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Is the Indian Judiciary Independent Anymore?

15 Oct 2020
By Grant Wyeth
The now destroyed Babri Masjid mosque, Faizabad, India

The acquittal of senior BJP leaders on charges of criminal conspiracy over the destruction of the Babri mosque in 1992 is not just a legal victory for the party, but a sign that India’s institutions can no longer restrain it. All pretexts of an independent judiciary may well be dropped.

In early August, Indian Prime Minister Narendra Modi laid the foundation stone for a temple to the Hindu deity Ram in the town of Ayodhya, situated in the populous northern state of Uttar Pradesh. This ceremony was the symbolic culmination of an almost four-decade long political project by Modi’s Bharatiya Janata Party (BJP) and its affiliate organisations, collectively known as the Sangh Parivar, to fundamentally alter the character of the Indian state, replacing India’s previous multi-religious doctrine with a state that instead places a muscular Hindu identity at its core.

The site where this temple will be built previously housed a 16th century mosque, known as the Babri Masjid, named after the Mughal emperor, Babur. In the early 1980s the Sangh Parivar constructed a myth that this mosque was built on the very spot where Ram – the central figure of the Hindu epic Ramayana – had been born. This myth became the organising political narrative of the BJP, and as I wrote previously for Australian Outlook, it has projected the party from obscurity to its current status as India’s dominant political force.

As a party that is instinctively suspicious of India’s constitution, the BJP’s political ascension has come via actively placing itself in conflict with the country’s norms and laws, and riding the controversy this has generated for its electoral gain. The defining event of the party’s tactic was a rally in 1992 that BJP and the Sangh Parivar’s paramilitary wing, the Rashtriya Swayamsevak Sangh (RSS), held in Ayodhya outside the Babri Masjid. Around 150,000 people had gathered in the town, listening to speeches by senior BJP leaders, before a mob stormed the mosque and reduced it to rubble. An ensuing riot killed around 2000 people.

In the days after the mosque’s destruction, a commission of inquiry  known as the Liberhan Commission was established to investigate the incident. The commission took 17 years to gather all the relevant evidence, and the findings it reached were damning. Its 1029-page report stated that the leadership of the BJP and its affiliates were both ideologically and practically responsible for the mosque’s destruction. The report highlighted the financial involvement of the Sangh Parivar which, the report asserted, categorically pointed to the planning of the mosque’s destruction, stating that the event was “neither spontaneous nor voluntary.” It concluded that, “These leaders saw the ‘Ayodhya Issue’ as their road to success and sped down this highway, mindless of the casualties they scattered about.”

After years of legal wrangling, in 2017, a special court set up by the Central Bureau of Investigation (CBI) charged a number of senior BJP figures, as well as other members of the wider Sangh Parivar, with criminal conspiracy over the mosque’s destruction. With the overwhelming evidence gathered by the Liberhan Commission, the case against these actors should have been straightforward. However, the political climate in the country has been significantly altered since the BJP was reelected in 2019. This was an election that confirmed their political dominance and loosened their self-restraint. Institutions like the CBI that should have been independent from the government of the day have instead found themselves under pressures that have compromised this independence – if not by direct interference, then by the threat of it, or threat of something even worse.

So instead, the special court decided in late September to acquit the 32 defendants who were still alive (49 were originally charged), stating that the mosque’s destruction was not premeditated and directed by party officials. The decision was less based on the compelling evidence of the event, and more on the CBI’s understanding of which way the wind now blows in India. The BJP, with both its political and paramilitary muscle, would be unwilling to accept any other verdict, and therefore in the CBI’s eyes, there was no point in delivering one.

This verdict of the CBI can be seen as a companion to the 2019 decision by the Supreme Court regarding the plot of land where the mosque once stood. The court made a farcical ruling that attempted to honour the existing constitutional order while simultaneously submitting itself to the political pressure it was under from the BJP.  It ruled that the destruction of the mosque was “an egregious violation of the rule of law,” but the plot of land should be awarded to a Hindu trust in order to construct a temple to Ram anyway. The Supreme Court had placed one foot in the old India, one foot in the new.

However, the CBI’s ruling on criminal culpability for the mosque’s destruction went further. It didn’t just acquit the Sangh Paviar’s early-90s leadership of any wrongdoing, but it sought to rewrite history to construct a new narrative that would try to remove the event’s taint on the party. Instead of the Liberhan Commission’s assertion that the Sangh Paviar’s leadership had deliberately organised the destruction of the mosque, Judge Surendra Kumar Yadav disingenuously stated that these actors “actually tried to control and pacify the mob.” Yadav further obfuscated the event by claiming that the video and audio of the mosque’s destruction could not be authenticated, and therefore events could not be verified.

Officially, the issue of the destruction of the Babri mosque has now been settled. The BJP and its affiliates have been politically rewarded by riding the issue to successive majority governments with no effective national opposition force to temper them, and any legal repercussions for their behaviour have been successfully avoided. The Indian courts have consolidated this triumph by not just ignoring the behaviour of the BJP, but by converting themselves into instruments of its power.

This has always been the goal of the party. Rather than simply seeking to obtain political power democratically – that is, the opportunity to govern within a constitutional framework – the party has instead sought to demonstrate raw power – the ability to exercise their will without restraints or consequences. Independent institutions like courts are of no intrinsic value to parties like the BJP as binding themselves to such principles would limit their ability to act freely to achieve their ideological aims. Now emboldened by having avoided any consequences for their most serious crime, the path is cleared for the BJP to further do as it pleases.

Grant Wyeth is a researcher at the Asia Institute, University of Melbourne, and a columnist for The Diplomat.

This article is published under a Creative Commons Licence and may be republished with attribution.