Babri Masjid Demolition Case: Court Ignored Findings of Liberhan Commission
It is a well-worn saying that courts are 'courts of law
and not justice'. This was once again brought home by the decision of the
special CBI court in the Babri Masjid demolition case in which all accused were
Court hearings had continued over the last three years. Tons of evidence
adduced by the Central Bureau of Investigation (CBI) was found unconvincing by
the court. This judgment raises several questions.
At the outset, the Supreme Court needs to be complimented for putting this case
on a priority roaster and laying down that the case must be heard on a day to
day basis. The judge was even given extension in service to complete the task.
But the outcome has come as a big surprise and huge disappointment.
One wonders whether the report of the Liberhan Commission was placed before the
court. The commission consisted of a former chief justice of a high court. It
faced innumerable difficulties in its work due to the unco-operative attitude,
not only of the UP government but also the central UPA government, which had
set up the commission.
It made no difference which political party was in power. Two non-BJP chief
ministers-Mulayam Singh Yadav and Mayawati--were in power in UP for nearly 12.5
years, before the Liberhan Commission submitted its report in 2009. Both of
them professed to be staunchly secular and anti-BJP. One wonders why they did
not support the Liberhan Commission in finding the truth and identifying the
forces behind the demolition of Babri.
The same holds true with respect to the central government wherein Deve Gowda
of the Janata Dal was Prime Minister for 324 days, followed by I.K. Gujral,
also of the Janata Dal, for 322 days. Manmohan Singh was the Prime Minister of
the UPA government from May 2004 till the submission of the report by the
Commission in 2009.
In utter frustration, the commission has stated: I cannot restrain
myself from observing that attempts were made to scuttle the commission.
The stays granted by the high courts of Delhi and Allahabad, often continued
for ever, and enabled the witnesses to avoid appearing before the commission.
One of them was Kalyan Singh who was the chief minister and had orchestrated
the demolition of the Masjid by taking over the administration fully in his
The commission has stated: "Kalyan Singh, a key figure, did not appear
initially for a number of years and at every step got stay orders from courts.
It is only after a decade [that] he issued a press statement about his
knowledge about conspiracy for demolition."
The commission has further stated: "Even when the witnesses were
examined on the premises (sic) of their press statements issued by them, they
backtracked from the statement issued to the press…The leading instances are
Mulayam Singh, Kalyan Singh and many others who stated in press about the
knowledge of the conspiracy for the demolition but on oath before the
commission denied any such knowledge."
Bal Thackeray, the then Shiv Sena Chief, had publicly and proudly announced
that Shiv Sena was a part of the conspiracy to demolish the Babri mosque.
The Liberhan commission has come to a considered conclusion that the structure
could not have been demolished without careful preparation. The commission has
given the list of political leaders and officers who, according to its
assessment, were responsible for the destruction of the structure. Many of the
accused before the CBI special court were in the list given by the commission
in its report.
I am aware that though this was a judicial commission of enquiry, its findings
are not binding on anyone and are just advisory. But, based as they are on
evidence adduced before the commission, deserved to be taken note of.
While discarding the evidence produced before it, the CBI court has given
reasons why it could not be accepted, namely, non-certification of audio
cassettes by the forensic laboratories, non-production of negatives of photos
etc. The legal team of the CBI should have taken care to fulfil these
requirements before producing the evidence before the court.
This case which has a long history of 28 years and has seen the stand of the
CBI changing, depending on which government, whether the NDA or the UPA, was in
power at the centre. Looking to the CBI's record ever since its inception, this
is not surprising. Even the Supreme Court has commented on it time and again by
calling it a 'caged parrot' and other epithets.
The Havala case was only one of the scores of cases in which the CBI came for
chastisement. The question of enacting a separate law for the CBI has been pending
for the last 50 years but due to the opposition of the states, it has made no
headway. And considering the trust deficit in the centre-state relations, it is
unlikely to be passed in the foreseeable future.
My repeated suggestions to discuss this subject fully in the Inter State
Council and to provide in the new enactment for a governing board for the CBI
comprising central ministers and a few chief ministers, by rotation, are the
only way in which independence and autonomy of the CBI can be ensured.
But, in cases like the Babri Masjid demolition, the CBI comes so handy that the
central government is unlikely to take any initiative to enact a separate law
for the CBI. This is therefore a cry in the wilderness, for ever.
The CBI special court seems to believe that the infiltrators from Pakistan were
responsible for the demolition of Babri. As far as I am aware, there was no
evidence with the central agencies to show the involvement of Pakistan. But, it
is imperative that the government makes an authoritative statement on the
The crux of the question is whether the strong, solid structure of the Babri
Masjid could have been raised to the ground in just 5-6 hours by karsevaks by
spontaneous, on-the spur- of-the-moment action, without any preparations. The
distinction between 'preparation' and 'conspiracy' is very thin.
For making preparation to demolish a structure too, people have to come
together, not necessarily in 'one room' as the CBI court seems to believe.
Consultations can even be on phone or by other modes of communication.
The fact that the Ram Lalla idols were removed by vigilant karsevaks before the
main dome of the mosque was brought down and were put back at the original
place at about 7 o'clock in the evening is very telling.
The Supreme Court itself had noted that the demolition of Babri was illegal.
Whatever the merits of the Supreme Court decision in the land dispute by which
the possession of the whole site was given to Hindus, one had hoped that at
least in the criminal case of palpably illegal demolition of the structure,
those responsible would be brought to book and the rule of law would be
established but even this hope has been belied.
The only way in which the wrong can be rectified is by filing an appeal in the
high court of Allahabad, and later if necessary, even in the Supreme Court.
Mention must be made of the disturbing thought which has been troubling me.
When Indira Gandhi was bent on making major changes in the Constitution during
the Emergency in 1975-77, the Supreme Court had drawn a red line and declared
that Parliament was not competent to amend the Constitution's basic structure.
The court had not defined the term in its judgment but has, in its subsequent
judgments, held that the basic structure includes India's federal and
democratic governance, rule of law, independence of the judiciary, division of
powers, secularism and so on.
But, happenings in the last few years have shown that amendment of the
Constitution is not necessary to destroy the basic structure. Concerted actions
achieve the same purpose. As a result, sadly, even with the pertinent
provisions of the basic structure remaining in tact, India is no longer what
the Constitution had envisaged.
Madhav Godbole is a former Union Home Secretary and Secretary, Justice