Senior BJP leaders Murli Manohar Joshi and L.K. Advani.
The court transfers the case from Rae Bareilly to Lucknow, insists on a time-bound trial
-APRIL 19, 2017
The Supreme Court on Wednesday used its extraordinary constitutional powers under Article 142 to revive the criminal conspiracy charges against senior BJP leaders, including L.K. Advani, Murli Manohar Joshi and Uma Bharti, in the dual Babri Masjid demolition cases.
A Bench of Justices P.C. Ghose and Rohinton F. Nariman transferred the Rae Bareilly case languishing in the magistrate court and clubbed it with the Lucknow case pending before a CBI Special Court
The Rae Bareilly case accuses Mr. Advani, Dr. Joshi and six other BJP and Sangh Parivar leaders of giving provocative speeches that promoted enmity and threatened national integration.
The Lucknow case is against “lakhs of unknown kar sevaks” and deals with the actual act of demolition and violence. With the clubbing of the cases and revival of the the conspiracy charges, the senior BJP leaders will be tried under the composite charge sheet filed by the CBI on October 5, 1993.
Justice Nariman, who wrote the judgment for the Bench, specifically called out the names of Mr. Advani and Dr. Joshi while pronouncing the judgment in open court to underline the fact that the criminal conspiracy charges had been revived against them.
With the clubbing of the cases, the Supreme Court has completely agreed with the CBI that both cases – the actual demolition case and the speeches allegedly made by these leaders – are pari materia or part of the same action.
The court, however, exempted Rajasthan Governor Kalyan Singh, who was Uttar Pradesh Chief Minister at the time of demolition, from facing trial as of now.
Justice Nariman held that Mr. Singh is protected from criminal prosecution by the constitutional immunity his Governor’s post allows him under Article 361.But the Sessions Judge will commence prosecution against him for criminal conspiracy the moment he steps down.
The court ordered day-to-day trial to be completed in two years. The trial judge will not be transferred till the case is over and there will be no adjournments given, it said. If an “impossible” situation arises, the trial court would record the reason for the adjournment, the court said.
The Supreme Court clarified that this would be no de novo or fresh trial, which would entail fresh framing of charges, but only involve the joining of criminal conspiracy into the existing case.
The court clarified that the witnesses who were already examined separately in both the cases can be re-called and re-examined. Combinedly, both cases have a total of over 900 witnesses who have yet to testify.
Justice Nariman said the court should be directly approached in case of any grievances against this order or in the future.
The court’s judgment removes the jinx triggered on February 12, 2001, when a single Judge of the Allahabad High Court found a technical default in the cases.
The Judge had pointed out that the State government had not sought the permission of the Allahabad High Court Chief Justice while first transferring the Rae Bareilly case to Lucknow in August 1993 for a joint probe by the CBI.
In September 1997, the CBI judge, perusing the composite chargesheet of the agency file in October 1993, had also found prima facie evidence against 13 persons, including Mr. Advani and Mr. Joshi, for criminal conspiracy.
The Single Judge had, however, in 2001 upheld the CBI chargesheet and agreed there was evidence of conspiracy. He had found the “technical default” in the transfer of the Rae Bareilly case to Lucknow in 1993 “curable” by the State government, who could have issued a fresh notification correcting the error.
But no State government ever did that.
A couple of months later on May 4, 2001, Mr. Advani and other politicians challenged the conspiracy charge. A lower court subsequently dropped the charge and the Rae Bareilly case eventually returned to the Rae Bareilly Magistrate. At one point, in a recent Supreme Court hearing, senior advocate Kapil Sibal informed the Supreme Court that there was no presiding trial judge and the case has been lying stagnant.
A decade after the conspiracy charge was dropped by a lower court, the CBI had appealed to the Allahabad HC for its revival. The agency failed, following which it had moved a second appeal in the Supreme Court in February 2011.
Six years after the appeal was filed in 2011, Justice Nariman had questioned the dropping of the conspiracy charge against the leaders.
On April 6, 2017, Justice Nariman had termed the 25-year pendency of both trials an “evasion of justice”.
Senior advocate K.K. Venugopal, appearing for Mr. Advani and Mr. Joshi, had objected to the court’s proposal to use its formidable powers under Article 142 to club both Babri cases. He submitted that a joint trial would now delay justice for his clients.