Judges often say that a matter has “shocked the conscience of the court” to invoke its extraordinary powers and initiate tough action. Perhaps this expression arises from the idea that justice is impartial and blind. To reiterate this, the statue of the Lady of Justice that sits atop court buildings around the world is blindfolded and balanced.
But this does not imply cold objectivity. The constitutional idea of justice is primarily that the weak must be protected from the powerful. It is a shackle to power. Therefore, when something is so repulsive that it shocks the conscience of the courts, judges are expected to remove the proverbial blindfold and act, even if it means acting partially, on behalf of the vulnerable and marginalized.
However, if blindness involves refusing to acknowledge that an injustice is being perpetrated, what is shocking is the conscience of the nation. This impact is not momentary. It opens an abyss into which public faith falls that the judiciary will firmly maintain the balance against power.
Deafening jubilation
On Wednesday, when the verdict in the Babri Masjid demolition case was delivered after an indefensible 28-year delay, the reputation of India’s judiciary dug a deeper hole for itself. A special court of the Central Bureau of Investigation acquitted the 32 people accused in the case and ruled out any criminal conspiracy due to the lack of conclusive evidence against them. Bharatiya Janata Party leaders Lal Krishna Advani, Murli Manohar Joshi, Kalyan Singh and Uma Bharti were among those charged with criminal conspiracy and other charges.
The mourners were silent. But the jubilation of the victors was deafening. In the court decree, they found a vindication of the communal fires they had lit to clear their way to power, even as the flames consumed thousands of lives over decades.
However, Wednesday’s decision was only the culmination of the events that the Supreme Court set in motion when it delivered its verdict in November on who owned the disputed plot in Ayodhya. While the nation dissects the special injunction from the Central Bureau of Investigation for its absurdity and audacity, it is worth noting that the country’s highest court did not come out of the dispute with great success.
Bold absolution
A mosque was in Ayodhya for centuries. On a Sunday afternoon in December 1992, he was brought down by thousands of thugs with hoes and hammers in hand. Leaders of the Bharatiya Janata Party and other Sangh Parivar organizations such as the Vishwa Hindu Parishad sat on the stage erected near the mosque. They witnessed the crime that they themselves were perpetrating. In the run-up to the shameful event, many of these leaders had delivered inflammatory speeches calling for a Ram temple to be built on the site occupied by the mosque.
The demolition was a bloody wound inflicted on the pluralistic soul of India. It was a rallying cry calling for millions of Indian Muslims to be relegated to the status of secondary citizens. The myth and constructed history fed strange ideas of victimization from the majority to provide a spurious ideological backing for the feast of blood. The demolition sparked unrest in many parts of the country, claiming hundreds of innocent lives.
The demolition was recorded in newspapers and on video. Documentaries were made about the events of that day. A commission of inquiry produced a damning report on the conspiracy to destroy the mosque and the planning that took place.
But 28 years later, the IWC court found this evidence worthless. The newspaper reports, the court said, were not acceptable as evidence because the originals had not been produced. The photographs could not be accepted because there were no negatives, despite the fact that the person who took the images declared from the witness stand that he had taken them.
The video, the court said, was not acceptable as the footage was unclear and had not been produced in sealed envelopes.
A place of worship was torn down to fulfill a political agenda. But for the court, the accused BJP leaders did nothing to hurt the spirit of another group or the integrity of the nation.
Instead, he conveniently blamed faceless and lawless elements for tearing down the structure. Convenient because he couldn’t jail thousands of people whose faces he didn’t know.
The court did not recall that the demolition itself had challenged the institutional legitimacy of the judiciary. In 1992, the BJP was in government in Uttar Pradesh. The Chief Minister, Kalyan Singh, promised the Supreme Court that he would protect the Babri Masjid and then drop it. He was charged as a conspirator. But to the IWC court, the defendants’ statements seemed to suggest that they had tried to prevent lawless mobs from turning the mosque into rubble.
The trial has helped the politics of erasure. To use contemporary jargon, this is gaslighting of the worst order. The sentence has legitimized constant attempts to obscure what happened that day in December 1992.
But it is not only the acquittals in the criminal case that cemented this legitimation of one of the most abhorrent chapters in India. In this, the blame falls in part on the Supreme Court.
Supreme Court and Ayodhya
It is true that the Supreme Court in November described the demolition of the Babri Masjid as a “heinous violation of the rule of law”.
It is also true that in 2017 the Supreme Court reinstated the conspiracy charges in the case and then set a strict deadline for the trial to be completed. If not for this, it could have taken another 28 years for the system to finish the case with such strong political compulsions.
However, while doing all this, the Supreme Court also decided to hand over the disputed site in Ayodhya to the same people who made up the demolition squad. The people in the lawsuit representing Ram Lalla, the deity of Ayodhya, were members of the same Sangh Parivar organizations that vigorously carried out a political campaign to ensure the destruction of the mosque. They gave many hate speech in the run-up to the destruction of the Babri Masjid, as noted by scholar AG Noorani in his book on demolition. LK Advani’s rath yatra, the most famous of the accused, left a trail of blood in its wake.
Beyond this, we still don’t know who wrote the Supreme Court verdict. All five judges on the stand put their names on the ruling. They collectively appropriated it. But court rulings always tell the public who was the author of the decision that other judges agreed to. The fact that no judge on the bench wanted to be the author made the mark of this movement open to various interpretations.
It was not just Wednesday’s verdict in the criminal case that in spirit legitimized the destruction of the Babri Masjid by acquitting all the defendants. The decision to hand over the disputed site to the Hindu side, which was essentially the Sangh Parivar, also played a role in this process. The assumption that the civil and criminal sides of the disputes were actually separate has collapsed. To the lay observer, this seems like mere legal fiction.
Assuming the IWC ultimately appeals the decision, it is important that the judiciary credibly acquits itself by ensuring justice, although that is an increasingly slim prospect given the current political context.
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