[sacw] sacw dispatch (30 Dec.99)

[Harsh Kapoor]

South Asia Citizens Web Dispatch
30 December 1999
_________________
#1. A Candle Light Vigil for Peace in the Sub-Continent
#2. Why hasnt the RSS bigwig LK Advani
(India's minister of Interior) not been brought to book in the Babari
mosque demolition case ?
_________________
#1.
Pakistan India Peoples Forum for Peace and Democracy
K-14 (First Floor), Green Park Extension, New Delhi, India.

Local Contact: COVA, 20-4-10, Near New Bus Stand Charminar, Hyderabad.
Ph: 4574527 and 4572984

Dated: 30th December 1999.

Dear Friends,

The last century has been one of wars and violence the world over, and the
last few decades have being very difficult and violent for our
sub-continent. At this very moment we are facing the tragic ordeal of a
hijack; majority of our people are afflicted by poverty, hunger, diseases;
are deprived of their rights as human beings and are suffering militancy,
authoritarianism and deprivation and marginalisation in different forms and
under various pretexts.

Pakistan India Peoples Forum for Peace and Democracy is organising "A
Candle Light Vigil for Peace and Peace in the Millennium for the
Sub-Continent" to express solidarity with all the poor, the marginalised,
the victims of violence in all forms and also to pray for peace and justice
in the Sub-Continent in the Millennium.

The Vigil is being organised at Tank Bund (Secretariat end) from 6:00 p.m.
to 8:00 p.m. on Sunday the 2nd January 2000.

We request you to participate in this Vigil along with your family and
friends to express your solidarity for the cause.

Looking forward to meet you.

Thanking you

Yours sincerely

Admiral Ramdas
Chairman
____________
#2.
=46rontline
Volume 16 - Issue 27, Dec. 25, 1999 - Jan 07, 2000
Cover Story [Ayodhya Agenda]

A DEFENDER OF MILITANCY

By all established definitions of "terrorism'', the demolition of the
Babri Masjid was a "terrorist act", and not a "political offence" as
claimed by L.K. Advani.

A. G. Noorani

A MINISTER in government who provides moral help to militants up in arms
against the state is a certifiable security risk. If he happens to be
Home Minister in charge of national security as well, he deserves a
resounding order of the boot from the Presi dent. L. K. Advani says that
the demolition of the Babri Masjid was a "political offence". What will
he say to the militants who offer the same defence after killing a
Minister, as in Madhya Pradesh, looting a bank or attacking an army camp
in Srinagar? Advani faces a First Information Report (FIR) prepared by
the Central Bureau of Investigation (CBI), which is now under his
control. The FIR, dated October 5, 1993, alleges, after a thorough
investigation, that he participated in a conspiracy to demolish the mas
jid on December 6, 1992 and committed grave offences in pursuance of
that conspiracy. Also charged were two other Union Ministers, Murli
Manohar Joshi and Uma Bharati.

On February 4, 1994, the Supreme Court issued notice for contempt of
court against Advani and others. The Chief Justice of India, Justice
M.N. Venkatachaliah, who issued the notice, and three successors,
Justice A.M. Ahmadi, J.S. Verma and M.M. Punchhi, came and departed.
Justice A.S. Anand is now the Chief Justice. This inaction for nearly
six years is in striking contrast to the court's readiness to proceed
against Arundhati Roy. Was Advani's a less grave offence?

On August 27, 1994, Special Judicial Magistrate Mahipal Sirohi found
that a prima facie case existed which warranted committal of those
accused by the CBI to trial by a Sessions Court which alone could pass
sentence in a grave case like this. On S eptember 9, 1997, Jagdish
Prasad Srivastava, Additional Sessions Judge (Ayodhya Episode), Lucknow,
"concluded that in the present case a criminal conspiracy to demolish
the disputed structure of Ram Janam Bhoomi/Babri Masjid was hatched by
the accused pe rsons in the beginning of 1990 and was completed on
6-12-1992. Shri Lal Krishan Advani and others hatched criminal
conspiracies to demolish the disputed premises on different times at
different places. Therefore, I find a prima facie case to charg e Shri
Bala Saheb Thakre, Shri Lal Krishan Advani, Shri Kalyan Singh, Shri
Vinay Katiyar" and others under Sections 147, 153(A), 153(B), 259,
295(A) and 505 read with Section 120(B) of the Indian Penal Code.

Thus, the case was found proved prima facie warranting a regular trial.
Matters had gone far beyond a charge-sheet filed in a court by the
police. Two judicial officers, the committing Magistrate and the
Sessions Judge, found that a prim a facie case was established on the
facts.

However, one formality remained for the trial to begin. Section 228(2)
of the Criminal Procedure Code lays down that where the Sessions Judge
"frames any charge", as in the Ayodhya case, "the charge shall be read
and explained to the accused, and the acc used shall be asked whether he
pleads guilty of the offence charged or claims to be tried". In short,
the accused must himself be physically present in order that his or her
plea to the charge is recorded. The lawyer's presence will not suffice.

Accordingly Judge Srivastava ordered: "All the accused persons are
directed to be presented in the Court on 17-10-1997 for framing of the
charges." By filing revision applications in the Allahabad High Court
and absenting themselves, the accused have ave rted the opening of the
trial for a full two years since October 17, 1997.

Not so, trial before the Bar of Public Opinion. The Sessions Judge's
61-page order is a public document which, thanks to the exertions of
Prakash Karat, Polit Bureau member of the Communist Party of
India(Marxist), is published in full as a CPI(M) public ation. It is
entitled "Ayodhya Conspiracy of Saffron Brigade Unmasked" (CPI(M);
A.K.G. Bhavan; 27 Bhai Vir Singh Marg, New Delhi-110001; Rs.3). The
Sessions Judge's order recorded: "On 5-12-1992 a secret meeting was held
at the house of Sh. Vinay Katiyar which was attended by Sh. Lal Krishan
Advani, Pawan Kumar Pandey and a final decision to demolish disputed
structure was taken. Their argument was that there was a ban on
construction not on demolition and accused No.1 to 38 assembl ed near
Ram Janam Bhoomi/Babri Masjid on 6-12-92 and Sh. Lal Krishan Advani
categorically said in his public speech before the demolition of
disputed structure that 'Today is the last day of Kar Seva. Kar Sewaks
would perform last Kar Seva.' When he came to know that central force
was proceeding from Faizabad to Ayodhya then he (Advani) asked the
public to block National Highway so that central forces do not reach Ram
Janambhoomi. Prosecution has also contended that when disputed structure
was being pulled down Sh. Advani asked Kalyan Singh not to tender his
resignation till the disputed structure is completely pulled down"
(emphasis added).

WHAT was Advani's defence? "No masjid existed on the spot, as no Namaz
was ever held there. Disputed structure was a mandir for centuries. The
court had restrained from constructing mandir. There was no injunction
against demolition of the mandir. "

And the Sessions Judge's finding? "On a careful perusal of evidence
produced by the prosecution in the present case, I have come to
conclusion that the prima facie evidence as alleged against the accused
persons is made out."

In paragraph 36 (page 14), he traced Advani's movements just prior to
the offence and concluded (para 37) that he was very much a party to the
conspiracy. In a recent interview (Outlook, December 20, 1999), Advani
said: "I had nothing to do with t he demolition." The Judge's Order,
however, recorded, "As per Ms. Ruchira Gupta, PW-145 that Shri Advani
declared that CRPF may arrive at any time. Therefore, all the people
should raise barricade on the main roads so as to prevent CRPF from
coming near the spot." This was also reported by the correspondents of
The Hindu and Indian Express (December 7, 1992) who had personally heard
Advani urging the men to block the roads so that the Central police
could not reach the spot and prevent the demolition. His denial is a
brazen lie. This, quite apart from his participation in the "secret
meeting" on December 5, 1992 when the final steps for demolition of the
masjid were decided.

This brings us to his stand on law and propriety. "As for the demand for
my resignation, there is a clear distinction between a political case
and being charge-sheeted in any other case, however motivated it may
have been." The hawala case, over which he resigned from the Lok Sabha
on being charge-sheeted, "involved moral turpitude of sorts, relating to
corruption". The implication is plain - demolition of a house of worship
does not involve "moral turpitude". Prime Minister Atal Behari Vajpayee
sang th e same tune on December 7, 1999. "There is no corruption charge
against them, nor any allegation of misuse of office. You know there is
a difference between charges of corruption and this kind of case."

By the Vajpayee test if a Minister is charged with taking the law into
his own hands to accomplish a political objective by recourse to
violence, he can continue in office, nonetheless. But can the demolition
of a house of worship be characterised as a " political offence" at all
as the expression is understood in the civilised world?

Law Minister Ram Jethmalani gives a weighty legal opinion on that point,
as set out in an article in Indian Express on October 16, 1990 and in a
box item in Frontline, May 22, 1998. Jethmalani referred to Advani's
oath as Member of Parliame nt. He is now Home Minister, sworn to uphold
the law. Jethmalani said: "There is no loophole or ambiguity in the
law." However, as Minister in the Vajpayee Government he shifted his
position. On April 17, 1998, Jethmalani drew a distinction between those
charge-sheeted by the police and the ones against whom charges were
framed by the court. By this very test, Advani must quit. Charges were
framed against him and others on September 9, 1997. Only their pleas to
the charges await the recording for the tr ial to begin.

Photo:
SHANKER CHAKRAVARTY
=46ollowing their arrest in the Babri Masjid demolition case, (from left)
Vishwa Hindu Parishad president Vishnu Hari Dalmia and BJP leaders Murli
Manohar Joshi, Advani and Uma Bharati at the Faizabad airstrip.

There is, however, one sure test which exposes the falsity of the
Bharatiya Janata Party regime's stand. If the Babri Masjid had stood not
in an India in the grip of the Hindutva campaign (as in 1990-92), but in
tolerant Nepal or Bhutan and the BJP's goo ns had gone there to demolish
it and returned home, could India have legally resisted Nepal's or
Bhutan's demand for their extradition in order to stand trial in that
country? Article 1 of the South Asian Association for Regional
Cooperation's Regional C onvention on Suppression of Terrorism (November
4, 1987), which India has ratified, provides a clear answer: "Subject to
the overall requirements of the law of extradition, conduct constituting
any of the following offences, according to the law of the C ontracting
State, shall be regarded as terroristic and for the purpose of
extradition shall not be regarded as a political offence or as an
offence inspired by political motives." Among the offences listed are
"(e) murder, manslaughter, assault ca using bodily harm, kidnapping,
hostage-taking and offences relating to firearms, weapons, explosives
and dangerous substances when used as a means to perpetrate
indiscriminate violence involving death or serious bodily injury to
persons or serious dam age to property; (f) all attempt or conspiracy to
commit an offence described in sub-paragraphs (a) to (e), aiding,
abetting or counselling the commission of such an offence or
participating as an accomplice in the offences so described."

Advani and his colleagues' conspiracy falls pat within these clauses.
Note that "serious damage to property" caused by "weapons" as a means to
"perpetrate indiscriminate violence" is regarded as an act of terrorism
as heinous as murder. At Ayodhya on tha t day of shame, the Sangh
Parivar's goons attacked presspersons, looted homes nearby, and attacked
Muslims in the area. In the wake of the demolition, over 2,000 people
lost their lives. Article 1 clearly says it "shall not be regarded as a
political off ence". If India could not have dubbed Advani's offence as
a political one had Nepal or Bhutan sought his extradition in an
identical case, how can its Ministers take the plea merely because the
police is under their thumb?

THERE is another aspect, besides. At the current session of the United
Nations General Assembly, India launched with great fanfare a campaign
in support of its draft "Comprehensive Convention on the Suppression of
International Terrorism". Article 2 of t he Convention defines the
offence: "Any person commits the offence within the meaning of this
convention if that person unlawfully and intentionally causes or
threatens to cause violence by means of firearms, weapons, explosives,
any lethal device or dan gerous substances which results or is likely to
result in death or serious bodily injury to a person or a group of
persons or serious damage to property, whether used (sic.) for public
use, a state or government facility, a public transportation system o r
an infrastructure facility."

Article 7 binds the states to offer mutual assistance in criminal
matters as provided in their respective domestic laws; but it adds this
overriding proviso: "Nevertheless, this assistance may not be refused on
the sole ground that it concerns a p olitical offence or an offence
connected with a political offence or an offence inspired by political
motives." This is the Government of India's own formulation put forth to
the international community. Its rejection of the Vajpayee-Advani Doctri
ne of "political offences" is far wider than in any other document. With
what face can the Government espouse this draft when three of its
Ministers have been found prima facie guilty by a court of law of
offences that fall within the Convention b ut refuse to quit office?

=46or long, Irish courts turned a Nelson's eye to terrorism perpetrated by
nationalists in Northern Ireland. The Irish Times of December 8, 1982
reported a landmark judgment by Chief Justice O'Higgins which marked a
break from the past: "The judicia l authorities on the scope of such
offences have, in many respects, been rendered obsolete by the fact that
modern terrorist violence... is often the antithesis of what could
reasonably be regarded as political, either in itself or in its connecti
ons."

The question depends on whether the circumstances "showed that the
person charged was at the relevant time engaged, either directly or
indirectly, in what reasonable, civilised people would regard as
political activity".

Only those of the Sangh Parivar would claim demolition of a mosque as a
legitimate "political activity".

THE Terrorist and Disruptive Activities (Prevention) Act (TADA) was
enacted in 1985 in the context of terrorism in Punjab. The terrorists
sought not only to undermine the authority of the state but to create a
schism between Sikhs and Hindus who had live d together peacefully for
centuries. As Law Minister A.K. Sen noted in the Statement of Objects
and Reasons, dated May 17, 1985, their object was "to disrupt communal
peace and harmony". Contrary to popular impression, TADA was aimed at
such activity as well. Section 3 of TADA was carefully crafted to cover
terrorism by communal elements:

"Whoever with intent to overawe the government as by law established or
to strike terror in the people or any section of the people or to
alienate any section of the people or to adversely affect the harmony
amongst different sections of the people does any act or thing by using
bombs, dynamite or other explosive substances or inflammable substances
or firearms or other lethal weapons or poisons or noxious gases or other
chemicals or by any other substances (whether biological or otherwise)
of a hazardous nature in such a manner as to cause, or as is likely to
cause, death of, or injuries to, any person or persons or loss of or
damage to, or destruction of, property or disruption of any supplies or
services essential to the life of the co mmunity, or detains any person
and threatens to kill or injure such person in order to compel the
government or any other person to do or abstain from doing any act,
commits a terrorist act."

Trials under TADA are speedier. They are conducted in Designated Courts.
Why Advani & Co. were not charged under TADA needs to be explained. By
all established definitions of "terrorism", the demolition of the Babri
mosque was a "terrorist act". By all e stablished definitions of a
"political offence", terrorism falls far outside it. Were Advani's and
Vajpayee's test to pass muster, the armed militants in Kashmir and in
northeastern India, the People's War Group (PWG) and other naxalite
groups would be b eyond the reach of the law. It is disgraceful that in
order to save Advani's tarnished skin, he and the Prime Minister should
dishonestly stretch the law and set a dangerous precedent for use by
law-breakers in power in the future and armed militants on the rampage
at present.

None of the previous governments at the Centre (P.V. Narasimha Rao's,
H.D. Deve Gowda's or I.K. Gujral's) was too keen on pursuing the matter.
The Liberhan Commission of Inquiry has reduced itself to a joke. But
there is an aspect which has been neglecte d. In the hawala case the
Supreme Court ordered the CBI not to take instructions from the
Government because Prime Minister P.V. Narasimha Rao was himself under a
cloud. Does not the principle apply also to Advani as Home Minister? The
court can be asked to rule on this issue. He has an honourable
alternative - resign. There is good precedent for it.

British Home Secretary Reginald Maudling followed settled precedent when
he resigned on July 18, 1972, the day the Prime Minister announced that
the Director of Public Prosecutions had instructed the police to
investigate into the affairs of John Poulson , a wealthy architect with
whom Maudling had had a close business relationship in the mid-1960s. As
The Economist noted, he was "neither accused nor suspected of any crime,
either in connection with the bankrupt architect, Mr. John Poulson, or
any one else. As, however, Mr. Poulson's other activities are now the
subject of investigation by the Metropolitan Police, over whom the Home
Secretary is police authority, it is sensible that Mr. Maudling should
have given up the Home Office while th e lengthy inquiries go on." In
the instant case, Advani is being prosecuted by the very agency which is
under his control, the CBI.

It is unthinkable, of course, that Advani would do the decent thing.
Every facet of his record since 1989 belies the hope. Whether the
tortuous proceedings in the courts result in a conviction or not, Advani
knows what he has done. Like a bishop u nfrocked he tries to brazen it
out. But Advani will never feel clean for the rest of his life. He is
uneasily conscious of that.

And that is true no less, of course, of his even more distinguished
ministerial colleagues - Murli Manohar Joshi and Uma Bharati. To all
three, one would pose two questions: Were the ones who attempted to
assassinate President Chandrika Kumaratunga on De cember 18, 1999, out
to commit a "political offence"? And, pray, what about the assassins of
Gandhi, led by the RSS' own Nathuram Godse, and those of Indira Gandhi
and Rajiv Gandhi? Were they also political offenders like L.K. Advani,
Murli Manoha r Joshi and Uma Bharati?

__________________________________________
SOUTH ASIA CITIZENS WEB DISPATCH is an informal, independent &
non-profit citizens wire service run by South Asia Citizens Web
(http://www.mnet.fr/aiindex) since1996.