On August 15, 2022, when the 11 convicts in the brutal rape (and murder) case of Bilkis Bano were granted an early release from prison, it exposed the deteriorating state of Indian democracy and justice. It should have been a move difficult if not impossible to rationalise, yet as has been the case so often, this regime has made a virtue of justifying and doing the unjustifiable. The convicted criminals were not only released but also garlanded and feted by supporters, adding to the already considerable concerns over the rapidly eroding social morality of Indian society. Historically, the judiciary was meant to have functioned as a safeguard against the excesses of the political executive in an ideologically communal or authoritarian regime. Its record here has been erratic at best; most notoriously in the ADM Jabalpur case during the Emergency, when the court ruled in favour of the state being able to detain citizens without the appropriate legal procedures, it set a dangerous precedent, effectively suspending the writ of Habeas Corpus and rendering ineffective Article 21 of the Constitution, which guaranteed the right to life and liberty. This judgement was of course later overruled by the Supreme Court itself, but it is an important example of how even the foremost legal authority in the land cannot necessarily be relied on to uphold the most basic of fundamental rights enshrined in the constitution. When the Supreme Court reversed the decision to commute the sentences of these criminals on January 8, 2024, it was hailed as an act of judicial dominance over political expediency, a feature that is meant to be a key element of a functional democracy.
Former vice-president Hamid Ansari stated that under the current administration, India's status as a functional democracy is debatable. Political scientists like Christophe Jaffrelot have asserted that the current Indian state is an “electoral authoritarian” one. As a result, all democratic institutions — from the courts to the media and beyond — have been subjugated by the state and manipulated to represent authoritarian assertion and propagate a communal narrative, which is meticulously and systematically constructed under an external façade of electoral legitimacy. Thus, it is essential to evaluate this "judicial victory" through the relevant political and ideological contexts.
The anti-Muslim violence of 2002 Gujarat had a pivotal role in boosting the Prime Minister's political career as the then newly appointed Chief Minister of the state, and cemented his long term in that office as the undisputed leader of the BJP in the “laboratory of Hindutva”. This bloody episode has left an indelible mark on the present ruling party's particular brand of Hindu nationalism and consequently the governments it has formed both at the state level and the centre. The politics surrounding the public memory of this incident is carefully manufactured to suit the ruling party. Constant reminders of this event are an expression of brute authority that serves two purposes. Firstly, it feeds the party’s supporters’ need for expressive hate, anger, a sense of victory, and power while instilling fear in the persecuted minority. Secondly, it legitimises the use of violence as a form of politics.
Both aspects have severely negative implications for Indian democracy. The first leads to the creation of what Ambedkar referred to as a communal rather a political majority, where he argued that while the latter majority could be made and unmade by the struggles of competing ideologies and political parties, the former, as one that is “born and not made," is based on an ascriptive identity that is static and forms a permanent majority. In a communally charged society, such a permanent majority can only be created and sustained by a consistently antagonistic and repressive relationship with the minority. The political project of Hindutva is to create such a permanent majority only. The second aspect relates to the increasing way public displays of violence and anger have become normalised and accepted as a legitimate political language in the quotidian political landscape of India. The ability to mobilise angry and violent crowds has become an ever-more powerful currency in political transactions. Too often, the stronger and more violent the crowd, the stronger the perceived political argument. This fatally undermines one of the main cornerstones of liberal democracy, where agonistic differences between even bitter rival groups and ideologies are meant to be resolved through open debate and electoral competition rather than the threat of, or practice of, actual violence.
The release of the criminals a few months before the 2022 Gujarat elections and their subsequent appearance at BJP election campaign events, sharing the stage with its leaders, demonstrated not only the underlying support for their heinous crimes, but has to be seen as part of a broad pattern of normalising a majoritarian mindset. The BJP, being in a strong position, was expected to win the state of Gujarat but surprised with the margin of victory, leaving hardly any effective Opposition in the state. The role that the commuting of the sentences of the convicted rapists plays in the voting behaviour of the public must be considered in achieving this electoral success.
It's crucial to understand the necessity of upholding an abstract democratic façade in order to provide legitimacy and support for this decision. According to Thomas Carothers, a semi-electoral authoritarian regime is one that exhibits outward signs of a liberal democracy, such as a multi-party system, regular elections, a functioning judiciary, and a formal division between these institutions and the executive. At the same time, under such a system, the ruling party has complete control over financial resources and tools that help construct narrative and rhetoric, including the media, and institutions that are critical to the functioning of a liberal democratic system. One of these important institutions is the judiciary, and over the last decade, it is difficult not to observe that the court has tended to uphold the government's position in pivotal cases such as: abolishment of Article 370, the Babri Masjid demolition case and demonetisation etc.; occasional rulings that go against the government, such as the granting of bail (after much delay) to Siddique Kappan (or Kafeel Khan) and reversal of the remission of the convicts in this case, serve nothing more than to show the outward signs of a functioning institution while allowing the broader project of establishing an electorally authoritarian regime to proceed unchecked. The reluctance of the Supreme Court to challenge the executive over egregious injustices such as the detention of Umar Khalid and endlessly deferring the bail hearings makes nonsense of the precedent established by the court itself that “bail is the norm; jail is the exception."
While the insistence of the Supreme Court that the convicted criminals in the Bilkis Bano case be returned to jail and that their early release was nothing less than an abuse of power by the executive, is a significant victory both at the symbolic and individual level- both for Bilkis Bano and for the victims of sexual violence - which should not be understated or diminished; it cannot distract from the fact that the edifices of justice while not destroyed, are crumbling and in bad need of repair. In the absence of the rule of law, lawlessness predominates, especially governmental lawlessness which is the most dangerous kind. Such a rule of law is an indispensable feature of a functioning democracy. This rule of law is not yet fully absent in India, yet it is also not fully present — a feature of its semi-electoral authoritarian regime under the present government.
Conrad Barwa is a senior research analyst at a private think-tank, and a senior research associate at the Birmingham Business School. Abhinandan Pandey is a post-graduate researcher in History and is a published Urdu poet
