Liberhan Commission: A Critical Analysis (Economic & Political Weekly, January 23, 2010)

Reports by enquiry commissions into an event that the nation could have done without can, in the best of circumstances, be taken as the basis for remedial measures that the State could take to prevent a recurrence of such tragic events. By its very nature, such inquests by bodies set up under the Commissions of Inquiry Act, 1952 cannot be expected to be complete and over-arching. Notwithstanding the powers of such commissions to summon evidence and record them in written, oral and in any other form (as it is the case with any civil court while trying a case under the Code of Civil Procedure, 1908), the fact is that evidence recorded before commissions cannot be taken as they are in a criminal trial.

However, such proceedings before a commission can serve as a cue for the prosecution in the course of a trial. In this sense, there is a lot that can be drawn from the report of the Justice Liberhan Commission of Enquiry on the circumstances leading up to the demolition of the Babri Masjid on 6 December 1992. Justice M S Liberhan, then a sitting judge of the Punjab and Haryana High Court, was expected to ascertain the events, facts and circumstances that resulted in the demolition of the “disputed structure’’ (the way the government chose to describe the Babri Masjid while appointing the commission within 10 days of the demolition). The job was to have been completed before 16 March 1993. But then, justice Liberhan continued with his job even after he ceased to be a high court judge and submitted a report running into 999 pages (and some more in annexures) after 48 extensions.

While such extensions are indeed usual with commissions and Justice Liberhan could not have been treated differently, the fact that the judge took 17 years to arrive at certain conclusions, some of which are as commonplace as (1) that the demolition was pre-planned; (2) that the Bharatiya Janata Party (BJP) and its leaders (whom he identifies as pseudo-moderates) were also responsible for the demolition even while they were not party to the planning; (3) that the state government under Kalyan Singh had pulled out all stops to make the demolition possible; (4) that the union government was crippled without adequate intelligence reports on the issue and that its hands were tied waiting for the Supreme Court’s direction to act; and (5) that the special rapporteur of the apex court too had failed to present the correct picture.

The point is that none of these can be taken as providing any insight that could help the prosecution in pursuing the trial in the relevant cases that are now pending before the special courts in Lucknow and Rae Bareli.

Justice Liberhan’s recommendation, in this specific context, betrays a thorough lack of commitment. The report recommends enactment of “a special separate law providing for exemplary punishment for misuse of religion, caste, etc, for political gains or illicit acquisition of political or other power”. The presumption, in doing so, is that the existing Code of Criminal Procedure is incapable of ensuring the ends of justice. The report in the same section also recommends that “regional tribunals for ensuring swift prosecution and effective implementation of the law ought to be set up in the four corners of the country”. The government’s Action Taken Report (ATR) simply accepts this and adds that the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, which is only being drafted at the moment, contemplates provisions for setting up special courts.

Existing Provisions
It is strange that neither the learned judge nor the officers in the Ministry of Home Affairs found this inappropriate. Criminal jurisprudence prohibits retrospective application and hence any such law, even if enacted, will not be relevant to cases involving the Babri Masjid demolition. Moreover, the existing Code of Criminal Procedure contains sufficient provisions to ensure speedy trial by way of setting up special courts. The pending cases are indeed before such special courts. It was, after all, possible for the regime to complete the trial and ensure conviction in such cases as the assassination of Indira Gandhi (1984) and Rajiv Gandhi (1991) and also in such cases as the Mumbai blasts (1993) and the Coimbatore blasts (1998). In other words, the commission’s report as well as the ATR betray an inability to view the tragic incidents of 6 December 1992 from within the framework of the rule of the law.

It is possible, even with the codes in existence to ensure justice without delay. Section 407 of the Code of Criminal Procedure, 1973 provides for conducting a trial before the high court. In this case, it was possible (and it is possible even now) to have the cases pending before the special courts in Lucknow and Rae Bareli transferred to the Allahabad High Court and render justice. The ATR, instead, maintains that “steps will be taken to expedite the hearing of these cases” without bothering to explain as to why such steps were not taken in the 17 years that have gone by. It cannot be that the law, as it exists, does not allow any such measures. The government could have invoked Section 482 of the Cr PC to seek speedy disposal of the cases.

A specific reference to these in the report would have helped establish that while the BJP was guilty of the crime in December 1992, successive governments at the centre since then have done a shoddy job delaying the course of justice. It is in this context that one cannot contrast Justice Liberhan’s report with that of Justice B N Srikrishna. Justice Srikrishna’s report, apart from providing a sharp focus on the subject matter and making specific recommendations detailing the task before the civil administration and the police, was unsparing when it came to apportioning the blame on a cross section of the political establishment. For instance, even while making it clear that the Shiv Sena chief Bal Thackeray went about commanding the killer mobs and locating the immediate context for the December 1992-January 1993 carnage on the “celebration rallies” by the Hindutva parties “gloating over the demolition of the Babri Masjid”, the Srikrishna Commission report also pointed out that the “effete political leadership” was responsible as much for the death and destruction in Mumbai.

Justice Liberhan’s report, however, steers clear of any such meaningful exercise and presents a story in which all that went wrong in Ayodhya on 6 December 1992 was the fallout of the designs and activities (at various levels) by members of the Sangh parivar. And hence, the report pronounces the leaders of its various outfits as having been responsible for the tragic events at the primary and secondary levels.

Unlike Justice Srikrishna, whose report placed a lot of blame on the Congress leaders such as the then Maharashtra Chief Minister Sudhakar Rao Naik and Sharad Pawar, whose role as union defence minister at that time, was not above board, Justice Liberhan paints the Congress Party and the then Prime Minister P V Narasimha Rao as having been victims of a Sangh parivar conspiracy.

Blaming the Victims
The problems with the report do not stop there. Justice Liberhan takes things to far more absurd levels when he holds the organisations representing the concerns of the Muslim community and its leaders as responsible at the tertiary level for the demolition. Liberhan goes as far as to state,while the RSS, VHP, Shiv Sena and Bajrang Dal and the BJP brought the temple construction movement to the front burner and caused it to boil over, the fanatic Muslim leadership making the counter claim were either completely complacent and had no substantive or effective leadership or was simply incompetent in projecting their own lopsided counterview to the people throughout the half century leading up to the 6th of December 1992.

It is strange that a retired high court judge should even see the issue in Ayodhya as one that was to have been dealt with between two religious communities. This, incidentally, is one of the arguments peddled by those in the Sangh parivar; its leaders have also maintained that an agreement between the representatives of the two communities as one of the solutions. Justice Liberhan, even while holding the leaders of the Sangh parivar responsible for the demolition, unwittingly endorses their stated position in his report.
“Their (the Muslim leadership) feeble attempt” Justice Liberhan adds, “after 1983 to present a blinkered view of history were without researched substance and therefore possibly incapable of being believed’’.

The facts interestingly are to the contrary. There was evidence, based on historical and archaeological research, to establish that the claims by the Sangh parivar were unsubstantiated. It is strange that Justice Liberhan had examined some of those who participated in this effort (Irfan Habib, for instance) and yet arrived at such conclusion. The judge, however, reveals his mind elsewhere in his report. In paragraph 159.4 of his report, the judge makes a statement: “It is established that the events of and leading up to the 6th of December in the birthplace of the virtuous Lord Ram considered an incarnation of God and the ideal king, were tainted by a joint conspiratorial enterprise”.

In other words, the judge too is in agreement with the Sangh parivar that this was the place of Lord Ram’s birth. His only quarrel is that they conspired to demolish the mosque over there!

Bommai Judgment
There is indeed something cynical about all this. In a landmark judgment in the S R Bommai and others vs Union of India case, the Supreme Court had held the dismissal of the BJP-led governments in Madhya Pradesh, Rajasthan and Himachal Pradesh (in January 1993 in the immediate wake of the 6 December 1992 demolition and where it was established that these state governments aided the crime at Ayodhya) as valid. The substantial point that was made in that judgment, which holds to this day, is that the demolition of the mosque on 6 December 1992 was an affront to secularism, and since secularism was part of the basic structure of the Constitution, it was an attack on the Constitution. Justice Liberhan has proclaimed his abject ignorance of this by making out the dispute to be one between the Sangh parivar and the leadership of what he describes as the “fanatic Muslim leadership”.

And the judge goes on to preach to the Muslim community. He says: “Unfortunately a sizeable number of Indians still feel that the Muslims of India should be treated as a deprived class despite the centuries long Moghul-Muslim rule in India” (emphasis added). Justice Liberhan’s indiscretion does not stop here. His report goes on to say more on these lines: it is inexplicable why the people belonging to the same community which effectively ruled the country for centuries not too long ago should not endeavour, struggle, compete, thrive and succeed in all segments of national life like every other citizen of India, and without having to rely on their religious difference to seek special privileges.

All these observations can be found in the diction of any small time preacher of the Hindutva campaign. The demagogues of the Sangh parivar, in fact, were heard saying such things during their campaign that led to the demolition of the Babri Masjid on 6 December 1992. But Justice Liberhan considers these as the basis to “hold these organisations and individuals guilty at a tertiary level, for their failure to effectively champion the cause of their constituents, and of the neutrals and for their failure as an effective democratic opposition”. The report also blames the leadership of the Muslim community for having “failed to protect the life and property of the innocent masses who got caught up in the post facto riots”.

It is indeed inexplicable that a former high court judge believes in all this and even that the Muslim leaders were responsible, leave alone capable, for saving lives and property during a riot. Such conclusions certainly betray Justice Liberhan’s sympathies with the Sangh parivar’s line of thinking; that the religious minorities adapt and accept the majority’s way of life and thinking. It is difficult to see this as very different and distinct from the way M S Golwalkar sought to define nationalism and citizenship in independent India. It is also important to pose the fact that this is contrary to the definition of citizenship in the constitutional scheme of things. In specific terms, Justice Liberhan’s approach is at variance with the letter and spirit of Articles 26 to 29 as well as Articles 14, 19 and 21 of the Constitution.

The commission devotes an entire section to recommendations pertaining to religious and cultural sites: And in that the whole thrust is to set up a national commission consisting of experts in archaeology and history “to delve into the question of provenance of historical monuments, artifacts, etc, and their determination should be deemed to be definitive and final’’. This approach, again, is dangerous to say the least for it is rooted in a worldview that sees revanchism as a means to settle disputes. It is a fact that the Sangh parivar’s campaign in the Ayodhya issue had sought legitimacy in the argument that the destruction of the mosque there was necessary to right a wrong committed by Babar’s general Mir Baqi. Such a premise is essentially medieval and cannot have a place in a modern society.

On Reservation
And so are Justice Liberhan’s excursions when he comments on the efficacy of the members of the civil and police establishment; Justice Liberhan recommendations on areas that are extraneous to the brief or the terms of reference are another aspect that cannot be glossed over. For instance, Justice Liberhan avers to “the castesit or regional basis” while picking up men for posting civil servants at the helm of affairs and holds that this must be stopped. And the government, in its ATR, holds that this will be communicated to the Union Public Service Commission. This is yet another instance of how the commission has sought to undermine the Constitution and its premises. The bureaucracy turning unfaithful to the blue book in their enthusiasm to be seen on the side of the political establishment is a serious issue to be tackled (also covered in the recommendations) but then to hold the scheme of caste-based reservations in government jobs and posing merit as the casualty reflects a skewed way of thinking.

The judge blames the media for contributing to the frenzy. Some of this is true and has been recorded; that a section of the media ended up joining the Sangh parivar’s propaganda. But, his recommendation on how to deal with this is also dangerous. He calls for a statutory body to oversee the media and for a system where journalists are granted licences by this body with provisions for punishments like suspension of such licences in the event of professional misconduct. Such a measure will amount to institutionalising pre-censorship and curbing the media. Justice Liberhan’s mind seems to belong to those who govern in totalitarian systems and is inimical to democracy.

The Liberhan Commission also recommends enacting a new law enabling the Union government to take over the administration of a specified geographical area for restoring peace in the event the state government did not act. The Constitution does contain a provision of this kind. In the situation that prevailed during the couple of weeks before 6 December 1992, the then Union government could have resorted to Article 356 of the Constitution in Uttar Pradesh for sure. It was also possible to ensure that the constitutional scheme of things prevailed in the country by way of resorting to Article 352 (the provision to impose a national emergency) and thus invoke provisions of Articles 353, 354 and 358 of the Constitution.

Protecting the Congress
It cannot be the case that Justice Liberhan is unaware of these provisions. It is just that the judge, for reasons that are too obvious given the time he had chosen to finally deliver his report, did not want to apportion any part of the blame for the demolition of the mosque upon the Congress Party and the then Prime Minister P V Narasimha Rao. He even decided to repeat what Rao had to say then: That the central government was betrayed by Uttar Pradesh Chief Minister Kalyan Singh! The judge has also admitted without doubt the claim that the central intelligence agencies too were crippled without adequate information!

It is sad that the Liberhan Commission, even while referring to 1983, as a marker, in the Ayodhya trajectory, leaves out such important facts such as the context in which the Babri Masjid premises were unlocked in February 1986 and the preponderant view that it was not merely a decision by the officers of the subordinate judiciary at Faizabad as it may appear.

In the same way, Justice Liberhan, dealing with the telecast of such serials like the “Ramayana” on national television as having played a role in leading up to the demolition, dismisses such thinking as part of “farfetched fantastic theories’’ and records that he will refuse to comment on that further. Well, there has been a lot of research and writings on this to establish that it is not just a fantasy and that there is some realistic basis to argue that the telecast of the serial did contribute to the spread of the movement. But then, Justice Liberhan’s agenda seems to have been to absolve the Congress and its leaders of all the blame. Thus the cynical plans and steps taken by the Congress government in Uttar Pradesh even while the campaign for demolition was reaching its crescendo.

Justice Liberhan, does not even refer to the other important date and event in the Ayodhya trajectory: 9 November 1989. On that day, Rajiv Gandhi, then prime minister, allowed the VHP to perform shilanyas for the Ram temple on the disputed land that was dubiously declared, by the Uttar Pradesh government, as undisputed. The then union home minister, Buta Singh, was sent to Ayodhya with a specific brief to supervise the shilanyas. Another round of communal violence followed the shilanyas and this clearly vitiated the atmosphere during the general elections. The Ayodhya controversy, causing the death of several hundred people and finally the demolition of the Babri Masjid and the political changes in that context were all the outcome of this strategy.

It is another matter that this new strategy, intended to re-invent the Congress(I), ensured the fall of the party and its decimation from most parts of the Hindi-speaking region.

Commission and Omission
Justice Liberhan says that the inertia that was built up by the rabble-rousing organs of the Sangh parivar and inflammatory leaders was focused not at tugging at the emotional heartstrings of the common man and building a consensus for a temple at Ayodhya. Rather the emphasis was more on stunning the thinking masses into inaction and suppressing any voices of sanity or moderation that might arise.

By glossing over the simple fact that the Congress(I) too had played ball and the union government as well as that in Uttar Pradesh (led by the same party) too participated in that game, the judge is guilty of substantive omission. And in doing so, Justice Liberhan too has contributed his mite to stun the thinking masses into inaction. The ATR by the government too makes this point.

As for those who committed the criminal act on 6 December 1992, Justice Liberhan has this to say: “The hands that tore down the disputed structure and shredded the very fabric of society belonged to the common man… The remorse which is their constant shadow for the reminder of their mortal lives is their highest punishment”. The nation did not have to wait for 17 years and does not have to hold on to a penal code and other laws and expend a lot of its resources on these if Justice Liberhan’s prescriptions are to be held as gospel.

Notes

Here are a few important markers that Justice Liberhan has glossed over.

While an application under Section 482 of the Cr PC will be appropriate for ordering speedy (and even time bound) disposal of the trial in a particular case, Section 483 of the code imposes a duty upon the high courts’ to exercise superintendence over the courts of judicial magistrates subordinate to them as to ensure that there is an expeditious and proper disposal of cases by such magistrates

The Justice Srikrishna Commission, in fact, commissioned a study by experts from the Tata Institute of Social Sciences, Mumbai, on the socio-economic, demographic and political factors that could be seen as immediate causes for the riots. The commission’s report endorses such findings that the pronounced shift in the political discourse from themes of parliamentary democracy, the merits of public and private sector and such others to communalism as being the long-term cause that prepared the grounds for such violence as were witnessed in Mumbai in the aftermath of 6 December 1992


It is necessary to note here that though the Bommai case and the judgment are popularly remembered for the severe restrictions that the apex court laid against indiscriminate dismissal of state governments and the abuse of Article 356 of the Constitution, the bench also decided in that case on the dismissal of the BJP governments in Madhya Pradesh, Rajasthan and Himachal Pradesh. In the course of that, the bench also extensively discussed the concept of secularism and it being a part of the basic structure of the Constitution. In doing so, the bench held the dismissal of the three BJP governments valid. Justice A M Ahmadi and Justice B P Jeevan Reddy had dealt with the aspect of secularism and the Constitution in elaborate detail and the seven other judges in the bench explicitly endorsed their views in the judgment.

On 1 February 1986, K M Pandey, district judge, Faizabad, hearing a petition by Umesh Pandey, ordered opening of the locks to the Hindus for worship and that the Muslims were not to be let into the premises or offer prayers. Advocate Pande’s plea before a munsiff court in Faizabad on 23 January 1986 that the court allow unrestricted worship in the Ram Janmabhoomi, whose gates were locked at that time, was disposed of on grounds that the leading suit to this case was still pending before the Allahabad High Court. Advocate Pande then went on appeal before the Faizabad district court on 31 January 1986 and district judge K M Pande ordered unrestricted rights for the petitioner and others to offer worship at the Babri Masjid. Devotees were allowed, even otherwise, to enter into the compound and up to an enclosure of grills; there were two gates fixed to the grills and one of them, gate ‘O’ was open for the priests to enter and conduct pujas. The other gate remained locked since January 1951. The petition before the district judge was that this restriction be removed. The district judge’s order will have to be seen in context. The 31 January 1986 plea by advocate Pande before the district judge K M Pandey was to have the locks removed and judge K M Pandey, with ample cooperation coming from the district magistrate I K Pande and police chief Karam Veer Singh, ordered that the locks be opened. City magistrate Sabhajit Shukla, on whom the order was served, did not wait for a moment. Within minutes, Shukla rushed to the premises and hammered open the locks at gate ‘P’ to let in the flow of devotees! That no one waited to prefer an appeal against the district judge’s order is significant. The Congress(I) government in Uttar Pradesh, headed at that time by Vir Bahadur Singh, had instructed the concerned civil servants (district magistrate I K Pande and police chief Karam Veer Singh), to convince the district judge K M Pandey that the locks could be broken open. And city magistrate Sabhajit Shukla too was under instruction to implement the Judge’s order without losing time.

As late as on 21 June 1989, N D Tiwari, then chief minister of Uttar Pradesh, announced construction of a Ram-katha Park in Ayodhya at a cost of Rs 15 crore. Tiwari made this announcement while inaugurating the Ram-ki-Pauri at Ayodhya, constructed at a cost of Rs 8.5 crore. It was in this specific context that the BJP too resolved to join the Ramjanambhoomi campaign. In its national executive session on June 1989, at Palampur in Himachal Pradesh, the party resolved to join the Vishwa Hindu Parishad’s campaign to liberate the Ramjanmabhoomi. The Palampur resolution read: “The sentiments of the people must be respected and Ram Janmasthan handed over to the Hindus – if possible through a negotiated settlement, or else by legislation. Litigation certainly is no answer”. The importance of this resolution and the fact that the BJP jumped into the campaign only as late as in June 1989 is not to say that the party was innocent until then. The BJP had taken up an aggressive Hindutwa position since its plenary session at Delhi on 9-11 May 1986.

Vir Bahadur Singh, then chief minister of Uttar Pradesh, instructed his officers to act in a way to hasten the process of opening the locks in February 1986 only on instructions from the Congress(I) high command. A new political strategy was being devised to entrench the party in the Hindi-speaking parts of the country (reconciled as it was to the reality that the party was in no position to reverse the rising tide of regional parties such as the TDP, the AGP, the Akali Dal, the National Conference, the DMK or the AIADMK and also the fact that the old social alliance of the upper castes, the scheduled castes and the Muslims that sustained the party in this region was now cracking up). And hence it was necessary to re-invent the party with a different social alliance. The experience from Assam, where the AGP could sweep the polls despite its anti--Muslim stance seemed to impress Rajiv Gandhi’s computer boys. Towards this end, the Rajiv Gandhi dispensation orchestrated the 1 February 1986 order by the district judge, K M Pandey.