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Published in the 16-31 Dec 2003 print edition of MG; send me the print edition

Babari counter-affidavit
‘Secular’ Mulayam sings to Hindutvites
By Rizvi Syed Haider Abbas

Lucknow: Politics is sitting on which side of the table and Mulayam Singh Yadav, the present CM of UP is perhaps, right now, the best example of the same.

As everyone can easily remember the same Mulayam Singh Yadav [who was not the CM then] was opposed to the Central Bureau of Investigation (CBI) move of dropping the conspiracy charge against LK Advani, MM Joshi in connection with the Babri Masjid demolition case during the last monsoon session of the parliament in July 2003. The parliament was even adjourned on the same issue.

Now, contrast the words used by Mulayam Singh Yadav’s government to file a counter-affidavit against the writ petition filed by Wajahat Ansari in the Supreme Court. Wajahat Ansari had pleaded for the nullification of the amended chargesheet filed by CBI and for the transfer of the case back to Lucknow instead of Rae Bareilly.

The words are, "The contents of the writ petition are admitted only to extent that Babri Masjid was destroyed on Dec 6, 1992. The contention of the petitioner that the aforesaid act was done under criminal conspiracy by any specific community or political party is wrong and denied."

The counter affidavit is a parawise reply in a four–page document using the terms ‘wrong and denied’ eight times. The state government was too quick to handle the jerks as Mulayam Singh Yadav himself felt the immediate reaction of Muslims while he was campaigning in Harora for the seat left vacant after ex-Chief Minister Mayawati resigned and he could not take any risks. Mulayam has won the Harora seat. The follow-up was quick and chief secretary Akhand Pratap Singh accused the counsel in Supreme Court that he had added a few words on his own in the affidavit which lead to the confusion that the government had changed its stand on the Babri issue.

Only the naïve will buy the argument of Mr Singh because the issue of Babri Masjid and its demolition is perhaps one of the most sensitive issues which has bogged the nation. The responsibility for the goof-up, will surely fall on the CM and his men like the Advocate General, Principal Law Secretary / Legal Remembrancer and Chief Secretary and not the individual who appeared in Supreme Court.

RC Verma, the individual to whom the conspiracy has been attributed was only the Advocate-on-Record who signed the application which was filed with the counter-affidavit in the Supreme court on 18 October. The job of Advocate-on-Record is only confined to the extent that any affidavit in the Supreme Court is filed after his signatures. RC Verma, therefore, cannot be blamed for the filing of the counter-affidavit as he was duty bound to file the document or affidavit in respect of facts and policy decision as- they-were- supplied- to-him by means of parawise narrative or comments by the state government.

Can an Advocate-on-Record or for that matter any counsel in the wildest of dreams dare change the policy and the factual contents of a government document? Perhaps never. 

Now, the big question is who are the authorities directly or indirectly responsible for the preparation of the parawise narrative or comment which was prepared in Hindi language in Lucknow by the state government [State Government is a party to the case] and officers of the Principal Secretary of the particular department to which it belonged? Since the matter is a political issue and is of national importance and as such it requires Legal Remembrancer office, Chief Secretary and above all Advocate General to clear the matter, the onus of the slip surely lies on all of them.

The language of the counter affidavit is not only explicitly harsh but brutal as well [obviously because it is the language unexpectedly coming from Mulayam’s government]. With regards to the plea of Wajahat Ansari asking that CBI should not have dropped the conspiracy charge, it says, "the submission of the petitioner that the trial of the case should have been proceeded on the basis of charge-sheet filed by the CBI on Oct 4 / 5, 1993 in Crime case no.198/92 is legally not correct. The investigating agency has power to further investigate the case at any stage under section 173(8) of Cr.PC. further submission of the petitioner that the political pressure has been used on CBI in further investigation which was done u/s 173(8) of Cr.PC is not admitted."

The government did not take any stand to reverse the decision taken by BSP-BJP coalition CM Mayawati and just toed its predecessor’s line. Refusing the petitioner’s demand that the case be transferred to Lucknow instead of Rae Bareilly the counter affidavit said, "In reply to the submission of the petitioner that the crime case no198/92 should be tried in the court of Special Judge, Lucknow, it is submitted on behalf of the replying respondent that the special court already exists at Rae Bareilly."

Reading between the lines brings up a very pertinent question. Who is the deponent of the counter-affidavit and we find it is PK Jain — Special Secretary Law who is responsible for swearing in the affidavit.

What is more interesting is that immediately after swearing the affidavit on 18 October Mr Jain was transferred to the district courts. This is perhaps the prime indicator of something underhand and of the bad faith of the government. Since the job was already done the government was in a position to sit comfortably and say that it was unable to take any decision against him as any action against him would require permission from Chief Justice of High Court, U P.

What one fails to comprehend is the allegation of AP Singh accusing RC Verma of adding certain things on his own, whereas, the reality is that RC Verma had only got the affidavit translated from Hindi into English and this was because Hindi is not allowed in the Supreme Court and the translation is accurate.

Since the matter is of extreme political importance and supposedly pertains to the policy decision of the government, Chief Minister Mulayam Singh Yadav is solely accountable for making the policy decision/base on any issue of the government. Those who give the CM’s policy a legal shape and prepare the draft are Advocate General of the state and Legal Remembrancer. The officer concerned [PK Jain] who has sworn the affidavit is a sub-ordinate officer to him for filing draft and secondly he cannot even refuse to swear it. This brings out the simple fact that the sole responsible person is the author of the draft.

Can the Advocate General make such a slip? Well, the possibility cannot be ruled out because Virendra Bhatia has made history by becoming the first AG in UP [or may be the first in India as well] with a criminal law background. Everyone in Lucknow knows Mr Bhatia as a prominent criminal lawyer in the High Court and one who is not very well versed with constitutional and civil matters, which is perhaps the prime requirement for any AG. A state as important as UP cannot expect its AG to plead for a murder case.

Will Mulayam Singh Yadav try to understand that the Advocate General is a constitutional authority, and therefore, will not let the government face embarrassing situations so easily. 

The controversy which erupted in the media about the counter affidavit made the state government submit a supplementary counter-affidavit in the Apex Court on 18 November and thus making a clarification. "Certain facts and averments in the said counter-affidavit [Oct 18] were stated inadvertently owing to oversight and hence the same require clarifications, which are placed on record by means of the present supplementary counter-affidavit," said the deponent Atul Kumar.

"The act of those persons who have demolished the Babri Masjid on 6 December 1992 was most barbaric, shameful, condemnable, unpardonable and was an act against the national interest and integrity of the nation," said the supplementary counter-affidavit. 

The supplementary counter-affidavit is surprisingly silent on whether the accused of the demolition be tried in Lucknow and not in Rae Bareilly. "The trial is going on before the Special Judge, Lucknow, in regard to the charge sheet submitted by CBI in crime no 197/92 and the other connected FIRs, except Crime no198/92 [this covered the conspiracy charge]. As regards crime no. 198/92, the matter was firstly investigated by CB-CID before Special Magistrate. Subsequently, further investigation was entrusted to CBI who also filed charge sheet against the accused persons and trial in respect of this crime is pending before the Special Magistrate, Rae Bareilly. Since the trial is pending and is to be decided by the Hon’ble Court, no further comments in this regard are required by the State Government." said the supplementary counter- affidavit.

Rae Bareilly court has already exonerated LK Advani in the demolition case on 19 September. Now, this time too the state government has faltered as instead of giving an amendment application supported by an affidavit it has merely amended its previous affidavit by means of supplementary counter affidavit which state government cannot do without the permission of the court.

This is the second major blunder because supplementary counter affidavit is meant to supplement any further information and the mistake can only be rectified by moving an amendment application and that is subject to the permission of the court. If court allows the amendment then the amendment is incorporated by means of addition or deletion.

Interestingly, the reason given in the supplementary counter-affidavit for changing the contents of some of the paragraphs is "inadvertently owing to the oversight" which cannot be digested as the reason for changing the whole policy in-reverse, because nothing seems to have been left out due to oversight, and the whole averments of the counter-affidavit are surely based on the policy decision of the government and that cannot be reversed blaming it on oversight.

The onus of accountability, therefore, directly lies on the CM shoulders as he has not asked for the conspiracy charge of 120-B against LK Advani, under the FIR No.198/92, to be taken again by CBI, despite opposing the CBI’s move in the parliament. The state Advocate General is responsible for drafting the policy decision and PK Jain has only sworn as the deponent of the counter-affidavit and after all this goof up- RC Verma has been sent to pavilion!

No action has been taken against PK Jain nor any attempt or effort or any application has been moved to the Chief Justice in this respect yet.

Mr Yadav while addressing a press conference has maintained that his Advocate General was kept in the dark as the AG was on his pilgrimage to Vaishno Devi when the affidavit was being filed in the Supreme Court! CM has also ordered that all future affidavits filed will have to be shown to him first before being filed in court. He further assured that his policy on the entire Babri Masjid issue has had not a single inch of change in it.

Who actually drafted the counter-affidavit is still unknown. Perhaps, Mohd Azam Khan, who has been associated with the Babri Masjid movement from day one and who is right now Urban Development and Parliamentary Affairs Minister has rightly accused of "some conspiracy" behind the counter-affidavit But, Mohd Azam Khan has refused to elaborate on the conspirators and even warned that such conspiracies will be attempted again.

Will the people of the state ever know them [conspirators] and will this latest goof-up be the wake up call for Mulayam Singh Yadav? Is the expulsion of RC Verma a mere eyewash and has been done to stop some mouth wagging. Well, sooner or later the people of the state will know about it.

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