The announcement of judgment went off peacefully without a single incident of communal tension or violence speaks volume about the administrative capacity of Indian state and astuteness of political class; however, one has to concede that this ‘peace’ has rested on the magnanimity of a section of the majoritarian community with ‘its move forward approach’ and ‘fear-stricken tolerance’ of the Muslim community
There are three crucial questions that has arisen following the November 9, 2019, Supreme Court verdict on clutches of writ petitions challenging the 2010 Allahabad High Court judgment on “land title of disputed structure of 2.77 acre” belonging to Ram Janmabhoomi-Babri Masjid (hereby Ayodhya matter). One, whether the unanimous decision of the SC on the Ayodhya matter strictly meets the test of legal jurisprudence, (i.e, whether verdict is based purely on the balance of evidence, which was produced in the court), constitutional morality and justice? Second, whether the judgment interfered with the matter of “faith/religious belief” of people and thus compromised the principle of secular governance? Third, whether judgment, given the historicity of emotional contestation attached with the Ayodhya matter spanning over more than 400 years, has succeeded in securing “social peace” and in healing the “wounded self” of both Hindu and Muslim communities?
The critics have slammed the judgment on all three indexes and concluded that the SC verdict has legalised the “rule of majoritarianism” and paved the way for the construction of Ram Mandir despite the fact that the weight of evidence was in favour of Muslim party. However such conclusions are simplistic and extreme reading of the judgment arising primarily from the current political context of Hindutava. A reality of specific political context is one thing; however demonstrating that judgment has primarily flowed from this political reality is another thing. The critics fall short on the second option.
I believe that the judgment meets the test of all three criterions. The strength of judgment lies in its unanimity and its inclusive approach that combines the judicious balance of law, constitutional practice of secularism, legal history of case, constitutional notion of justice, practical wisdom and Indian tradition of providing context specific solution with its inherent flexibility and ambiguity required to manage its enormous social diversities. It is misnomer to think that judgment is based on a priori consideration of majoritarian faith and has ignored the legal scrutiny of evidences.
What has been found puzzling is that while on the one hand (a) the court recognised the damage to the Babri mosque in 1934, placement of idols of Ram Lalla in 1949 in the Sanctum sanctorum of the mosque and its eventual demolition in 1992 as grave violation of law and rejected the contention of Hindu party and ASI’s archaeological evidence that the mosque was built by destroying a temple, though the judgment mentioned that the mosque was built on the ruins of a temple-like structure; on the other (b) it handed over the possession of entire disputed structure of 2.77 acre to Bhagwan Sri Ram Lalla Virajman (BSRV). However for the court, (a) and (b) are not inter related; they are separate matter to be investigated separately. In this specific judgment, the SC was seized with matter of “title deeds of land” only. Its judgment has no implication on the ongoing criminal trials against people who were charged with vandalising and conspiracy to destroy Babri mosque.
While awarding the possession of entire disputed land to BSRV, the SC relied upon historically evolved legal tradition of considering deity/idol as “juristic person” on the basis of continuation of tradition of worship and offering prayer to such idea/form of divinity without necessarily being manifested into the form of physical idol, which was agreed by the Muslim party. This recognition of BSRV as juristic person was combined with scrutiny of evidences which demonstrated that unlike the Hindu party, which demonstrated the continuation of worship and prayer in the outer courtyard of mosque and their assertion of right to offer worship mixed with a few incidents of offering prayer in the inner courtyard of the mosque, the Muslim party neither demonstrated the continuation of prayer between 1526 and 1858, nor succeeded in establishing their exclusive claim over inner courtyard of the mosque, nor contested the exclusive claim of Hindus in outer courtyard. Hence the Muslim party failed to qualify the principle of adverse possession.
The court, therefore, on the basis of “principle of preponderance of probability” awarded the entire disputed structure to BSRV with a consideration that iron bifurcation between inner courtyard and outer courtyard was merely an administrative arrangement by the Colonial power in 1857-1858 to maintain the amity and peace, which does not take away the fact that the entire disputed structure was essentially one compact piece of land. The court then invoke the Article 142 to instruct the Central/State Governments to grant 5 acre to Muslim party at prominent place in Ayodhya in order to do justice to the loss of structure of the mosque.
The judgment has been criticised from the point of view that it dilutes and compromises the principle of secularism to an extent that it has interfered with matter of faith as evident from its directives to the Central Government to constitute a trust for construction of temple and a grant of land to construct mosque. It is said that it is not a business of secular state to construct a place of worship.
I think this criticism is not fair and merely reflects a “panic reading” of judgment within the context of perceived Hindutava threat to the secular edifice of Indian governing structure. Rather the judgment not only repeatedly upheld the principle of secularism in terms of its equal and just treatment of all religions with equal freedom to practice their religious belief but closely follows the specific tradition of secular governance in India where the state and the court has historically dealt with “secular” aspect of religious activities (such as regulating administrative management and finances of places of worship). The court has in umpteen number of cases have reserved its right to define what it constitutes the “essential of religion”. In this specific matter, the court has been confined to deliberate over secular aspect of faith: the issue of land titles.
Second, it has only given directives to Central Government to establish a “trust”, the composition of which is yet to finalise, to facilitate the construction of temple over undisputed structure without stating or implying that expenditure for such construction would be borne out of the Government exchequer. It may be noted here that while the Central Government constituted a trust to reconstruct Somnath Mandir in early 1950s, the trust raised money from people to complete the reconstruction. On the other hand, the court directed the State Government to allot 5 acre of land to UP Sunni Central Waqf Board, the main litigant in the case, as “just compensation” to the loss of structure of Babri mosque without underlining that mosque will be reconstructed with public fund. Thus in both instances, the court merely upheld the secular tradition of governance.
The announcement of judgment went off peacefully without a single incident of communal tension or violence speaks volume about the administrative capacity of Indian state and astuteness of political class; however one has to concede that this “fragile peace” has rested on the magnanimity of a section of the majoritarian community with “its move forward approach” and “fear stricken tolerance” of the Muslim community.
Nonetheless, the judgment has potential to achieve a durable “social peace” between the two communities if the following conditions are met: (a) The Government must reign in the fringe extremist section of majoritarian community to celebrate the day as ‘victory day’ in future; (b) the Muslim community must not file pleas for review of the judgment as it has potential to further vitiate the national atmosphere; (C) the Muslim community must not see this judgment as a part of bundle of Government’s (perceived) anti-Muslim actions: incidence of lynching, cow politics, abolition and criminalisation of instant triple talaq, abolition of Article 370 and downgrading of Jammu & Kashmir to UT, the threat of NRC, threat of Uniform Civil Code, etc, rather a result of legal scrutiny with faith in Indian judicial system, and (D) the Government must built the conducive political climate in which minorities could live with sense of security, trust and liberty.
(The writer is Senior Fellow, Policy Perspectives Foundation, New Delhi)