Daily Times

An Indian court in Lucknow on September 30, has acquitted top leaders of the governing BJP of any wrongdoing in the destruction by Hindu mobs of a historic mosque in 1992.Former Deputy Prime Minister LK Advani, and BJP leaders MM Joshi and Uma Bharti, had denied charges of inciting extremists to demolish the 16th Century Babri mosque in the town of Ayodhya. This very very controversial verdict comes nearly a year after another historic judgment over the site of the mosque. Last year, India’s apex court in its most controversial verdict, gave the land to Hindus thereby, apparently ending a decades-long legal battle but substantially the said verdict fawned the flame of Hindu fanaticism in India. It gave Muslims another plot of land in Ayodhya on which to construct a mosque.

According to the said judgment, the court found that all 32 accused, which included former deputy prime minister LK Advani, are not guilty of spurring karsevaks-Hindu nationalists who sought to perform religious rituals at the site-into demolishing the 16th-century Muslim place of worship. The court found that members of the Vishwa Hindu Parishad, an affiliate of the right-wing RashtriyaSwayamsevakSangh, and politicians from the Bharatiya Janata Party were only trying to protect the structure because idols of Hindu god Ram were inside the mosque. Prominent BJP leader Atal Bihari Vajpayee addresses karsevaks in Lucknow, he said, “Ab bhajan, kirtankarnekeliyebaithnapadegaaurnukileepatthar par to koi baithnahisakta, zameenkosamtalkarnapadega.” (In order to offer prayers, karsewaks will have to sit on floor and how can someone sit on sharp stones. One will have to level the ground). This alluding speech provoked Hindu extremists to raze the Babri mosque.

It is evident from the current ruling that a culture of Kangaroo courts –reflecting sham legal proceedings is being promoted in India via a revanchist movement -spreading in its governmental function

The Hindu in its editorial says,” Throwing to the winds the Supreme Court’s observations on the demolition, the trial court has in effect given judicial legitimation to the ‘Ram Janmabhoomi movement’ by acquitting all those indicted for conspiracy to bring down the structure. Its conclusions are drastic and defy logic and fact. The court’s finding that the demolition was not planned in advance flies in the face of the entry of more than a hundred thousand volunteers into Ayodhya that day, armed with crowbars, spades, hoes and ropes and every implement needed to bring down a sturdy structure and clear the site”. This paper further adds, even allowing for the possibility that the judiciary is in close alignment with the executive, it is unacceptable to see a court going so far as to parrot the specious theory advanced by the demolition squad from the BJP-VHP-RSS family for years that the destruction was a “spontaneous act”. All those who went through that disgraceful phase in India’s political history know that the demolition was only the culmination of a revanchist movement”.

It is evident from the current ruling that a culture of Kangaroo courts –reflecting sham legal proceedings is being promoted in India via a revanchist movement -spreading in its governmental function. This system of judiciary is alarming for India’s future in that the role of the courts is being highly compromised with the dictates of justice and impartial discernment-a common feature of the Kangaroo court, which are set-up in order to give the impression of a fair legal process. In fact, they offer no impartial justice as the verdict, invariably to the detriment of the accused, is decided in advance. Such courts are associated with groups who have found a need to dispense a rough and ready form of justice but are, temporarily at least, outside the bounds of formal judicial processes.

Academically argued, the Constitution of India– unlike the USA– does not follow the doctrine of separation of powers, but it has been reiterated in many cases that the independence of the judiciary is a basic part of the constitution. Rest assured that for the judiciary to be independent and impartial to serve the constitutional goals, the Judges need to act fairly, reasonably, free of any fear and favour. The judiciary stands between the citizen and the State as a rampart against misuse or abuse of power by the executive. Therefore, it is a sine-qua- non for the judiciary to be free from executive pressure or influence that has been provided in various provisions of the Constitution. Without independence, impartiality cannot thrive. It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where a judge can work with an absolute commitment to the cause of justice and constitutional values of a state.

Nonetheless, the independence is not limited only from executive pressure or influence, but also from any other pressure and prejudices. It has many dimensions, the fearlessness of other power centres, economic or political. Needless to say, impartiality, independence, fairness and reasonableness in decision-making are the hallmarks of the judiciary. If “impartiality” is the soul of the judiciary, “independence” is its lifeblood. A P Shah, the former chief justice of Delhi High Court has currently observed, ”I speak here today of what I believe is one of the most troubling developments of our time: the decline of the Indian Supreme Court. As a former judge, at the very least I believe it is my duty to ring some warning bells. The political thinker, Edmund Burke, said that judges are trained so that they can detect misgovernment, and especially, “sniff the approach of tyranny in every political breeze”. This is the kind of court we need, but unfortunately this is not the court we have right now”.Yet in contrast to these set standards, the verdicts coming out one after each other as evidenced from the recent rulings– on the CAA, the imposition of curfew and internet closure in the occupied Kashmir-which clearly negate India’s secular character.

Seeing from the expanding narrative of the Hindu Right within the field of law, and on the ways in which the Hindu Right has sought to deploy a host of legal concepts and constitutional principles to advance its political manifesto, all this is tantamount to believe to be a highly significant advance in the Hindu Right’s efforts to infuse the constitutional principles of secularism and equality with meaning that is consistent with its vision of Hindutva: the recent Supreme Court of India’s judgments in the Hindutva cases. Undoubtedly, the Lucknow court’s verdict will strengthen the ideologues of Hindutva while sending a clear message to India’s minorities, particularly its Muslims that religious bigotry and violence tactics by the majority are condoned in modern India. Nonetheless, the post-Babri Masjid era ushers in Hindu-Muslim divide, and especially under the Narendra Modi reign, it is clear that the national narrative is being shaped by Savarkar and Golwalkar rather than Nehru and Gandhi.

The writer is an independent ‘IR’ researcher and international law analyst based in Pakistan