The Hindu, November 25, 2009
by Siddharth Varadarajan
There is a phrase in Hindustani — khoda pahad, nikli chuhiya — to describe the underwhelming outcome of an exercise over which one has laboured long and hard.
Justice M.S. Liberhan worked diligently for 17 years through more than 40 extensions of his initial three-month brief to produce a 1029-page report full of facts and details about the events and circumstances leading up to the demolition of the Babri Masjid in 1992. His conclusion is unsurprising but unequivocal and bold: the demolition was part of a well-thought out plan — a “joint common enterprise” — hatched by the top leadership of the Rashtriya Swayam Sevak Sangh, the Vishwa Hindu Parishad, the Shiv Sena and the Bharatiya Janata Party, the last organisation correctly described as a “front organisation” of the RSS.
Unfortunately, the recommendations which emerge out of his daring excavations are so mousy that they bear no resemblance whatsoever to the forthright conclusions which precede them. After having indicted 68 individuals for bringing the country to the brink of communal disaster, Mr. Liberhan doesn’t call for the filing of charges against those that have escaped being arraigned so far in the demolition case, nor does he speak of expedited criminal proceedings.
This is surprising given his repeated use of the phrase “joint common enterprise” to describe the conspiracy. Ever since the 1999 Tadic judgment of the International Criminal Tribunal for the former Yugoslavia, international criminal law has developed the notion of ascribing liability for mass crimes to those who might not have been direct participants but who willingly facilitated the commission of criminal acts through the positions they occupied in the hierarchy of the organisation involved.
Had Mr. Liberhan developed the concept in his recommendations and pushed for an end to the pervasive impunity enjoyed by politicians, police officers and bureaucrats, he would have earned the gratitude of the nation. But he has done nothing of the sort. Other than calling for the separation of religion and politics and making some other tepid suggestions, the report steers clear of recommending either short-term steps to ensure justice in the demolition case or long-term measures to protect the country from a repeat of the tragedy.
Perhaps the fault lies not so much with Mr. Liberhan and his commission but with the inability of the police and justice delivery system in India to reach the same conclusions he did and then to act upon them with speed and impartiality.
In Chapter 10, Justice Liberhan makes a definitive statement about culpability: “It stood established before me beyond reasonable doubt that the Joint Common Enterprise was a preplanned act for demolition under the immediate leadership of Vinay Katiyar, Paramhans Ramchander Dass, Ashok Singhal, Champat Rai, Swami Chinmayanand, S.C. Dixit, B.P. Singhal and Acharya Giriraj. They were the local leaders on the spot and the executors of the plan conceived by the RSS. The other leaders [L.K. Advani, Murli Manohar Joshi and others] cannot be absolved of their vicarious liability and were willing collaborators playing the roles assigned to them by the RSS. Their informed support for the Ayodhya campaign, fortified by their physical presence during the grand finale of the prolonged campaign is irrefutably established.
“I conclude that the RSS, BJP, VHP, Shiv Sena and their office bearers as named in this report, in connivance with Kalyan Singh, the then Chief Minister of U.P., entered into a Joint Common Enterprise for the purpose of demolition of the disputed structure and the construction of the temple in its place. They practiced intermingling of religion with politics as a well thought out act to subvert democracy.”
The demolition of the mosque was the “zenith of a concerted and well laid-out plan which encompasses an entire pantheon of religious, political and mob leadership.” Justice Liberhan noted, correctly, 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.” Mr. Advani and Mr. Joshi may have been part of the second tier in this joint common enterprise but they cannot escape political or legal liability despite the “plausible deniability” the sangh parivar gave them as a shield.
Wealth of material
Seventeen years later, many of the criminals involved in this joint common enterprise are dead. But many flourished, secure in the knowledge that they were above the law. No matter how much the country will now vilify Mr. Liberhan for the little mouse he has produced by way of recommendations, the body of his report provides a wealth of material that any investigating agency worth its name ought to be able to spin a water-tight conspiracy case out of it. Many of the dramatis personae who had memory lapses before the commission would find it harder to resist the interrogation techniques our police force now excels in, including narco analysis.
If the UPA government is serious, it can do no better than to file supplementary chargesheets and fast-track the Babri Masjid demolition case so that justice is finally done.
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