Narasimhan Vijayaraghavan– Author is practising advocate in the Madras High Court)

Reports
Jury is still out on the Babri demolition verdict
2 October 2020
Narasimhan Vijayaraghavan

2

“All 32 accused in the criminal prosecution for the demolition of Babri Masjid are acquitted” run the banner headlines in national newspapers. Electronic media has not stopped running the pronouncement of the verdict by the Special CBI Court Judge S K Yadav, in his 2300 page order with comments across the divide. Editorialising that it was an abomination and travesty of justice and the like, are also upon us. Social media is, of course, agog with comments bordering on eulogy, celebration and scandalous.

The hypothesis of those critical of the verdict, who can be identified by their affiliations, is that are we to take it that “An Earthquake pulled down the disputed structure”. It is not a rhetorical or a satirical or cynical poser, but one that typically arises, every time a convict is acquitted in the wake a dastardly crime of despicable proportions.

It may defy the imagination of the commoner as to how a court of law could acquit the accused ‘who were admittedly and undeniably on the scene of action when the structure was violently pulled down in public view’. It is understandable. But criminal jurisprudence is not easy to grapple with, particularly on the plane of burden of proof to establish beyond reasonable doubt, the guilt of the accused on the crucible of evidentiary mandate.

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It would make robust common, logical and legal sense to de-clutter the maze to appreciate and possibly understand that it would be unfair and unjust to accuse the Judiciary of forsaking its duty or even allude to any unseen hand of the executive. To rescue the special judge from unwarranted criticism, a simple reference to the classic definition from the Supreme Court may be apt.

“One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused.” (Kali Ram v. State of Himachal Pradesh- SC- 1973)

The Court has to be ruthlessly objective in its endeavour. The accused are entitled to take advantage of any and every evidentiary lacuna.The CBI had to be at its professional best. But, it is not always easy when there is a mob at work and identification of individual culpability difficult to come by. If anyone could fail, it is the investigation and the judiciary cannot be faulted for it.

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It is not as if the Court is unaware of the broad daylight in which the structure was rudely pulled down. Or that the orders of the Allahabad High court discharging the accused was pulled apart by the top court and special court directed to conduct the trial within a time frame. Or that in the Ram Janmabhoomi land dispute verdict, the apex court did take note of the violent act of the structure being razed and the need to pin blame for it. Just as you are and I are aware of all these developments, the Judge S K Yadav would have been too.

In a case of this nature, CBI had to show that there was a ‘meeting’ and ‘a common plan/conspiracy’ and ‘meeting of minds’ and ‘common intention’ to ‘perpetrate the crime’ and the ‘hatched plan was carried out’ on Dec 6th, 1992. There must be ‘probative value in such evidence’ that each of the accused played their part and were involved in the conspiracy. It is the lack of such ‘evidentiary basis’ that the learned judge has premised his decision on, while expressing his inability to convict the accused. The inevitable conclusion of the absence of ‘proof of a plan between the co accused’ led him to conclude that the act perpetrated by the culprits was ‘spontaneous’. No other inference was possible or permissible. That did not and cannot mean the special judge was ad idem with the ruling dispensation, as is being harshly suggested. It is just that he was ad idem with the law of the land, as put in place by the top court, as he saw it.

Public perception is of no relevance before a court of law. We The People may strongly believe in a given set of facts or affairs. But, it will not pass muster unless it satisfied the tenets of rules of evidence vis a vis burden of proof and the basic SOP of proof beyond reasonable doubt. That is why you can have the spectacle of US footballer O J Simpson being acquitted of criminal charges of murdering his ex-girlfriend, but yet being asked to pay damages for ‘murdering’ her, in a civil proceeding. It is an ‘anachronism’ which surely may escape the bystander, not trained in legal niceties.

It may suffice to support Judge S K Yadav with these pearls of wisdom from the top court, as to what matters before a criminal court. “It needs all the same to be re-emphasised that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused.

The courts would not be justified in withholding the benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe, him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arranged as accused. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequence of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society.”

Yes, the verdict may sound jarring and skewed in the face of the public demolition of Babri Masjid, photographed, videographed and witnessed by many. A crime was committed. But were the 32 accused the ‘criminals? Judge S K Yadav did not find satisfactory evidence of a conspiracy and a plan. It would be unbecoming of those to indulge in name calling or suspect the bonafides of the verdict or the integrity of the presiding official. Let us accept that the fat lady has not yet sung on this unsavoury episode, a blot on Indian constitutional secularism. The jury is still out as the matter may well be escalated to where it may truly belong, the judicial pulpit for a final imprimatur viz. the Supreme Court of India.

(Narasimhan Vijayaraghavan– Author is practising advocate in the Madras High Court)

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