be transferred until the completion of trial. The period of two years granted by the Supreme Court ended on 19 April 2019. Thereafter, the learned judge hearing the cases sought an extension of six months to complete the trial, as the hearing was not yet concluded. At the end of the said period of six months, the judge asked for another extension of six months, also indicating that he was retiring. The court has granted another six months to complete the trial along with an extension of the term of the judge till the completion of trial. The decision has now to be pronounced by 19 April 2020.
A grand temple is now to be constructed at the site by the central government under orders of the Supreme Court, potentially using taxpayers’ money.
No Silver Lining in Sight?
It is now 27 years since a 464-year-old mosque and the faith of the minorities in the sense of justice and fairplay of the majority were simultaneously demolished one December morning. The Supreme Court has now, in its judgment of 9 November, held that on account of repeatedly trying to illegally obstruct Muslims from entering the mosque since 1857 (only to be repulsed by the police and civil administration) and praying to the mosque from beyond its walls, the majority has acquired possessory title to the Babri Masjid. The sins of illegally forcing their way into the mosque on the intervening night of 22-23 December 1949 and installing idols inside it, and of demolishing the mosque “with their bare hands” in 1992, have been recognised and washed away.
The court has granted another six months to complete the trial along with an extension of the term of the judge till the completion of trial.
A grand temple is now to be constructed at the site by the central government under orders of the Supreme Court, potentially using taxpayers’ money.
At the cost of repetition, none of this has any bearing on the criminal cases arising out of the illegal demolition. Hard-pressed though we are to spot the silver lining in the clouds after the verdict of 9 November, I’m afraid the immediate prospect of the perpetrators of the dastardly act of demolition being brought to justice in the criminal cases as a direct consequence of this verdict is not that lining. At least not yet.
(Nizam Pasha is a lawyer practicing in the Supreme Court who has appeared in both the civil and criminal cases related to the Babri Masjid before the Supreme Court. He can be reached on Twitter @MNizamPasha. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)