New Delhi: The Babri Masjid judgment reflects less on Judge S.K. Yadav and more on India’s highest investigative agency, the Central Bureau of Investigation (CBI), said ThePrint’s Editor-in-Chief Shekhar Gupta in episode 581 of ‘Cut The Clutter’.
Gupta also spoke about the Hathras gang rape case in this episode, highlighting how a nexus of politicians, police and gangsters are at play there.
Onus of evidence on CBI
A special CBI court in Lucknow Wednesday acquitted all 32 accused in the Babri Masjid demolition case.
Judge Yadav had concluded that the case did not prove that the demolition had been planned ahead, but instead happened all of a sudden.
In any criminal investigation the role of the prosecuting agency is key, said Gupta.
The CBI has been handling the case for 28 years, through the terms of various prime ministers from P.V. Narasimha Rao to Narendra Modi.
A judge is not only limited by the evidence presented, but also by the quality of the evidence. The onus of this quality lies solely with the prosecuting agency, in this case the CBI. What makes evidence even more crucial is that in the Indian judicial system it can only be presented in the trial courts and not in the stage of appeal in higher courts, Gupta said.
After the demolition of the Babri Masjid on 6 December 1992, two criminal FIRs were registered.
One was being tried in Lucknow against unnamed kar sevaks and the second in Rae Bareili was against eight leaders — L.K. Advani, Murli Manohar Joshi, Uma Bharti and Kalyan Singh from the BJP, and Sadhvi Ritambhara, Vishnu Hari Dalmia, Vinay Katiyar and Giriraj Kishore from the Vishwa Hindu Parishad for criminal conspiracy.
In 2017, a Supreme Court bench headed by Judge Rohinton Nariman said that all cases should be clubbed together to stop further delays in the case. The Nariman bench ordered that a special court be set up, with protection of tenure, which implies that even if the judge retires he will be granted an extension to finish the case.
The case was to be completed in a time-bound manner and the last extension to the judge was given in August, ushering in the judgment in September.
‘Nobody was held guilty’
The criminal case is different from the title dispute case which was settled by the Supreme Court in 2019 in favour of the Hindu party.
In the criminal cases, charges framed were: Spreading enmity on the grounds of religion, giving mischievous statements which incited violence and finally criminal conspiracy.
“Under Indian criminal law, criminal conspiracy is not easy to prove. The burden of evidence for conspiracy, particularly involving a large number of people is very, very tough,” said Gupta.
In this case, Gupta added, the CBI relied essentially on media reports and witnesses of journalists who were present during the incident. After examining 300 witnesses in the case, the Judge said that the witnesses “contradict each other” and were “incoherent and inconsistent”.
The Judge said that the journalists had given their published reports and videos as evidence, not the unedited reports or footage. “This shows basic ignorance of journalistic practice, of how a newsroom works,” said Gupta.
In a newsroom, journalists do not preserve drafts as they go through various stages of editing, rather what is preserved is the published work, he added.
It is “unreasonable”, Gupta said, to expect journalists to preserve original unedited drafts. Similarly with the videos, it is “unreasonable” to expect unedited footage as footage that is aired is always edited.
The Judge said that the mosque was instead brought down “in the spur of the moment, because anti-social elements got involved in the crowd”. Judge Yadav also said that the mere presence of these leaders does not imply conspiracy and said he needed more evidence to establish conspiracy.
Interestingly, in the 2019 title dispute judgment, the Supreme Court had said that “it is necessary to provide restitution to the Muslims for the unlawful destruction of their place of worship.”
The same judgment also noted that “the destruction of the mosque and the obliteration of the Islamic structure was an egregious violation of the rule of law”.
But 28 years later, Gupta said, “We have a situation where nobody is held guilty.”
The possibility of bringing out new evidence in higher courts also is “near zero” as the case has finished in the trial court. “That is not to say that these people couldn’t be innocent, but at the same time, it’s not as if a big mosque can be brought down and nobody will be guilty. So to that extent, inadequate justice has been done,” said Gupta.
Case of ‘sab mile hue hai’ in Hathras
Inadequate justice was also served to the 20-year-old gang rape victim from Uttar Pradesh’s Hathras, who was raped by four Thakur men on 14 September. She succumbed to her injuries Tuesday and was cremated by the Uttar Pradesh Police on the intervening night of 29 and 30 September, in the absence of her family.
The incident lays bare the “triple nexus of the gangsters, police and politicians” said Gupta.
In this case, the actions of the police, the local magistracy and in many ways a lot of the media prove that this was a case of ‘sab mile hue hai’ (everyone’s complicit), he added.
The nexus has also been portrayed in popular culture, in shows like Mirzapur, for instance. The fact that the family of a Dalit girl was not even given the opportunity to attend her cremation unfortunately shows this same nexus at play, Gupta said.
“The nexus and the culture portrayed in these shows is not untrue as this incident shows us,” he said. It is, in fact, especially true in the case of the Hindi heartland and Uttar Pradesh in particular, he added.
Watch the latest episode of CTC here: