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Brief of the points made by Shri Arun Jaitley, Leader of Opposition (Rajya Sabha)
while participating in the debate on
Justice Liberhan Commission of Inquiry report in the Rajya Sabha
 
The Justice Liberhan Commission of Inquiry has now admittedly proved to be an exercise in futility. The title suit with regard to the disputed structure is pending before the Allahabad High Court. The criminal trials with regard to the purported incidents of 6th December, 1992 are pending before the Special Judge, Lucknow and Faizabad.  The civil trial will decide the title issues and the criminal trial will address the culpability, if any. The Liberhan Commission was appointed by a Government in panic. This report, as is apparent from the Action Taken Report, is unimplementable. Several questions arise in the context of this report.
1)    Why did it take 17 years for a Commission of Inquiry to formulate its recommendations and findings? Did the retired judge use the opportunity of heading this Commission to perpetuate his self-employment?
 2)    The manner and the leak of the report is as dubious as the report itself. The Home Minister says solemnly before the House that he or his Ministry did not leak the report. As the only other copies of the report are available either with the Judge or with de-facto drafts person of the report, the source of the leak has to be investigated. 
3)    Is the Report, as is apparent from the ATR, an unimplementable document?  An analysis of the ATR reveals that except for lauding the political opinion expressed by the judge and agreeing with him, the other recommendations only relate to a proposal to legislate the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, a subject over which the Central Government has no power to legislate or refer the matters to appropriate authorities like the UPSC, Election Commission and other statutory authorities.   
Who has drafted the report ?

    The report is hardly a document capable of being drafted by a retired High Court judge. The language is not judicial. The judge has unquestionably entered the political thicket. He has expressed an opinion on a variety of political subjects completely outside the Terms of Reference and outside  the scope of a judicial training. The apprehension that the report is drafted by  a person other than the judge himself is strengthened by the observation at page  999 where the judge thanks one Shri Harpreet Singh Giani and credits him in helping the judge  in (a) analyzing the evidence (b) coming to conclusions  (c) editing the report (d) adding and modifying the language (e) adding and modifying the ideas  and (f) clearing the mess created by others.
 
    Admittedly, it was Shri Giani who has analyzed the evidence, come to conclusions, edited the report, modified the language, added and modified the ideas. The judge seems only to have done the rest, if anything remained. The Liberhan – Giani report is the first Example of ‘Judgment Outsourcing’.

Does the report conclusively answer the key questions referred to the Commission ?

    A Commission of Inquiry has to give a finding on basis of evidence. There has to be a link between the evidence produced and the conclusions reached.  The learned judge admits in the report that there was no evidence of conspiracy or pre-planning lead by any party. (Refer page 15 para 7.4)
“No evidence was lead or information provided to the Commission with respect to the conspiracy or preplanning or the joint common enterprise, by any of these counsels”.
Page 775 para 130.5 –
“No documentary or direct evidence is possible in a conspiracy of this manner, nor unimpeachable and firm evidence of some action of planning of demolition available.”
Page 782 para 130.2
”Home Secretary, Godbole stated that there was no information of planning and as such it could not be inferred that there was a conspiracy of the Congress and BJP for demolition; this could not be accepted on the face of it particularly in the absence of any specific circumstances leading to such an inference.” 
Page 992 para 178.34
“Neither the police nor the investigation team of the commission, despite the prolonged process, were able to identify any witness, nor produced any witness who could identify any of the demolishers, or lead any other evidence against suspects.  Suspects were not even identified. Even after the unprecedented publicity throughout the long spell of inquiry nobody has come forward to advance the case or identify persons who physically carried out the demolition or the ones who plotted its demolition.”  
Page 724 para 121.7
“In totality, it becomes obvious that some leaders were consciously kept out of the operational area or planning in order to protect them and preserve their secular credentials for later political use”.
      After coming to this conclusion the judge fails to identify the leaders who were unaware of the design of the so-called planners. And still the judge goes on to blame the entire leadership of BJP and RSS for being aware and privy to the conspiracy.
 
At page 994 para 178.37 the Commission observes that “Important leaders of political parties, icons of movements, organizers of the movement continuously issued statements from time to time in relation to the conspiracy of demolition but no affidavit was filed before the Commission by them.”  

    In the White Paper published by the Govt. of India in 1993, which was placed before the Commission there was not even an averment of pre-planning or conspiracy involving senior leaders or organizations.  

    It is a settled law that the level of proof a Commission of Inquiry has to accept   in fixing culpability has to be beyond reasonable doubt.  In a case of no evidence,  the Commission has come to the conclusion that the demolition was pre-planned and has named a large number of people, including those who were in no way connected with the incident of 6th December, 1992.  

    I am constrained to say that this Commission is a text book illustration of what a Commission should not be. A Junior judge of the Punjab & Haryana High Court is picked up to head the Commission.  The only credentials of the judge at the time of his appointment was his proximity to the then Law Minister.  It has frequently been said that there are two categories of judges – “those who know the law and those who know the Law Minister” This judge fell in the latter category. His knowledge of the Queen’s language was somewhat limited. He therefore needed the ghost writer to analyse the evidence, come to conclusions, modify the language and ideas.   He used the 17 years tenure of the Commission to perpetuate an employment for himself. He probably wanted to use the conclusions and findings as an application for future employment. The report of the Commission would itself demonstrate that this truth investigator had turned into a political pundit.   

Does this Report go beyond its terms and errs on basic facts?
    
    The Liberhan Commission is a compilation of howlers and mistakes as is evident from the following :  
 
1)    Page 282 of the Report gives a compilation of 8 names of leaders of Ayodhya movement whom no role could be attributed to except participating in negotiations. The list includes two alleged supporters of the movement who are well known historians viz. Prof. R.S. Sharma and Prof. D. N. Jha.  Both are Left leaning historians who presented the case of Babri Masjid Action Committee in the dialogue.  The list of those who participated in the movement (P 270) includes Additional DGP Intelligence, Col. B.S. Zaidi (BMAC representative) Devraha Baba, Jagdambika Pal etc.  Read the absurd list of Muslim Leaders on Page 279. This will only prove that the report suffers from factual hallucinations.  The Commission also gets the date of Gandhiji’s assassination wrong (page 69). He even regards Veer Savarkar as the founder of the RSS and Dr. Hedgewar as his successor (page 562)
2)    On page 566 the Commission in para 85.14 goes beyond the scope of inquiry and accuses – “Shri Din Dayal Upadhyay impliedly and by his conduct agreed with MA Jinnah’s theory that Hindus and Muslims were two separate nations”. He then quotes from Deen Dayal Upadhyay to the effect that “Muslims are not a minority community; they are a nation.  They must have their independent land and their own State.”  He therefore compares the BJP philosophy to that of Mr. Jinnah.  This subject matter was privately obtained by the Commission.  The fundamental mistake he made was that the entire paragraph was never said by Shri Deen Dayal Upadhyay. This is a quote from M.A. Jinnah which he puts in the mouth of Deen Dayal Upadhyay and then compares his philosophy with that of Jinnah.  This is precisely what happens to a judge with no understanding of politics who tries to don the role of a political pundit.
3)    The judge has a strong bias on certain issues. On page 556 he indicts political leadership for greed. “for their individual aggrandizement through repression, misguidance, acquiring power through mass means and improper reliance on philosophies  such as Hindutva, Mandal, son of soil etc.”
4)    The bias of the judge is further apparent in his recommendations where on page 970 para 173.8 and 173.9 he calls for a review of the recruitment procedure of the bureaucracy.  He wants only excellence in certain areas to be a criteria for recruitment.  He wants the postings to be done only on merit and not on casteist or regional basis. Who authorized this judge to carry on a tirade against social justice and Mandal Commission which has been unanimously accepted in this country? The Government has done a dis-service to this nation by mentioning in its ATR that the UPSC is examining changes in the recruitment process of officers and this recommendation was also communicated to the UPSC.
5)    The Commission uses the report to indict the entire leadership of this country.  –
Pg 540 paras 79.3, 79.4 and para 79.5
“The loss of political neutrality and the convenience with which justification can be found for every action has rendered all objectives of peaceful civilized society as enunciated by intellectuals, leaders, philosophers, thinkers since ancient times, obliterated…..
The law – common or constitutional, morals, ethics, epics and everything else is being examined in the scales of politically desirable results.  It is immaterial whether those results are legitimate or healthy for democratic governance. Every one is out to become politician rather than a statesman.
The politician has become the epitome of the proverbial rags-to-riches story. 
The common Indian has formed the firm belief already that the ills that face us can be traced to the political leadership and can be cured by a voluntary reform in the political parties and their leadership itself.”  
On Gulzari Lal Nanda and Devraha Baba
 
    The judge chooses to condemn whoever he desires to and that too without evidence.  There is no mention of the former Prime Minister, Shri Gulzari Lal Nanda in evidence.  Yet the judge choses to refer to him by saying –“Prof. Rajinder Singh, RSS leader, Dau Dayal Khanna, Gulzari Lal Nanda, the die-hard Hindus, in connivance with people with similar thoughts, started conceiving and exploiting the local dispute at a national level, may be for their selfish political needs or for achieving their old theory of Hindu Rashtra.” (Page 336)  The Commission has no concern for truth.  He is willing to go by giving irresponsible statements.  On page 427 para 69.22 he says “open threats by exhorting the dacoits to take to arms for Ram temple were made by Ashok Singhal, Devrah Baba, Harish bhai etc.” The Judge fixes responsibility on Devrah baba for leading the country to communal discord on page 958and 959.  This is notwithstanding the fact that Devrah Baba, a highly revered person had died in the year 1990, much prior to the alleged incident.
 
    The report makes an interesting fairy tale. The Commission indicts the District Judge of Faizbad for directing the opening of the locks of the disputed site in 1986 (page 87). The Commission is convinced that the judge was inspired by a monkey to pass the judicial order since the monkey always accompanied Mr. Pandey, the District Judge of Faizabad.  

The Evidence against Mr. L.K. Advani

    The key question was that whether Mr. L.K. Advani and other senior BJP leaders made repeated requests to a small section of Kar Sewaks who had climbed up to the disputed structures, not to demolish it  and come down. The Commission considers these appeals made by Shri L.K. Advani, Murli Manohar Joshi, Ashok Singhal, Vijay Raje Scindia HV Sheshadari etc. (page 255) as having been made either in earnest or for media’s benefit.  The Commission contrives a curious logic that an appeal was made to the kar sewaks to come down from the domes but no appeal was made not to enter the Garb Grih. Therefore the hidden intention was to demolish the structure. The judge conveniently forgets the evidence given to the CBI in relation to the charge sheet by a lady IPS officer deputed as Mr. L.K. Advani’s PSO that he requested Uma Bharati to go to the structure to persuade the kar sewaks to come down.  In fact Shri Advani insisted on going himself but could not go because the security officers including the PSO refused to take him there in order to avoid a possible conflict with the kar sewaks who had climbed on to the dome. Voluminous evidence of witnesses who have testified to the same effect of the appeals of senior leaders has been completely ignored by the Commission.  While ignoring this evidence of the Lady Officer on page 507 with regard to another questions he says – “There is no reason to disbelieve her on these facts since as the security officer attached to LK Advani she had unrestricted access to all the happenings…..”  

Did the Commission have a bias against the temple being built at the Ram Janamasthan ?

    The Commission at page 23 of the report accepts Ayodhya as the birth place of the Hindu god Ram and therefore a holy city. He accepts at page 63 that – “yet namaz was not offered at the disputed structure since 1934”. He does not contest the finding of 1885 by a British judge FEA Chalmers in a civil appeal “It is most unfortunate that a masjid should have been built on a land sacredly held by hindus and as that occurred 356 years ago it is too late to remedy the grievance. (Page 97) “The judge accepts on page 561 that “the history books produced before Commission as well as the White Paper issued by the Govt.of India and BJP and also contentions by various counsels are unanimous that in 1528, the Emperor Babar ordered Mir Baqi, his Commander to erect a mosque at Ayodhya.”  And yet his bias is apparent at page 547 where he says – “The demand for construction of the temple deprived the Hindu religion of its secular, multi-religious and multicultural credentials of the well reputed Hindu philosophy and the thoughts generally prevalent.” The judge ostensibly makes this entire narration of circumstances as leading up to 6th December, 1992.  If admittedly Ayodhya is perceived to be the birth place of Lord Ram, if Mir Baqi converted the temple into a mosque, if for over 500 years a struggle for a temple was on, how could the demand for restoration of temple be anti- secular and the demand for maintaining forcible occupation of a mosque be secular.  It is precisely this perversion in the concept of secularism that the Ayodhya movement was aimed at exposing. The truth investigator turned political pundit suffered from the same perversion.
 
Malafide error relating to Shri Atal Behari Vajpayee

    The Commission was more loyal than the king.  The Commission has committed a fundamental error in relation to its finding with regard to Shri Atal Bihari Vajpayee.  Little did the Commission realize that Shri Vajpayee is a tall national leader of proven credibility.  The Commission of Inquiry Act in section 8B clearly mentions that if the Commission is of the opinion that the conduct of a person is required to be inquired into or that his reputation is likely to be affected, the Commission shall give to that person a reasonable opportunity of being heard.  
 
    The Commission on page 958 gives a list of persons including Shri Vajpayee and Shri Devrah Baba who are culpable for creating communal discord. There are at least 30 people out of 68 to whom admittedly no notice was given under section 8B. While the Commission on page 942 states that leaders like LK Advani, Shri A.B. Vajpayee and Shri Murli Manohar Joshi would have known the designs of the Sangh parivar, they are pseudo moderates. Obviously in trying to indict Mr. Vajpayee the Commission went for an overkill little realizing that Mr. Vajpayee had a high credibility.  In that process the Commission shot itself in the foot and hurt its own credibility.  Was it any part of the Commission’s job to find a political response to the BJP’s use of Phrase ‘pseudo Secular’?  It is not only in Shri Vajpayee’s case, the commission has chosen to indict several leaders including many of the Muslim community without issuing a Section 8B notice to them.  The report in so far as it hurts reputation of people without a Section 8B Notice is non-est.

On the Role of Central Govt.  

The Commission was obviously kind to its appointing authority. The burden of its argument is that since the central government did not receive a report from the Governor whose judgement was badly flawed, the Central government was helpless in the matter of invoking Article 356. The Commission did not issue a notice to the Governor.  It indicts the Governor but without a notice under section 8B.  Shri PV Narasimha Rao authored a book titled ‘Ayodhya 6th December, 1992.’  The book has been published after his demise.  At page 170 of the book, Shri Narasimha Rao reproduced the letter/report of the Governor wherein he categorically stated that ‘the possibility of demolition of the structure could not be ruled out.’  Obviously, the Commission wanted to be more charitable to his appointing authority, Shri Narasimha Rao.  He even concealed the existence of a report.  Even otherwise the argument of the Commission that the existence of a report was a condition precedent for invoking Article 356 by the Central Government is specious.  The Commission completely ignored the words “or otherwise” in Article 356.  

Strictures against Constitutional authorities
    
The Judge presiding over Commission is a bitter man.  He was extremely keen to be elevated to the Supreme Court.  Despite his keenness, members of the Supreme Court collegium did not consider it appropriate to recommend his name.  This was his last opportunity to get back at the Supreme Court.  He departs from the principle of inter institutional courtesy and indicts the Governor of UP, High Court of UP, an observer of Supreme Court and even the Supreme Court itself.  At page 935 the Commission opines   --
“For instance, the intransigent stance of the High Court of Uttar Pradesh, the obdurate attitude of the Governor, the inexplicable irresponsibility of the Supreme Court’s observer and the short-sightedness of the Supreme Court itself are fascinating and complex stories, the depths of which I must not plumb.”
The Commission is unaware of the basic courtesies and constitutional restraints imposed upon senior constitutional functionaries. The Commission ignores the requirement of section 8B and decides to indict superior constitutional authorities even without a notice.   

Who were present on 6th December, 1992 ?
    
    The Commission records the presence of every person in Ayodhya on 6.12.1992 (page 743). Prominent amongst those the Commission names who were admittedly not present.  Balasaheb Thakre who was in Mumbai, Kalyan Singh, Chief Minister, UP who was in Lucnow, Rajinder Gupta, Uma Nath Singh,Lalji Tandon, Brahm Dutt Dwivedi ministers in UP Govt. who were in  Lucknow, Kusha bhau Thakre, S.S. Bhandari, Sikander Bakht  who were in Delhi and Shri Prabhat Kumar Chief Secretary UP who was in Lucknow.  Where did the Commission get all this erroneous facts from. The Commission never bagged this factual narration and conclusions on any evidence but got it from some extraneous source.  

How  the Commission and the Government procured evidence ?
    
    There is a Central government witness – a journalist named Raman Kirpal.  He had purportedly deposed before the Commission and the Commission has relied on his affidavit and evidence. In 29 November, 2009 issue of the weekly magazine  ‘OPEN’  Raman Kirpal has written an article titled “My Crippled Testimony”. Shri KIrpal’s article amongst others states “ The CBI officials gave me a date for deposition in New Delhi. I reached there right on time. They showed me an affidavit and asked me to sign………  During the cross examination I was asked to reply in “Yes’ or ‘no’. The format was so tight   you could not explain anything.  For instance, I was asked whether BJP ‘s LK Advani gave any speech at the dias asking the Kar Sewaks to demolish. I said ‘no’ but………. The lawyer interrogating me immediately shut me up… just reply in ‘yes’ or ‘no’ he said………… The tight format of the cross examination and my status as CGW 24 undermined several things which should have put the Central government of PV Narasimha Rao in a spot….. What surprises me that the Commission rescues the Central Government in its conclusions it says “The Central Government was crippled by the failure of intelligence agencies to provide an analysis of the situation. …..  
 
This is my truth as a reporter.  My affidavit as CGW 24 still stands but it is a crippled truth. There was much more that I could have wanted to say……..”. Did this Commission function as a Kangaroo court?

Recommendations of the Commission on subjects beyond its jurisdiction.   

(a)    The Commission has recommended (page 966) that “the next logical conclusion must therefore be that the government which is formed on the premise of religion or has religion on its agenda can be barred.” This is not constitutionally permissible.  This is a new jurisprudence espoused by the Commission. How can a government be barred?
(b)    The Commission has recommended that there must be a body constituted to look into the working of the Constitution. Perhaps the Commission was blissfully unaware of the fact that the Committee headed by Justice Venkatchaliah has already given a detailed report to the Government. The Commission at page 970 recommends a review of the Recruitment policy of the government into the civil service. He wants merit alone to be the criteria and not a caste or regional basis. Read in the context of the Commission’s earlier recommendation on Mandal Commission it is clear that the Commission suffers from caste bias. The Commission has recommended (page 971) that civil servants should be barred from holding office of profit after retirement. It is indeed a paradoxical recommendation from a judge who retired long ago and has enjoyed 48 extensions recommends no retired civil servant should be given any post retirement assignment. The Commission has gone into the question of Centre State relations (page 976) AND RECOMMENDED THAT NO State government can claim that it acts only for the persons or people within the boundary of the State and discriminate against others.  While not disagreeing with the Commission on this, the question was not within the jurisdiction of the Commission. Was he dealing with Ayodhya incident or going into larger issue - the question of Centre State relation.  Similarly the Commission recommends (page 976) party affiliations must come to an end the moment a legislator is elected.   The Commission now wants the Tenth Schedule of the Constitution prohibiting defections to be repealed.  Was this within the terms of reference of the Commission?
(c)    The Commission obviously dislikes the media.  (page 980 ).  The Commission recommends that there must be a permanent authority to hear complaints against “mischievous journalists”.  He wants a licensing regime back not in the industry but for joining the profession of journalism.
(d)    The Commission at page 979 states as under:-
“It is therefore my recommendation that a statutory national commission be composed of acknowledged experts to   delve into the questions of  the provenance of historical monuments, artifacts etc. and their determination should be deemed to be definitive and final.”
 
The word provenance means -- “the history of the ownership of the object specially when demanded or authenticated”. The Oxford dictionary of difficult words defines provenance as a place of origin or the earliest known history of something. Let this test recommended by Justice Liberhan be applied to the disputed structure at Ayodhya where already a report of the ASI exists indicating the existence of a temple before 1528.  The Government in its ATR has rightly said in para 6.6 that a special Commission is not required for the said purpose as the ASI is already undertaking this mandate. The Allahabad High Court had asked the ASI to examine the site and the recovered stones from the erstwhile structure and submit to the High Court its expert opinion. The ASI in the year 2003 submitted its report to the Allahabad High Court where it concludes on basis of entire evidence.  “Now viewing in totality and taking into account the archaeological evidence of a massive structure just below he disputed structure and evidence of continuity in structural phases from the tenth century onwards upto the construction of the disputed structure along with the yield of stone and decorated bricks as well as mutilated sculpture of divine couple and carved architectural members including foliage patterns, amalaka, kapotapali doorjamb with semi-circular pilaster, broken octagonal shaft of black schist pillar, lotus moif, circular shrine having pranala (waterchute) in the north fifty pillar bases in association of the huge structure, are indicative of remains which are distinctive features found associated with the temples of north India.”  
     This report was preceded by a Ground penetrating Radar Survey (GPRS) which also came to same conclusions.
Did a temple exist at the site prior to 1528 ?
 
    The Commission has categorically given an opinion that Ayodhya   is perceived as the birth place of Lord Rama and that Mir Baqi constructed a mosque at the disputed site in 1528.  The crucial question is what is the historical character of the site in question.  Admittedly, the site has great religious and cultural significance to our civilization and nation.  Overwhelming evidence exists about the existence of a temple at the birth place of Lord Rama at Ayodhya.  This evidence is in the form of archaeological evidence, GPRS evidence and accounts of various travelers who contemporaneously wrote their accounts.
 
    ………. The universally revered Sikh Guru, Guru Nanak Dev visited Ayodhya along with his associate ‘Mardana’.  Contemporaneous Sikh literature finds a reference to the Guru’s communication to Mardana.  Bhai Bala wali janam Sakhi also has a detailed reference to this visit.  The visit took place between 1508 and 1510.  The eighth successor of Guru Nanak Dev’s eldest son Lakhmi Chand  Ji Baba Sukhi Ram Bedi in his works has referred to Guru Nanak Dev’s darshan of Ram Janamasthan.
 
    The historical sketch of the Fayabad in Zila Fayabad refers to the existence of the Janamasthan at Ayodhya.  It categorically records that at the janamasthan Emperor Babar built a mosque in 1528.  

    The Earlier Travels in India written by William Foster refers to Ayodhya where the ruins of Ram Chander acknowledged as an Indian God were found.
 
    The Gazetteer of Awadh refers to the Janamasthan as the place where Ram Chander was born.
 
    The Geography of Hindustan written by Father Jose Tieffn-Thacer    Is still available in French.  A copy of it was obtained from France and got translated into English under directions of the Court. The said travel refers to Ayodhya where a temple had been constructed on elevated bank of the river. It then refers to a debate as to whether it was demolished and converted into a mosque by Aurangzeb and then corrected to say that others believed that it was actually constructed by Babar.
 
    There have been several struggles in the past 500 years for the restoration of the Janamasthan. The existence of a mosque built after desecration of the temple has never been accepted by the Hindus. The past 500 years have witnessed repeated struggles for rights of the Hindus at the Janamasthan.
 
    In the later part of the 19th century the Nihangs had occupied the structure for a reasonable long period on the premise that Guru Nanak Dev had performed his worship at the site. In 1934 the Hindus were fined by the British Government for some damage caused to the structure during an agitation. There are judicial orders dating back to 1885 in relation to the legal and judicial dispute. 
 
    The principal question is – What was the original character of this structure?  Unquestionably, the original character was a temple.  It was no ordinary temple.  It was a temple built at the place believed to be the Janamasthan of Lord Ram.  No religious denomination can ever accept a conquest of such a sacred place.  The historical, archaeological and GPRS evidence is entirely against the historical vandalism of 1528.  The next 500 years have seen agitation for recapturing and litigation over the issue.  Since 1934 no namaz has been performed and puja goes on regularly.
 
    The ability of Indian society at dispute settlement is at stake. The judicial institutions have been unable to decide the issue for decades.  The ideal dispute resolution is through negotiations.
 
    A fair secular society requires equality of all.  A secular order is not irreligious. It is not anti-religion.  It is respect for all religions. Protection of legitimate rights of the minorities is unquestionably a test of a secular society. At the same time the majority cannot live for centuries with a feeling of reverse discrimination. The history of the past 500 years has shown that the majority has been denied its right to build a historical temple at its most revered place.  The Home Minister has framed the wrong question that it is a choice between inclusiveness and divisiveness.  Does your inclusiveness exclude the religious aspiration of the majority for the sake of vote bank politics. We reject your ‘Vote bank inclusiveness’ as we reject the LIberhan report.  We stand for  “Justice for all, with neither discrimination nor reverse discrimination”.

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