When you are accused of inciting others to commit an offence, does that not imply your own complicity in a premeditated crime? Especially when the ones allegedly instigated by you are themselves being tried for conspiring to commit the very same crime?

This is just the kind of anomaly that the Supreme Court fixed on April 19 when it ended a farce in which only karsevaks were being prosecuted in Lucknow for the conspiracy behind the demolition of the Babri Masjid in 1992.

The leaders of the Ayodhya movement will no longer be tried separately in Rae Bareli as they have been for over 15 years. The case against the leaders was that they had delivered inflammatory speeches and shouted provocative slogans from a makeshift platform near the mosque as part of the “unlawful assembly” present there on December 6, 1992.

Rule of law

The judgment authored by Justice Rohinton Nariman has done away with the false premise on which the instigators were “artificially divided” from those who had actually demolished the mosque. In that artificial distinction, the culpability of the Bharatiya Janata Party leaders – Lal Krishna Advani, Murli Manohar Joshi, Uma Bharti and other Ayodhya campaigners – was limited to being part of the unlawful assembly, while the karsevaks alone (the unknown foot soldiers mobilised by those leaders) were arraigned for plotting the demolition.

To undo this distinction, the Supreme Court overruled a 2010 judgment of the Allahabad High Court which, it said, was “clearly erroneous”. The 2010 High Court verdict had upheld the original mistake committed by the Lucknow trial court in 2001 in discharging all the leaders from the proceedings related to the conspiracy behind the demolition.

The two separate trials had come into being in 2001 due to “easily curable” technical defects, which Rajnath Singh (the then chief minister of Uttar Pradesh) and his successor Mayawati (in coalition with the BJP) refused to rectify. Exercising its residuary powers to correct those defects, the apex court transferred the Rae Bareli proceedings to the Lucknow court, which has been directed to frame the charge of conspiracy against the leaders as well. In a further display of activism, the Supreme Court ordered the Lucknow court to conduct the joint trial on an expeditious basis and complete it within two years.

These dramatic exertions to uphold the rule of law could not have come at a worse time for Advani, given the speculation over his candidature for the upcoming presidential election. After all, he has been arraigned for plotting what is widely perceived as the most far-reaching blow to India’s commitment to secularism.

Uma Bharati and Kalyan Singh. File pictures.

Similarly, Modi may find it untenable to retain Uma Bharti in his Cabinet and, despite his constitutional immunity, Kalyan Singh as Rajasthan governor.

Remarkable development

Whatever its immediate fallout for the leaders in question, the April 19 verdict has raised eyebrows in Hindutva circles for the role played by the Modi government in this turnaround in the criminal proceedings. Deviating from the pattern of changes apparent in other politically sensitive cases, the Modi government seems to have allowed the Central Bureau of Investigation, in the Ayodhya context, to carry on as before. As a result, the investigating agency stuck by its 2011 petition against the High Court verdict when the matter came up for hearing for the first time this year before the Supreme Court.

It was by no means a routine affair when additional solicitor general Neeraj Kaul, appearing for the CBI attacked the decision to drop the conspiracy charge against the leaders. Thus, on an issue of utmost importance to the BJP, the notoriously pliable agency persisted with a line that had been adopted by it during the previous United Progressive Alliance reign.

The vehemence with which the Supreme Court endorsed the agency’s stand is equally remarkable, given the judiciary’s own mixed record on Ayodhya. Take the Supreme Court’s failure to pursue the contempt notice it had issued to Kalyan Singh in the wake of the demolition of the Babri Masjid.

The demolition was a violation of the “symbolic karseva” envisaged by a bench headed by Justice MN Venkatachaliah. Though the medieval mosque had been brought down on a Sunday, Venkatachaliah held a special hearing of the bench the same evening at his home. Despite thundering that it was the gravest ever contempt against the Supreme Court, neither Venkatachaliah nor any of the other judges, following his retirement, took any action against Kalyan Singh for the demolition.

In October 1994, on the last day of his tenure as Chief Justice of India, Venkatachaliah did give Kalyan Singh a token sentence of one-day imprisonment, but that was only for a smaller contempt committed four months prior to the demolition. For the far more serious infringement of his undertaking to protect the mosque during the symbolic karseva, all that the Supreme Court said was:

“Though the proceedings for suo motu contempt against the then chief minister of the state of Uttar Pradesh and its officers in relation to the happening of 6-12-1992 were initiated, those are pending and shall be dealt with independently.”

As it turned out, those contempt proceedings were never dealt with, independently or otherwise. Thankfully, in its latest intervention in Ayodhya, the Supreme Court displayed no such inhibition in taking action against any of the leaders named in the CBI chargesheet.

In deference to the immunity enjoyed by Kalyan Singh “as long as he remains Governor of Rajasthan”, the judgment said, “The Court of Sessions will frame charges and move against him as soon as he ceases to be Governor.” Given its two-year deadline for the conclusion of the Ayodhya trial, this is as close as it could have come to passing strictures on Kalyan Singh or telling him to step down.

If the hopes for justice raised by the Supreme Court are not to be dashed, the Ayodhya saga will have to take an inconceivable turn. It’s hard to imagine the instigators, if not the karsevaks, being convicted on the watch of a party that is deeply implicated in it and a prime minister who had himself been involved in the movement that led to the demolition. But if that improbable scenario does become a reality, Modi can then claim to be more secular than even Nehru, at least in the context of Ayodhya. After all, for the secret installation of idols in the Babri Masjid in 1949, nobody was ever convicted on the basis of the FIR registered at the time. Given that the 1992 case is even more challenging, it remains to be seen whether the Indian criminal justice system will be able to muster the will to hand out convictions. In any event, there is little prospect of a closure to the Ayodhya issue unless the civil dispute over the site is also resolved.

Manoj Mitta is the author of The Fiction of Fact-Finding: Modi and Godhra and co-author of When a Tree Shook Delhi: The 1984 Carnage and its Aftermath.