“Article 142(1) of the Constitution of India had no counterpart in the Government of India Act, 1935 and to the best of our knowledge, does not have any counterpart in any other Constitution the world over.” the bench said.
On April 19, 2017 a bench of Justices P C Ghose and Rohinton F Nariman said the Supreme Court was convinced it must use its power under Article 142 to do complete justice in the matter and club the trial of Advani and others with scores of kar sevaks, who are being tried at a special court in Lucknow, so that a judgment is delivered within two years.
The entire text of the judgement may be read here.
“In the present case, crimes which shake the secular fabric of the Constitution of India have allegedly been committed almost 25 years ago. The accused persons have not been brought to book largely because of the conduct of the CBI in not pursuing the prosecution of the aforesaid alleged offenders in a joint trial, and because of technical defects which were easily curable, but which were not cured by the state government,” the bench said.
In doing so the Supreme Court revive the criminal conspiracy charges against the senior leaders of the BJP and after shifting their trial from Rae Bareli, also ordered restoration of charges against Rajasthan Governor Kalyan Singh and eight others in connection with the case but exempted Kalyan Singh from prosecution on account of the constitutional immunity he enjoys as Governor.
“Kalyan Singh, being the Governor of Rajasthan, is entitled to immunity under Article 361 of the Constitution as long as he remains Governor of Rajasthan. The Court of Sessions will frame charges and move against him as soon as he ceases to be Governor,” the bench said as it allowed a CBI appeal against the dropping of conspiracy charges against the veteran BJP leaders.
Following are the salient points of the order:
- The Additional Sessions Judge (Ayodhya Matters) has been directed to frame additional charges of criminal conspiracy against Advani, Joshi, Bharti, Vinay Katiyar, Sadhvi Rithambara and Vishnu Hari Dalmia within four weeks. Accepting submissions by senior lawyer Kapil Sibal and advocate M R Shamshad, who represented Haji Mehboob, one of the original petitioners in the Ramjanmabhoomi-Babri title suit case, the court also directed the sessions judge to conduct their trial on a day-to-day basis from the current stage and finish it in two years while allowing accused to recall crucial witnesses wherever required.
- “There shall be no de novo (fresh) trial. There shall be no transfer of the judge conducting the trial until the entire trial concludes. The case shall not be adjourned on any ground except when the Sessions Court finds it impossible to carry on the trial for that particular date. In such an event, on grant of adjournment to the next day or a closely proximate date, reasons for the same shall be recorded in writing,” the bench held. Besides, the top court gave liberty to all the parties, including the prosecution, complainants and witnesses, to approach it directly if its “directions not being carried out, both in letter and in spirit”.
- What is key to the judgement is to note that the addition of conspiracy charges do not enhance the maximum punishment of five years in jail, as prescribed under the alleged offences that mainly related to promotion of enmity between different groups on the ground of religion. But, the shifting of the trial to a sessions judge takes away one right of appeal from the accused since the leaders were being tried by a magisterial court in Rae Bareli and, therefore, they could move the sessions court against the magistrate’s order at first instance. Their appeal would now lie before the High Court.
- There are two main FIRs registered in connection with the demolition — one each in Lucknow and Rae Bareli. In Lucknow, the accused, chiefly the kar sevaks, face charges of demolition whereas those in Rae Bareli, including Advani and others, were being tried for allegedly instigating the crowd through speeches.
- Seeking a joint trial, the CBI had in October 1993 filed a consolidated chargesheet against both set of accused at Lucknow but the cases could not be clubbed for want of sanction from the High Court before setting up a special court to try both FIRs as one case. In 2001, the Allahabad High Court affirmed the decision that the government’s notification was invalid due to lack of approval from the High Court.
- Since no new notification was issued by the state government after this judgment, the Lucknow court dropped proceedings against 21 persons, which included Advani and Kalyan Singh. While Advani and seven others continued to face trial at Rae Bareli where there was a separate FIR against them for inciting the mob from a dais near the site of the incident on December 6, 1992, 13 others, including Kalyan Singh, were let off completely since no charges were pressed separately against them at Rae Bareli after their exoneration in Lucknow.
- The CBI appealed against the HC order, and sought trial of all 21 accused under criminal conspiracy charges, apart from other offences. Allowing the plea for a joint trial, the bench said that the evidence for all these offences is almost the same and these offences, therefore, cannot be separated from each other.
- It maintained that the CBI’s failure to challenge the 2001 HC order on invalidation of the notification on the joint trial “has completely derailed the joint trial envisaged and has resulted in a fractured prosecution going on in two places simultaneously based on a joint chargesheet filed by the CBI itself”. The court turned down arguments by senior advocate K K Venugopal, who appeared for Advani and Joshi, that the court could not exercise its authority under Article 142 to take away rights of a litigant when there are substantial provisions on the particular subject.
“Article 142(1) of the Constitution of India had no counterpart in the Government of India Act, 1935 and to the best of our knowledge, does not have any counterpart in any other Constitution the world over. The Latin maxim fiat justitia ruat cælum is what first comes to mind on a reading of Article 142 — Let justice be done though the heavens fall,” the bench said.
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