Let the judges judge

The Prime Minister's pronouncements on Ayodhya have been widely attacked for fanning communal flames and violating the NDA embargo. But wh...

The Prime Minister’s pronouncements on Ayodhya have been widely attacked for fanning communal flames and violating the NDA embargo. But what has gone unnoticed is that from a judicial point of view, Vajpayee gave a clean chit to the Babri trio in his cabinet at the worst possible time. It is only last month that the Lucknow bench of the Allahabad high court concluded the hearings of a case which will determine whether the accused in the demolition case should be tried at all or not. Stretching over three years, those proceedings were on criminal review petitions filed by 33 of the 49 accused chargesheeted by the CBI. Vajpayee came up with his they-are-not-guilty statement just when the Lucknow bench is in the process of writing its verdict in that ultra-sensitive case.

Given his much-vaunted track record in public life, Vajpayee ought to have known that he was committing a grave impropriety as his statement was bound to put pressure on the judges concerned. There is no attempt here to compound his impropriety by insinuating that the bench is likely to be influenced by Vajpayee’s pre-judgement. The point is, Vajpayee could well have left the judging to the judges without making the weight of their historic task heavier than it already is. He should have instead displayed the wisdom to limit himself to addressing a contradiction validly pointed out by the Opposition. How can he retain the Babri trio in his cabinet after he had himself recently forced the resignation of a junior minister, Harin Pathak, over a rioting case in similar circumstances? Vajpayee has the discretion to resolve this contradiction in whatever manner he deems fit so long as he does not usurp the role of the judiciary and exonerate his ministers in a pending case. Such self-restraint is the least that isexpected of a Prime Minister, all the more so of somebody perceived to have statesman-like qualities.

In the given case, Vajpayee can actually be said to have more than usurped the powers of the judiciary. This is because he said something which even the high court is not competent to say at this "preliminary" stage. Yes, the demolition case is at a preliminary stage even after a lapse of eight years. So, in the best case scenario for the Ayodhya accused, the most that the high court can do is discharge all of them on the ground that the evidence marshalled by the CBI is prima facie insufficient to put them on trial. The high court cannot acquit them. That is, it cannot hold them innocent of the charge of conspiring to demolish the Ayodhya monument. Acquittal is a decision that a court can take only after the commencement of the trial. In the Ayodhya case, the trial is yet to begin. It was when the trial was set to start in September 1997 that 33 of the 49 accused filed criminal revision petitions before the high court.

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That brings us to one little-known but significant aspect of the question facing Vajpayee. Legally, he has less reason to retain L.K. Advani and Murli Manohar Joshi than Uma Bharti. This is because only Bharti is among the 33 "revisionists", as they are called. There are three possible ways in which the high court can dispose of the revision petitions. One is, of course, it may dismiss all the petitions. In which case, there should be no further legal impediment to putting all the 49 accused on trial. The second possibility is it may hold that the complicity of certain "revisionists" in the criminal conspiracy alleged by the CBI has not been prima facie made out. If that happens, all such revisionists will escape the trial. Since Bharti is a revisionist, she alone stands to gain in such a scenario among the three chargesheeted ministers. The only circumstance in which even Advani and Joshi can escape trial is if the high court rules that the offence of criminal conspiracy is not constituted at all. This isbecause, minus the charge of criminal conspiracy, the entire case will collapse and all the 49 accused will get discharged.

Barring the last scenario, the special court constituted in Lucknow to deal with the Ayodhya case will finally be able to start the trial once the high court gives its verdict. It will, however, have to go through one more pre-trial process, namely, framing of the charges. That is another potential source of trouble for the trial court. The accused may challenge the right of the present special court judge to frame the charges on the basis of the prima facie findings given three years ago by his predecessor, J.P. Srivastava. Resourceful as they are, the accused in the Ayodhya demolition case have a track record of not sparing the slightest opportunity, legal or otherwise, to put off the prospect of trial. Vajpayee’s extra-legal intervention at the behest of his three chargesheeted ministers therefore seems to be the latest in that series of dubious moves. This is also the most ominous because the reverberations of Vajpayee’s move have the potential to go beyond the Ayodhya case.

Vajpayee ought to have known that his statement was bound to put pressure on the judges