Wednesday, July 29, 2015

Ajaz Ashraf - Remembering the Babri Masjid demolition case // Nandini Sundar - A Little Memory Can Go a Long Way

NB: Now that our criminal justice system has decided to execute Yakub Memon, maybe the hon'ble judges will apply their minds to the violence instigated by the 'Parivar' and allow the "law to take its course" with regard to crimes committed in December 1992. Is the 'Parivar' above the law? Here are some indications that this is indeed the case:
"When it becomes ‘political’, justice breeds hatred and despair among those it singles out for attack. Those whom it favours, on the other hand, develop a profound contempt for the very value of justice, they know that it can be purchased by the powerful." If the Government of India wishes to announce before the entire world that it punishes violence and terror selectively, that it allows communal and caste bias to influence the delivery of justice to Indian citizens, we should give up all claims to be a law-governed polityDS
In the furious debate on whether or not to hang Yakub Memon, it is pertinent to insert the question: What is the status of the trial of those accused of demolishing the Babri Masjid? The fate of Yakub and the destruction of the Babri Masjid are indeed linked through more than two decades of hatred and anger and injustice.

As is well known, the demolition of the Babri Masjid on December 6, 1992 in Ayodhya triggered a relentless wave of bloodletting countrywide. Mumbai was particularly affected – it witnessed two rounds of grisly rioting, in December 1992 and January 1993, which ultimately culminated in the serial bomb blasts in the city two months later. The courts declared Yakub guilty of playing a role in engineering these blasts, popularly perceived as retribution against the riots following the demolition in Ayodhya.

This is the reason why analysts have now been prompted to compare the Indian state’s steely resolve to pursue the perpetrators of terror attacks to its lackadaisical attitude in bringing to book those who stoke communal conflagrations. Thus, for instance, it has taken 22 long years to bring a closure to the 1993 Mumbai bombing. In comparison, the wait for justice in the demolition of the Babri Masjid is likely to be inordinately long.

Indeed, the Babri Masjid demolition cases continue to languish at the trial stage, dogged by procedural problems, not the least because of what seems to be the changing and confusing stance of the CBI. But even the CBI’s changing stance pales in comparison to the role Home Minister Rajnath Singh seems to have played in altering the course of the Babri Masjid demolition cases.

As chief minister of Uttar Pradesh, between October 28, 2000, and March 8, 2002, his government did not remove a defect in a state government notification, decisively impacting the demolition cases. It is because of this defective notification that BJP leader LK Advani still doesn’t face legal proceedings for criminal conspiracy under Section 120 (B) of the Indian Penal Code. As of now, Advani is being merely tried for delivering provocative speeches, the punishment for which is decidedly less severe in comparison to what the conspiracy charge would invite.

The role of Singh is alluded to in a plea that Haji Mahboob Ahmad, a resident of Ayodhya whose house was burnt following the demolition of the Babri Masjid, filed in March this year in the Supreme Court, against the Allahabad High judgement in a case arising from the defective notification. Argued by former Union Minister Kapil Sibal and senior Supreme Court advocate MR Shamshad, the plea states that a senior minister (Singh) of the Modi government has been charged for “not curing the defect in the notification” which has prolonged the demolition cases, besides changing their tack.

How did this happen?: Following the demolition, there were two principal First Information Reports filed – Crime No. 197/92 and Crime No. 198/92 – in addition to 47 others. In Crime No. 197, the accused were “unknown persons”, essentially the thousands of those who razed the Babri Mosque to the ground in Ayodhya on December 6, 1992.  In Crime No. 198, there were eight accused, including Advani and Uma Bharati, now a minister in the Modi government. The charge against them pertained to making provocative speeches leading to enmity between communities.

Two special courts were established to try all the accused – the one in Lucknow was to handle Crime No. 197 and 46 other FIRs. A special court in Lalitpur was to try the eight accused in Crime No. 198.  Subsequently, the special court of Lalitpur was transferred to Rae Bareli, where it still exists. However, on October 5, 1993, the CBI filed a combined chargesheet in the Lucknow special court against the accused in all 49 cases. It named 49 persons including the eight accused in Crime No. 198. The CBI argued that the combined chargesheet had to be filed as all the cases were part of the same “transaction” which led to the demolition of the Babri Masjid.

Consequently, on Oct 8, 1993, the Uttar Pradesh government issued a notification transferring Crime No. 198 from Rae Bareli to the special court in Lucknow. It was this notification which was to put the skids under the demolition cases several years later.

The notification: It began when the special judge in Lucknow passed an order on September 9, 1997, saying that there was a prima facie case against all the 49 accused and that charges of criminal conspiracy and other offences should be framed against them under Section 120 (B) of the IPC. The judge, too, said that Crime No. 197 and Crime No. 198 were part of the same transaction that led to the demolition of the Babri Masjid, thereby warranting a “joint trial” and were indeed “triable” by him.

This order was challenged through four revision petitions filed by 33 of the 49 accused in the Allahabad High Court. On Feb 12, 2001, the High Court held that the notification of Oct 8, 1993 transferring Crime No 198 from Rae Bareli to Lucknow was defective. This was because the government had issued the notification without the concurrence of the High Court, which is mandatory. But the High Court kept the door ajar for trying the eight accused for criminal conspiracy in Lucknow, as it said that the defect in the notification was “curable.” This meant the government had to merely re-issue the notification after seeking the permission of the High Court, considered a mere formality.

Rajnath Singh was the chief minister of UP then. His government didn’t act upon the High Court’s suggestion. Three months later, the Singh government’s inaction became the ground for the accused to apply to the special court for dropping the proceedings against them. Not only did the special court drop the proceedings against the eight, including Advani, but also another 13. In other words, let alone being tried for criminal conspiracy, Advani was no longer on trial in Lucknow for even making provocative speeches. The National Democratic Alliance government was in power at the Centre then and Advani was its Home Minister.

Defects uncured: The special court’s order prompted the redoubtable Teesta Setalvad, her father Atul Setalvad, her husband Javed Anand and former editor Kuldip Nayar, among others, to petition the High Court through their Advocate Zafaryab Jilani, convener of the Babri Masjid Action Committee. Their plea was to have the proceedings initiated against Advani and others.

Getting no effective relief from the High Court, the Supreme Court was then moved in what is now called the Aslam Bhure case. In its reply to the Supreme Court, the UP government, of which Mayawati was then the chief minister, said the Rae Bareli special court still existed and Advani and seven others be tried there. Thus, Crime No. 198 was tossed back to Rae Bareli.

However, there were still surprises in store. On Sept 19, 2003, the judge of the special court in Rae Bareli discharged LK Advani from the case, but framed charges against the remaining seven accused. All these seven petitioned the Lucknow Bench of the Allahabad High Court, as did Haji Mahboob Ahmad against the discharge of Advani. The petitions of the seven accused were dismissed, but that of Ahmad was accepted.

In its order, the High Court observed that though there was no direct evidence testifying to political interference, “but considering the facts and circumstances of the case, the role of CBI cannot be said to have been unquestionable.” The Court, in fact, asked the CBI to introspect on its role in the cases and think whether it had lived up to its reputation as a premier investigating agency in which people have reposed faith.

The CBI consequently filed in 2003 what is called supplementary chargesheet in the special court in Rae Bareli. The NDA was still in power – the supplementary chargesheet did not mention the charge of criminal conspiracy. So when the special court framed charges against Advani and seven others, these, obviously, did not include criminal conspiracy under Section 120 (B) of the IPC. Advani was charged under Section 153 (A), 153 (B), and 505, all of which lack the sharp edge of Section 120 (B). The three sections pertain to promoting enmity among classes, making assertions inimical to national integration, and inciting people to commit offence.

But the lingering hope of the charge of criminal conspiracy being restored against Advani and 20 others anytime soon was dashed on May 20, 2010. On that day, the High Court upheld the special court’s 2001 decision to drop proceedings against them. In other words, these 21 gained from the Rajnath Singh government’s failure to “cure” the defective notification and reissue it.

From BJP to Congress: But even the Congress-led United Progressive Alliance government didn’t seem particularly enthused about pursuing the demolition cases. Accused of cynically misusing the CBI to torment politicians such as Mulayam Singh Yadav and Mayawati, in the hope they would be scared into voting for the UPA bills in Parliament, it was thought an appeal against the 2010 High Court judgement would be filed quickly.

However, the CBI took nine months to file its appeal in the Supreme Court, as against the time limit of three months. The failure to file an appeal in three months has provided Advani and others a legal loophole to exploit. Contrast its laidback approach to the fervour it is now displaying against Teesta Setalvad and her husband, Javed Anand, for their alleged violation of the FCRA.

No doubt, Haji Mahboob Ahmad was permitted by the Supreme Court in March this year to file a petition for becoming a party to the appeal against the May 10, 2010 High Court judgement, but the maintainability of his and the CBI’s appeal will have to be settled before it can be taken up and argued. So add a few months, if not years, before it can even be determined whether Advani and the others can be tried for criminal conspiracy.

Meanwhile, the trials in the demolition cases continue to progress tardily. The Lucknow special court has completed examining the 152nd witness of the prosecution; the court in Rae Bareli has gone through 42 witnesses thus far.

It is quite understandable why Advani and other leaders from the Sangh don’t wish to be tried for criminal conspiracy. If the conspiracy charge were to be ever restored and upheld, it would give a lie to the Sangh’s claim that the demolition of the Babri Masjid was a consequence of spontaneous outburst of the thousands of its activists who had assembled in Ayodhya on December 6. Thus, without it, the Sangh and its senior leaders would be legally absolved of having conspired to demolish the Babri Masjid.

Contrast the course of the Babri Masjid demolition cases with the Indian state’s treatment of Yakub Memon. Some analysts, including those writing for, have wondered what kind of message the hanging of Yakub would send to Muslims.

One reason for a garbled message being sent to Muslims is the twists deliberately imparted to the Babri Masjid demolition cases, courtesy Rajnath Singh's BJP government in UP and the CBI under various dispensations. If Yakub’s claim that he was oblivious of the plan to bomb Mumbai sounds incredible, given that his brother Tiger played a central role in it and bombs were assembled at their residence, then it is as hard to believe that the Sangh and its leaders didn’t conspire to demolish the Babri Masjid.

The novelist Milan Kundera wrote, “The struggle for power is the struggle of memory against forgetting.” To make people forget, the template of popular memory requires reworking. The circumstances are propitious – the BJP is in power again and Rajnath Singh is the Home Minister. LK Advani has metamorphosed into a voice of moderation, even an elderly statesman. As for those whose relatives and friends died in the countrywide riots following the demolition of the Babri Masjid, the Supreme Court is their last port of call for justice, for even keeping intact their memory of December 6, 1992, for not having it declared as a figment of their imagination.

The message is clear: The BJP is against terrorists only if those terrorists are Muslim

Nandini Sundar - A Little Memory Can Go a Long Way
It is the silences that attend media coverage of Yakub Memon’s impending execution and not the Shiv Sena’s aggressive calls for his hanging that hold a mirror to Indian democracy most clearly. Leading national dailies carry photos of mangled bomb blast sites and interview those affected, as if to justify the imposition of the death penalty; none ask why other victims must continue to suffer silently the indignity of watching their attackers go scot-free. The 1993 blasts were a heinous act of terror that came at the end of an equally heinous set of communal killings that tore Bombay apart in December 1992 and January 2003 but you would be hard pressed to find any mention of this context in any reporting of Yakub Memon. Memon is indeed guilty as charged and nothing can justify his involvement in the bombings. 

For the benefit of Indians under the age of 30-35, however, the media ought to have provided the background to the 1993 bombings: the destruction of the Babri Masjid on December 6, 1992, the celebration rallies held by the BJP and Shiv Sena in Bombay, the complicity of the Bombay police and the Congress-led Sudhakarrao Naik government in the targeted killing of Muslims, the subsequent appointment of the Srikrishna Commission, and its indictment of the Hindutva forces and police involved in the 1992-3 Bombay riots. This background is essential not in order to lessen the guilt of Memon but to remind us of the other crimes that are crying out for punishment.

That the government itself felt there was a connection between the mob terror and bomb terror of that period is shown by the extended terms of reference given to the Srikrishna Commission: to explore whether the 12 March 1993 blasts had anything to do with the 1992-93 riots. The Srikrishna Commission concluded: “One common link between the riots of December 1992 and January 1993 and bomb blasts of 12 March 1993 appear to be that the former appear to have been a causative factor for the latter. There does appear to be a cause and effect relationship between the two riots and the serial bomb blasts. …

“Tiger Memon, the key figure in the serial bomb blasts case and his family had suffered extensively during the riots and therefore can be said to have had deep rooted motive for revenge. It would appear that one of his trusted accomplices, Javed Dawood Tailor alias Javed Chikna, had also suffered a bullet injury during the riots and therefore he also had a motive for revenge. Apart from these two specific cases, there was a large amorphous body of angry frustrated and desperate Muslims keen to seek revenge for the perceived injustice done to and atrocities perpetrated on them or to other members of their community and it is this sense of revenge which spawned the conspiracy of the serial blasts. This body of angry frustrated and desperate Muslims provided the material upon which the anti-national and criminal elements succeeded in building up their conspiracy for the serial bomb blasts.” (emphasis added)

The Bombay bombings are a cruel reminder of what can happen when state institutions fail to protect citizens from violence (or worse collude in the violence) and then deny them justice as well. Till justice is even-handed, coming down as heavily on the perpetrators of crimes against minorities, adivasis and dalits, as it does on individuals from these communities when they commit crimes, it will always be justice denied.

When Teesta Setalvad is harassed and persecuted for taking up the cases of the victims of the Gujarat pogrom of 2002 while those who committed the crimes are out on bail, what message are we sending? When the National Investigation Agency fails to seriously prosecute cases of terrorism involving Hindutva extremists, when files involving Hindutva terrorists conveniently disappear from a Jammu police station, will the cause of ‘justice’ really be served by hanging Yakub Memon but not even ensuring a day’s prison for others?

If the Indian state cannot be trusted to deliver justice, B. Raman’s revelations – and the CBI’s admission that Yakub was ‘induced’ to return to India – tell us it cannot also be trusted to keep its word. The interlocutors who secured IAS officer Alex Paul Menon’s release from the Maoists realised this when no ordinary adivasi was released in exchange despite the government’s promises; now any insurgent who wants to surrender or negotiate will think a hundred times before trusting the Indian government. Yakub Memon’s hanging will not help India find closure. Terror cannot be fought by the state selectively honouring its commitments, least of all its obligation to provide justice regardless of who a victim is and who the perpetrators are.

"The masterminds of the 26/11 attacks are treated like heroes in Pakistan. We are not there yet, but if hidden hands nudge the judicial system to free murderers of the saffron variety, we will be soon"
Terrifying implications of the Staines judgement

More on justice in India, the death penalty, etc.

NB: I am adding a citation from an important book on Nazism written in the 1930's, Behemoth, The Structure and Practice of National SocialismNew York, republished 1963, p 27. The author was Franz Neumann. A pdf file may be read here: < 
(The counter revolution) ‘…tried many forms and devices, but soon learned that it could come to power only with the help of the state machine and never against it… the Kapp Putsch of 1920 and the Hitler Pustch of 1923 had proved this.. In the centre of the counter revolution stood the judiciary. Unlike administrative acts, which rest on considerations of convenience and expediency, judicial decisions rest on law, that is on right and wrong, and they always enjoy the limelight of publicity. Law is perhaps the most pernicious of all weapons in political struggles, precisely because of the halo that surrounds the concepts of right and justice… ‘Right’, Hocking has said, ‘is psychologically a claim whose infringement is met with a resentment deeper than the injury would satisfy, a resentment that may amount to passion for which men will risk life and property as they would never do for an expediency’. When it becomes ‘political’, justice breeds hatred and despair among those it singles out for attack. Those whom it favours, on the other hand, develop a profound contempt for the very value of justice, they know that it can be purchased by the powerful. As a device for strengthening one political group at the expense of others, for eliminating enemies and assisting political allies, law then threatens the fundamental convictions upon which the tradition of our civilization rests…