TT, New Delhi, April 6: The Supreme Court today indicated it would revive the conspiracy charge against senior BJP leaders L.K. Advani and Murli Manohar Joshi and 19 others in the Babri Masjid demolition case.
The court said it would ensure a joint trial on a day-to-day basis of the two cases pending in Lucknow and Rae Bareli so that the process is completed in two years.
The CBI, led by additional solicitor-general Neeraj Kishan Kaul, and senior advocate Kapil Sibal, appearing for Babri Masjid activist Haji Mahboob Ahmad, pressed for the revival of the conspiracy charge. The BJP leaders, being represented by senior advocate K.K. Venugopal, opposed the plea and the clubbing the two trials.
The court reserved its verdict for two days.
Kaul told the court: "During the course of the investigation, the CBI came across evidence of an overarching conspiracy, which was in the nature of a concerted action in tandem." He pleaded that the conspiracy charge be brought back against Advani and the others.
During the day-long hearing, the bench of Justices P.C. Ghose and R.F. Nariman said it would use its extraordinary powers under Article 142 to render "complete justice" by including the conspiracy charge. Article 142 vests the Supreme Court with the power of passing any order or judgment.
Justice Ghose, heading the bench, told the lawyers: "We will use our extraordinary powers under Article 142 to transfer the trial in Rae Bareli to Lucknow. Since 25 years have already passed, in the interest of justice to all, the matter should be heard in one court, preferably in Lucknow, by including the conspiracy charge against all the 21 accused and the kar sevaks."
The other leaders against whom the conspiracy charge had been brought but had been quashed later include Uma Bharti, Vinay Katiyar, Sadhvi Ritambara, Giriraj Kishore and Vishnu Hari Dalmia.
Venugopal objected to the suggestion for the revival of the conspiracy charge and a joint trial through the court's use of its powers under Article 142.
Justice Ghose told him: "A person should not suffer litigation for 25 years. In your own interest, the trial must come to an end and it is for your betterment. Why should it be kept pending for 25 years? Why should they (the accused) carry the burden of the case for so many years?"
The case is 15 years old but the court said 25 years probably in a figurative way.
The other judge, Justice Nariman, observed: "It is a case of evasion of justice. Some of the accused have died. Others will die."
The court rejected Venugopal's argument that clubbing the two cases for a joint trial would violate the fundamental rights of the accused as they are also entitled to the protection guaranteed under Article 21, which mandates that no person can be deprived of his or her life and liberty without procedure established by law.
"My fundamental right cannot be violated by this court by exercising the power under Article 142. The power under Article 142 is subservient to my right under Article 21," Venugopal argued.
Justice Nariman shot back: "What about the fundamental rights of the victims?"
Rejecting Advani's argument, Justice Nariman said: "Transfer from one court to another court is a complete procedural issue, we are not violating any of your rights. We have the power to transfer (a case) from one court to another as it is a technical ground."
Justice Ghose said: "We will direct the trial to be completed in two years. There will be a day-to-day hearing."
Referring to the Supreme Court's recent order directing the closure of liquor vends within 500 metres of highways, Venugopal said: "Your Lordships' use of Article 142 should be in accordance with law and due process of law as guaranteed in Article 21. Your recent order on the highway liquor ban has rendered lakhs of people jobless."
The Supreme Court is hearing an appeal filed by the CBI in 2011, when the UPA was in power, against Allahabad High Court's May 2010 order upholding the Rae Bareli court's May 2001 verdict discharging the BJP leaders of the conspiracy charge.
The case filed in Rae Bareli was against Advani and the others who were on a dais in Ayodhya on December 6, 1992, when Babri Masjid was attacked. The case in Lucknow was filed against lakhs of unknown " kar sevaks" who were actually involved in the demolition.
In the Rae Bareli case, the CBI had initially chargesheeted Advani and 20 others under IPC Sections 153A (promoting enmity between classes), 153B (imputations and assertions prejudicial to national integration) and 505 (false statements and rumours, etc., circulated with the intent to cause mutiny or disturb public peace).
After around three years, the agency invoked charges under Section 120B (criminal conspiracy) against the senior leaders. The charges were quashed by the Rae Bareli special court on May 4, 2001 and upheld by Allahabad High Court in 2010. The charges against Advani and the others entail a maximum punishment of up to five years in jail.