Why SC decision to restore charges of Criminal Conspiracy against Advani and Others is Unjust?

The SC on Wednesday restored the charges of Criminal Conspiracy against senior BJP leaders L.K. Advani, M.M. Joshi and Uma Bharti in 1992 Demolition of Babri Masjid Case. It is indeed curious to understand the grounds on which the SC decided to overturn the decision of the Trials Court which was later, also upheld by the Allahabad High court. This becomes all the more interesting when we remind ourselves that at no point of time, either during the trial at Rae Bareily court or in its revision petition, CBI ever stated that there was an offence of criminal conspiracy against L.K. Advani and others.

Excerpt 1 from Judgement Copy

Let us now understand what amounts to a criminal conspiracy. The conspiracy essentially requires that, between two people or more, there must be a common intention and a common design to achieve the intended offence. As testified repeatedly by Advani and others, there never was an intention or a design to demolish the Masjid. In fact, the supplementary charge sheet filed by CBI against the ones who planned the demolition contained only 8 names of the 21 accused. Advani and others weren’t a part of this list of 8, which, by CBI’s own admission, confirms there was no common design as far as Advani and others were concerned. 

Excerpt 2 from the Judgement Copy

Now, if the intention is under the scanner, you can only establish the evidence for criminal conspiracy by circumstantial evidences. Evidence, in its strict definition, requires no interpretation. In other words, evidence cannot be subjective. So when the Allahabad High court quoted the lack of circumstantial evidence as the reason for dropping charges of criminal conspiracy, it must be taken at its face value, that, indeed there was no circumstantial evidence.

That said, the offence of criminal conspiracy exists in the very agreement between two or more persons to commit a criminal offence. Referring to the principles framed by the SC to govern charges of criminal conspiracy, even if there was a wish, mere wish in itself cannot be called as an agreement. It has to be in the form of word or deed. On the basis for establishing the evidence for agreement of criminal conspiracy, The Evidence Act of 1872, on the collection of evidence for conspiracy, clearly says, “There should be prima facie evidence regarding the involvement of two or more people in forming an agreement” , The lack of which, again questions the SC decision.

Also, When an offence is committed by different people towards a common design, assuming that there was one, but acting independently (because it was a huge mob, it is impossible that there was coordination), it cannot be said that there was necessarily a conspiracy. Another way to levy the charges of conspiracy is by drawing inferences from acts perpetrated by the conspirator at the scene of offence. Advani and others were never seen to be leading or encouraging the mob, by word or deed, to charge  and demolish the masjid.

These arguments naturally lead us to what SC considers to be a criminal conspiracy. During the case of State of Tamil Nadu vs. Nalini, concerning Rajiv Gandhi’s murder, Nalini’s voluntary confession of conspiring the murder led SC to frame the principles governing the law of conspiracy, to help cases where voluntary confessions don’t surface. Here is an excerpt of these principles:

1) Offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or a legal act by illegal means.- There is no evidence of agreement.

2) Not only the intention, there has to be an agreement to carry out the object of the intention, which is an offence. Only entertaining a wish is not sufficient to convict a person for criminal conspiracy though it may be an evil wish.

3) Acts subsequent to the achieving of objects of conspiracy may tend to prove that a particular accused was a party to the conspiracy.– In the aftermath, Advani and others always conducted themselves in a responsible and law-abiding manner.

4) Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy, but also the agreement. – Again, there is neither evidence, nor witness to such an agreement.

5) In absence of evidence that accused had even knowledge of any conspiracy, the mere association with the main accused would not make him member of conspiracy because agreement is a sine qua non of offence of conspiracy.

Looking at the above arguments, one may not be entirely wrong in questioning this decision, along with sanctity and credibility of the nation’s highest judicial institution.