One is yet again reminded of the Hindi movie, No One Killed Jessica. Ordering the quick completion of the criminal trial in the demolition of Babri Masjid and curing the technical defect of “consultation” with the high court, invoking its extraordinary powers under Article 142, the Supreme Court had said in 2017 that “let justice be done though heavens fall”. It went on to observe that “in the present case, crimes which shake the secular fabric of the Constitution of India have allegedly been committed almost 25 years ago”. In the historic Babri judgment last year, the Supreme Court had held the demolition as an “egregious wrong”. On Wednesday, none of the 32 surviving accused out of 49 was found guilty of such a serious crime.
The accused were charged with various sections of the Indian Penal Code pertaining to incitement to violence (Sections 153A and 153B), conspiracy to commit a crime (Section 120B), and unlawful assembly (Section 149). The overarching import of these charges was that there was a joint agreement on the part of the accused to demolish the Babri Masjid on December 6, 1992. For criminal conspiracy, mere agreement is punishable and for unlawful assembly, mere presence is enough to make one liable. There can be no two opinions on whether L K Advani and others were members of an unlawful assembly.
The CBI was required to demonstrate that the accused had acted together in furtherance of a common intention and a common object. For an assembly to be treated as unlawful under the IPC, the court infers whether there was a “common object” that was guiding the actions of the crowd. This inference is drawn using information such as the use of tools or weapons (in this case, the use of demolition tools, shovel, ropes was a well-recorded fact) and the behaviour of the accused prior to, during and after the incident (it was recorded that some of the accused were distributing sweets after the demolition while others were encouraging the kar sevaks). Similarly, statements by Murli Manohar Joshi and Advani in the run-up to the demolition were key pieces of evidence.
The chargesheet had also recorded a meeting on December 5, 1992, at Vinay Katiyar’s house where Advani was also present and the decision to allegedly demolish the mosque was taken. Kalyan Singh is alleged to have told a witness “rok construction par lagi hai, destruction par nahi”. For a conspiracy to be proven, all one requires to prove is that there was an agreement between two or more persons to commit a crime. There is no need to separately prove that the accused committed an overt act in furtherance of it. Conspiracies are always proved by circumstantial evidence.
True, one has to have faith in the judicial system of the country, yet at times, courts themselves are on trial when the stakes are high, as was noted by the apex court. True, the principle that the accused must be presumed to be innocent is the golden thread which runs through the fabric of the criminal justice system. True, no rule of criminal law is more important than that which requires the prosecution to prove the accused’s guilt beyond a reasonable doubt. True, the benefit of even a little doubt accrues to the accused in a criminal trial. Yet, the CBI could not present credible evidence in the case, particularly on the charges of criminal conspiracy. The judgment is controversial as the court has acquitted all the accused and held the demolition as spontaneous, for which no one except unknown anti-social elements must have been responsible. The court did not accept the over 100 videotapes of the incident as the audio was not clear, but then most criminal trial convictions are made on the basis of oral and documentary evidence. As many as 351 witnesses had testified and more than 800 documents were produced. Yet, the CBI failed to convince the judge.
The Babri litigation has been unique and unprecedented both in civil suits as well as criminal trials. The civil suit was strange in the sense that the high court acted as the court of first instance and the Supreme Court acted as court of first and last appeal, differing status quo orders, addition of parties, demands of differential burden of proof, ASI excavation etc. Just like the civil dispute, the criminal case is also mired in procedural lapses, patent illegalities and political interference by different governments. In no other criminal case, were two FIRs filed, probably within 10 minutes, about the same incident with different offences — the second FIR did not mention the crime of conspiracy and the trial bifurcated to two courts, one at Rai Bareilly and another at Lucknow after the joint trial had originally started at Lucknow.
Admittedly, criminal law is an island of technicality in a sea of discretion and the accused got the benefit of its technicalities. The police have discretion in arrest and investigation, the government in giving sanctions of prosecution, the prosecution as to whether to prosecute and if so, for what crimes, the judge has discretion, discharge, conviction and sentence.
The acquittal of all the accused is a setback to the CBI’s reputation. The Supreme Court itself has called it a “caged parrot”. It is high time that it is liberated from political influence. India’s criminal justice system cannot improve if prosecution and investigation functions are not bifurcated. The Criminal Law Reforms Committee must make a strong recommendation on this.
This article first appeared in the print edition on October 1, 2020 under the title ‘Not justice’. Mustafa is an expert on constitutional law and Mohammad is a doctoral student at NALSAR University of Law, Hyderabad