THE STATES

Demolishers and a dilemma

The recent Supreme Court directive to the Uttar Pradesh government to make its stand clear on the prosecution of some of the key accused in the Babri Masjid demolition case has put the BSP-BJP coalition in a tricky position.

PURNIMA S. TRIPATHI

THE Bahujan Samaj Party-Bharatiya Janata Party coalition government in Uttar Pradesh faces the toughest challenge yet to its survival over the question of issuing of notification against top BJP, Vishwa Hindu Parishad (VHP) and Shiv Sena leaders in the Babri Masjid demolition case. The accused, including Deputy Prime Minister L.K. Advani and Union Ministers Murli Manohar Joshi and Uma Bharati, would face prosecution for their role in the demolition of the Masjid in Ayodhya on December 6, 1992 if the notification was issued.

On February 12, 2001, the Lucknow Bench of the Allahabad High Court had quashed the trial of 21 of the accused, including Advani, Joshi and Uma Bharati, on the grounds that the notification for their trial was defective and improper since it was issued by the State government without the mandatory prior permission of the court. However, the court described the defect a technical one and said it was "curable".

RANJEET KUMAR
Chief Minister Mayawati.

Despite pressure from the Opposition parties, the Rajnath Singh-led BJP government in Uttar Pradesh had refused to correct the technical flaw and thus allowed the special CBI court to drop the charges against all of them. This was despite the fact that a designated court had found in 1997 sufficient prima facie evidence against all the accused, which facilitated the framing of charges against them by the CBI. In May 2001, the special CBI court had dropped charges against the 21 accused persons on the basis of the High Court's observation and said that they could be prosecuted only after the Uttar Pradesh government issued a fresh notification (Frontline, June 8, 2001). Meanwhile, prosecution against 26 others in the case, mainly bureaucrats and lower level police officials, proceeded.

The Supreme Court order to the U.P. government to file its reply as to whether it would issue a fresh notification in the case came on July 29 after a few social activists, including senior journalist Kuldip Nayar, challenged the February 12 court order that facilitated the dropping of charges against the 21 accused persons. The petitioners said that the accused should not be allowed to go scot-free on a 'trifle technical ground' and requested the apex court to direct the State government to make its stance clear.

However, the Mayawati government, which succeeded the Rajnath Singh government, appears to be in a dilemma and sought eight weeks' time to file its reply. If it tells the court that it will issue a fresh notification, that would mean initiating fresh prosecution against senior BJP, VHP and Shiv Sena leaders. This, in turn, would force the BJP to withdraw its support to the government. On the other hand, if Mayawati tries to wriggle out of the situation by beating around the bush, as she has been doing so far, it could alienate her Muslim voters and endanger her long-term political strategy. Syed Shahabuddin, senior All India Muslim Personal Law Board member, said: "This is her last chance with the Muslim voters. They gave her their support in the recent Assembly elections despite her previous two alliances with the BJP, because she had proved her secular credentials on these occasions. She did not make compromises on the temple issue. But if she allows these people to go scot-free, as Rajnath Singh did, Muslims will never forgive her." He said that if the court asked her to go ahead and issue a fresh notification, "then she has no option but to obey".

On May 3, as she took the oath of office as Chief Minister, Mayawati had declared that she would seek legal opinion in the matter before taking a decision whether a fresh notification should be issued. However, even after three months in office, she is yet to take a decision. Senior State government officials close to Mayawati said that the matter had been referred to the Advocate-General and that his opinion was yet to be received. "There is still time and she would certainly give a reply by the designated date," said one of her advisers. But the bureaucrats added that she did not appear to be in a mood to sacrifice her government. One officer said: "She could take the position that there was no need to issue a fresh notification since the original CBI charge-sheet contains the names of all accused, including those whose names had been dropped following the February 12 order. Hence prosecution against them could also be initiated based on the same charge-sheet." He added that such a position would at least buy her some time.

The BJP, on the other hand, is still to take stock of the situation. Apparently, the party is confident that Mayawati, like Rajnath Singh, will not take any measures. Party spokesperson Mukhtar Abbas Naqvi said: "There is so much time. We still have to consider the issue because so many other important matters have come up in the meantime. But there is no danger to the U.P. government and it will run its full term." But it is also a fact that Mayawati has to keep her Muslim voters in good humour and she has demonstrated her intention to keep the Ram temple issue at bay. At a press conference in Lucknow before the VHP's June 2 "mahayagna", she said: "Let me make it clear that Ayodhya is not on my government's agenda and any party that tries to create communal trouble will be dealt with firmly." Later, the tight security arrangements made at the time of the yagna ensured that it was attended by only a handful of VHP activists as against the organisation's claim of 50,000.

MEANWHILE, on August 2, the special court hearing the title suit cases on a day-to-day basis suggested that fresh excavations be done at the site to decide whether a temple or a mosque existed there. The court said that before any such excavation, the Archaeological Survey of India (ASI) could survey the disputed site with ground-penetrating radar or geo-radiology equipment and obtain the report, with the aid, including financial, of the Central government. The three-Judge Bench, comprising Justices Sudhir Narain, S.R. Alam and Bhanwar Singh, observed that if it was ultimately decided to excavate the disputed land, the excavation would be done under the supervision of five eminent archaeologists, even retired ones, including two belonging to the Muslim community. The court said that it may also appoint an observer for the excavation work. It directed that the videography of the excavation work be done and that should any artefacts be found, their photographs be taken and the material be kept in the custody of the State government. The court said that during such an excavation the idol of Ramlala must be shifted to the chabutra situated on the east of the disputed site.

PAWAN KUMAR/AFP
BJP leader Rajnath Singh.

The Judges observed that the basic issue in all the title suits was whether "the building has been constructed on the site of an alleged Hindu temple after demolishing the same", or "whether the disputed structure claimed to be Babri Masjid was erected after demolishing Janm Sthan temple at its site", or "whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janmbhoomi and Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood".

Interestingly, the court's suggestion has made all the litigants in the case see red. The VHP, the Ramjanmabhoomi Nyas and the Central Sunni Waqf Board (CSWB) have rejected the suggestion. Ramjanmabhoomi Nyas chief Mahant Ramchandra Paramhans warned that Hindus would protest if the Ramlala idol was shifted from the garbhagriha for an excavation. He said: "After the pranpratishtha ceremony is performed according to Vedic rites, no deity can be shifted, even for a short period. It is against Hinduism, and no court or government has any right to do so." Paramhans threatened a countrywide agitation if the court or the government initiated any action to excavate the site. According to the Nyas chief, there are no doubts about the existence of a temple because several carved blackstone pillars were found in the debris of the demolished Babri Masjid.

The VHP's international secretary Praveen Togadia said that excavations would mean violating the makeshift temple's sanctity. He claimed that excavations by the ASI in 1992 had proved that a Ram temple existed at the site.

The CSWB said that the court's suggestion violated the Supreme Court's January 7, 1993 order to maintain the status quo at the site. The apex court in its 1993 order had said that the status quo be maintained on the disputed site until the final order in the case. Jafrayab Jilani, counsel for the CSWB and convener of the Babri Masjid Action Committee, said: "Any order or proposal to carry out fresh excavations need the permission of the Supreme Court and an amendment to Section 7 (2) of the Ayodhya Acquisition Act, 1993."

Significantly, the legal view of the CSWB and the Ram Janmabhoomi Nyas is similar on the controversial court proposal. The CSWB also did not agree with the court's view that the basic issue was to ascertain whether a temple existed at the site before the construction of the mosque. "The basic issue is whether or not Rama was born at the site in question. And it is to be proved by the opposite party as they have claimed it to be janamsthan," said a CSWB official. Meanwhile, on August 21, the Lucknow Bench of the Allahabad High Court banned the daily reporting of the hearings and the publishing of opinions on the Ayodhya issue and said that any violation would amount to contempt of court.