Home / World / Babri Masjid case has the potential to be a model for future criminal trials in India, but will it achieve it? – Firstpost

Babri Masjid case has the potential to be a model for future criminal trials in India, but will it achieve it? – Firstpost

While hearing the CBI challenge a judgment passed by the Allahabad High Court upholding dropping of conspiracy charges against LK Advani, Murli Manohar Joshi, Uma Bharti and others in the Babri Masjid demolition case, a division bench of the Supreme Court directed the Special Court in Lucknow hearing the case to complete the trial and deliver its judgment within two years.

The Supreme Court, at the time of passing this direction, was aware of an order dated 8 December, 2011, passed previously by the Allahabad High Court directing day-to-day trial before the special judge hearing the case in Raebareli. It noted that "this has only been followed in the breach as less than a hundred witnesses have yet been examined".

LK Advani is one of 12 accused of criminal conspiracy. Reuters

LK Advani is one of 12 accused of criminal conspiracy. Reuters

It would seem to a person unfamiliar with the Indian legal system that the two-year deadline is adequate to conclude a trial that stands pending, as of date, for over 20 years. But data regarding trials would indicate otherwise — Uttar Pradesh has approximately 2,513 pending cases per judge, and a total of 631,290 cases pending for more than 10 years, and is still known to have a high case disposal rate!

To dissuade obtaining adjournments, the Supreme Court further directed the CBI to ensure that the trial does not get adjourned due to absence of witnesses, and also directed that the trials in Raebareli and in Lucknow will stand amalgamated, and will continue from the point where they stand today. These directions do not take away the inalienable rights of an accused facing trial to cross-examine witnesses in respect of their examination-in-chief before court, and to further recall such witnesses for failure to cross-examine. Such recall of witnesses already examined by the freshly added accused, with astute lawyers with great forensic skill appearing for them, would naturally take some time.

After such recall of witnesses, the trial court also faces the daunting task of ensuring the examination of the other prosecution witnesses is completed. All the surviving accused from the original 48 would then be asked questions regarding incriminating circumstances against each one of them that have emerged during the trial, in order to put forth their defence. Thereafter, each accused has the right to lead defence evidence by calling witnesses to depose in their favour. After this, final arguments would have to be addressed by the prosecutor for the CBI, and thereafter for each accused.

Even if a judgment recording a conviction is passed, each accused has the right to argue mitigating circumstances to merit a lesser sentence than the maximum prescribed. To short-circuit this entire process on account of the time-bound directions of the Supreme Court would arguably lead to a violation of the right of the accused to a fair trial.

The CBI prosecutor will have a vital role to ensuring that the time limit is adhered to. A large factor that plays into the efficiency of the special judge depends upon how effectively the prosecutor stymies requests from lawyers for the accused to delay the matter. There has already ostensibly been a delay of more than a week from the four-week deadline (from 22 April — giving five days' grace period for communication of the judgment of the Supreme Court to the trial court) granted to the trial court to frame charges.

Even this was sought to be delayed by lawyers for LK Advani  who is among the 12 accused who have been sent back to trial for conspiracy charges — seeking to move a discharge application, despite clear directions from the Supreme Court to frame charge under Section 120B of the Indian Penal Code (criminal conspiracy).

The CBI has previously been accused of acting like a caged parrot of the dispensation, but a perusal of the Supreme Court's judgment sending Advani to trial for conspiracy would prima facie indicate otherwise. Contradicting such accusations, the additional solicitor general representing the CBI vehemently argued before the Supreme Court that the top BJP leaders ought to be sent back to trial, and that the Allahabad High Court was wrong in 2010 to have upheld the order of the special court dropping proceedings against such accused. It remains to be seen if such vigour is replicated by the CBI counsel at the time of trial.

The UP government has been recently accused of shielding its chief minister from trial, when it refused to grant sanction to prosecute him for alleged incendiary speeches that led to the Gorakhpur riots in 2007. One may already view the state government as having acted dubiously in the Babri Masjid case, by not issuing a fresh notification empowering the special court constituted to hear the case against the Karsevaks to hear the case against the eight alleged instigators, including Advani, Uma Bharti and Joshi.

The CBI was even castigated by the apex court for failure to challenge such a refusal. The Uttar Pradesh government's role in sticking to the timelines as per the diktat of the Supreme Court also remains to be seen, particularly in view of the fact that the court observed that the judges hearing the case in Raebareli had been transferred a number of times. The responsibility to trace witnesses who are to testify about the events of 1992 would largely be upon the local police in order to assist the CBI pairvi officer assigned to the case.

The progress of the Babri Masjid trial is one that has the potential to lead to a complete overhaul of the margdarshaks of the Bharatiya Janata Party in 2019. It also has the potential to be a model for future criminal trials across India. The hope is that it shall do either, and not instead be consigned to the fate of most trials that continue to remain pending much after the expiry of the statutory, or the judicial mandate of conclusion in a time-bound manner.

Published Date: May 31, 2017 08:06 am | Updated Date: May 31, 2017 08:19 am

Source: Google News

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