Supreme Court invokes constitutional power to transfer Babri Masjid case
The apex court on Wednesday revived the criminal conspiracy charge against BJP leaders LK Advani, Murli Manohar Joshi, Uma Bharti and nine others in the Babri mosque demolition case.india Updated: Apr 19, 2017 22:38 IST
“Let justice be done, though the heavens fall”, the Supreme Court said on Wednesday quoting a Latin phrase to invoke its extraordinary constitutional authority to transfer the trial of a case against the VVIP accused from Rae Bareli court to a Lucknow court for joint trial of two sets of cases arising out of the demolition of the Babri Masjid.
The apex court brushed aside the contention of senior BJP leaders L K Advani and M M Joshi that invocation of Article 142 of the Constitution “to do complete justice” to the parties before it, would scuttle their fundamental rights.
The top court said this power exists with it as the judgement delivered by it will finally end the litigation.
A bench of Justices P C Ghose and R F Nariman said it was “without substance” the submission that exercise of Article 142 would scuttle the fundamental rights of the individuals.
“Almost 25 years have gone and yet we are solemnly reminded that respondent nos. 4 and 5’s (Advani and Joshi) fundamental rights should not be curtailed by any order passed under Article 142,” the bench said.
It said the high court has been given certain powers of transfer under the criminal law but it does not detract the apex court from using the constitutional power under Article 142 to achieve the same end to do complete justice in the matter before it.
Article 142 deals with enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.
The bench said that Article 142(1) has no counterpart in the Government of India Act, 1935 and it does not have any counterpart in any other Constitution world over.
“The Latin maxim fiat ‘justitia ruat caelum’ is what first comes to mind on a reading of Article 142 Let justice be done though the heavens fall. This Article gives a very wide power to do complete justice to the parties before the court, a power which exists in the Supreme Court because the judgement delivered by it will finally end the litigation between the parties,” it said.
“It is, in fact, an Article that turns one of the maxims of equity on its head, namely, that equity follows the law,” the bench said.
Elaborating the ambit of Article 142, the bench said that while moulding relief, the court can go to the extent of relaxing the application of law to the parties or exempting altogether the parties from the rigours of the law in view of the peculiar facts and circumstances of the case.
“This being so, it is clear that this court has the power, nay, the duty to do complete justice in a case when found necessary,” it said.
Advani’s counsel had vehemently demanded that his trial should not be transferred from a magisterial court in Rae Bareli to a CBI court in Lucknow as it would take away his right to one appeal.
He had said the case at Rae Bareli involving Advani and other senior BJP leaders was being tried by a first class magistrate and the first appeal lies with the sessions court. While in the Lucknow case, it is being tried by a sessions court and the appeal lies with the high court.
This submission, however, did not cut much ice with the apex court which observed that the crimes which shake the secular fabric of the Constitution of India have allegedly been committed almost 25 years ago.
“The accused persons have not been brought to book largely because of the conduct of the CBI in not pursuing the prosecution of the alleged offenders in a joint trial, and because of technical defects which were easily curable, but which were not cured by the State Government (Uttar Pradesh),” the bench said.
Additional Solicitor General Neeraj Kishan Kaul, who appeared for the CBI, and senior advocate Kapil Sibal, who was representing intervenor one Haji Mahboob Ahmad (since dead), had favoured joint trial saying the cases arising out of the conspiracy of the same transaction have to be tried together.