The court could have used Article 142 to prohibit any further claims against other places of worship.
IT WAS never a legal dispute. It was a political dispute that became a social contestation that then landed up in the courts as a dispute over a plot of land. Yes, it was a legal dispute even in the 1880s but it became the Ram Janmabhoomi movement of the 1980s because it was all about ascendant Hinduism seeking to place its imprint on a constitutional republic.
Yet, ever since the Supreme Court in 1994 overruled the Central government’s decision to let all previous suits abate, we knew that whatever the political attempts to settle the dispute, it was the courts — ultimately the Supreme Court — that would have the last say.
The essence of the judgement
THE Supreme Court then had the opportunity to deliver a landmark judgement which, even if mindful of the social forces swirling around it, would uphold constitutional principles and affirm that India is a country where all citizens, irrespective of their faith, are equal citizens. What the Supreme Court has instead done is given a legal imprimatur to the triumph of the political and social forces that claim to speak on behalf of Hinduism.
In less than 48 hours the judgement has been analysed in a threadbare fashion and its weak foundations have already been revealed (For instance, in this paper, ‘Unimpeded right in outer courtyard wins whole site for Hindus’, by K Venkataramanan, November 10, 2019).
The essence of the 1,045-page judgement is that the Hindu devotees had complete right to worship in the outer courtyard of the Babri Masjid since 1858, while the Muslims’ right to pray in the inner courtyard has been contested. Therefore, possession of the entire disputed plot goes to the Hindus, for a temple to be built by a trust constituted by the government, no less.
You do not have to be a legal person to be embarrassed on reading such a ruling. True, the ruling does in its own way try to achieve a balance and argues that, ‘the relief [should be] moulded in a manner which preserves the constitutional values of justice, fraternity, human dignity and the equality of religious belief.’ Towards this end, the verdict says that there is no evidence that the Babri Masjid had been built by destroying a temple, that the events of 1934, 1949 and 1992 ‘constitute a serious violation of the law’ and awards the Muslims five acres of land (almost double, mind you, of the size of the disputed plot) elsewhere in Ayodhya to build a mosque.
Dignity irrespective of faith
BUT is this in keeping with constitutional values and does it ensure human dignity to all citizens, irrespective of their faith, as the Supreme Court said it must do?
At a time when the institutions of electoral democracy have been considerably weakened and when the opposition is too weak to keep a powerful executive in check, you would expect the Supreme Court in particular to be the final custodian of constitutional values. But courts admittedly do not function in a vacuum; when there is a powerful majority in parliament they are usually circumspect.
One would expect that in such a circumscribed setting the Supreme Court would make an extra effort to deliver an imaginative verdict that provides dignity and protection even if within a compromise resolution of a title suit. Yet, even as the court in its verdict draws on Article 142 of the Constitution, which gives it the power to deliver complete justice, it does so for minor reasons and not to give relief to the Muslim community.
If the Supreme Court was going to decide to give possession of the disputed land to a trust for constructing a Ram temple, it could have used this particular article of the constitution to draw a line under any other disputes over ancient mosques. That could have spared the country future communal mobilisations in Kashi and Mathura and affirmed to the Muslims that at least in the future, no vandalism of places of worship would be tolerated. This was, as reported in the press, a core clause of the settlement that most of the parties to the dispute had signed on under the Supreme Court-appointed mediation panel.
The court refused to go down that path. Ominously, a few Hindu political groups have already said that there will not be any agitation for those sites, but only ‘for now’.
The Supreme Court then did not turn the title suit into an opportunity and draw on Article 142 of the Constitution to deliver a verdict that would have shown its refusal to tolerate assaults on constitutional values. It instead stuck to the title suit and there too interpreted the claims in a fashion.
For the citizen, the message of the verdict may well be that in the end lawlessness can sometimes succeed. It may take time, it may mean lives lost but ultimately if you maintain pressure and you raise tensions for a long period and politically mobilise around a demand, you will get what you want. How do we now prevent such a message from going out?
The Ram Janmabhoomi movement was at its most violent three decades ago. A weariness had since set in and many on all sides just wished that the Masjid-Mandir issue could be put behind us. The larger project of denying that people of all faiths enjoy equal rights under the Constitution is now nearing completion. The Ram Janmabhoomi was merely the late 20th century instrument for realising this project. It has served its purpose, whatever may be said of ‘egregious violations’ of the law and court orders.
Contrary to the court’s desire to give relief in the Ayodhya verdict in a manner that preserves constitutional values, the citizen could be forgiven for feeling that the opposite has happened.
Impact on the republic
THE Supreme Court of the 1970s is now remembered for two contrasting judgements: the Kesavananda Bharati ruling (1973) when it decreed that parliament could not alter the basic structure of the Constitution and the ADM Jabalpur ruling (1976) when the court said that during a national Emergency the citizen had no recourse to her fundamental rights. The first has given us protection against assaults on the constitution and the second has shown what should never again happen. Fifty years from now how will we remember the Ayodhya verdict? What impact is it going to have on the republic?
The Hindu.com November 12. C Rammanohar Reddy is editor of The India Forum.
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