The courts need to pullback from this kind of over-reach if they want their judgments to be respected and implemented.
Creating arbitrary laws based on judicial pronouncements is the surest way to destroy respect for the law and the judiciary.
The Supreme Court’s judgement yesterday (19 April), that essentially makes L K Advani, Murli Manohar Joshi, Uma Bharti and several others co-conspirators in the demolition of the Babri Masjid in 1992, is a travesty.
The two-judge bench, comprising justices P C Ghose and R F Nariman, ordered a time-bound trial to be completed within two years and shifted the trial venue from Rae Bareli to Lucknow using its omnibus powers under section 142 of the Constitution. The order also lumps the trial of these pro-Mandir leaders with those who may have literally brought down the Masjid with crowbars and pick-axes.
Section 142 is the villain in the Constitution that enables the Supreme Court to make the law instead of just interpreting it. Article 142 (1) says that:
“The Supreme Court, in the exercise of its jurisdiction, may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.”
In other words, whenever the court decides that “complete justice” has not been done, it can issue its own orders, and these orders will have the same force as laws made by parliament. This is the section that allows a bench to order liquor shops within 500 metres of all highways to be shut, to decide that diesel SUVs will not be registered in Delhi for a certain period, that a Special Investigation Team (SIT) will chase black money, et al. It is a catch-all clause under which the Supreme Court can insert itself into any issue.
This is why it has inserted itself into the Babri case. Advani’s lawyer, K K Venugopal, during hearings on the case, asked the bench to avoid using its powers under article 142. He made it clear that “article 142 is not a source of unlimited power for you to go ahead. There should be self-restraint”. A clause inserted in order to meet extraordinary situations is now being routinely used by the courts to intervene in anything and everything.
That the court did not exercise self-restraint in ordering a timebound trial of Advani and others is obvious, since it has overturned a legal verdict of the Allahabad High Court in the same case.
In a 20 May 2010 judgment of the High Court, Advani, Joshi and others were absolved of the “conspiracy charge” in the Babri demolition case. Any appeal by the Central Bureau of Investigation (CBI) against this judgment had to be filed by 29 August 2010 to be legal, but it did not happen. It finally was filed on 9 February 2011, nearly six months after the deadline expired. The CBI appeal was, according to The Times of India, “on the brink of dismissal” in 2013. Quite possibly, it is the change in the bench’s composition that made this verdict possible.
Moreover, the separation of the trials of Advani & Co from that of the rest of the accused was upheld by the same Supreme Court not once but twice, in 2002 and 2007, as The Times of India points out in another report. This implies that the highest court has been repeatedly presented with the same case till the “right” verdict was reached. The newspaper reports that since 4 March 2011, the case was listed “31 times before various benches” and 14 judges heard the matter, many of them sitting or future chief justices.
Clearly, the political and emotive nature of the case – where many Hindus want a Ram Temple built on the same site, and some Muslims (and Left historians) are against an amicable settlement – is proven by the latest verdict of the Supreme Court. It is less about the law, and more about satisfying some “liberal” judicial conscience.
If that wasn’t the case, one wonders why the court has not yet agreed to a time-bound decision on the main title suit in the Ram Janmabhoomi case. The Allahabad High Court had in 2010 clearly said that the area now occupied by “Ram Lalla” belonged to Hindus, and apportioned two-thirds of the total area of the complex to Hindus and one-third to Muslim litigants. Historical evidence, that the Babri Masjid was built on the site of an earlier temple, is now fairly irrefutable, as Meenakshi Jain establishes in her book, The Battle For Rama.
Coming to the current case of Advani & Co, the Supreme Court has effectively opened a new can of worms, even though it is more than likely that the case will ultimately fail in courts. Three points are worth making.
First, it is possible to say that Advani, Joshi, et al, had a moral responsibility in the demolition of the masjid by kar sevaks, but the line establishing a direct link between them and those who brought the masjid down is tenuous. Moral responsibility is not the same as legal responsibility. The accused were manifest in their desire to build the Ram Temple, but that is not the same as saying they sanctioned or organised its destruction in a conspiracy. Conspiracy theories seldom hold up in courts of law without adequate proof.
Second, the Supreme Court has established a bad precedent by reopening a case that failed the test of law several times, and was further appealed only as an after-thought by the United Progressive Alliance government in 2011, long after the deadline for appeals had ended. If the court can do this in this politically loaded case, what is to stop this from happening in a hundred other politically-sensitive cases, depending on which government is in power?
Third, the case for amending article 142 (1) has never been stronger. This article enables the courts to make laws, thus allowing activists and non-governmental organisations to misuse the courts to get what they want done, and on which politicians are unwilling to oblige them. The courts are thus being used to frame new laws that run contrary to constitutional provisions which state that only those who have the mandate of the people can make laws. Unelected and self-selecting bodies like the higher judiciary can interpret laws, but not make them.
The courts need to pullback from this kind of over-reach if they want their judgments to be respected and implemented. Creating arbitrary laws based on judicial pronouncements is the surest way to destroy respect for the law and the judiciary. This is happening in the liquor ban case, as states now arbitrarily denotify highways in order to protect their liquor revenues after the Supreme Court ban.