SN Misra
In the long festering dispute between two religious communities over a piece of land measuring 1,500 square yards at Ayodhya, the Supreme Court was to decide whether the spiritual belief of Hindus would prevail over the temporal reality of a mosque built in 1528 by Babar. The Supreme Court order has privileged belief over evidence, based on preponderance of probability.
The judgement needs to be looked at from the larger perspective of the court’s reasoning to overrule a well-reasoned High Court judgement and the allegation that majoritarianism has trumped over judicial impartiality.
The Allahabad High Court, in a 2:1 verdict, had decreed that the Hindu and Muslim parties are ‘joint owners of the disputed premises’. While Justices SU Khan and Sudhir Agarwal had agreed with the contention, they differed on issues such as whether the Babri Masjid was raised on a virgin, vacant, unoccupied open land.
While justice Khan found no credence in the ASI report, and seemed convinced there is an evidence of ‘continuity in structure’ from the 10th century, Justice Agrawal was of the view that Babri Masjid was built over an erstwhile structure that was “religious in nature and non-Islamic”.
The Supreme Court judgement November 9 showed rare unanimity of opinion among the five judges, where preponderance of probability and the ASI report, rather than hard evidence, have been the guiding factors. The Supreme Court has observed that “law must set apart from political contestation over history, ideology and religion”. It has averred that law must provide the edifice upon which multicultural society rests. The court as the final arbiter must preserve a sense of balance that the beliefs of one citizen do not interfere with or dominate the freedom and belief of another.
Relying on the evidence provided by BB Lal, the ASI archaeologist who conducted an excavation at the site in 1975-76, the judges pointed out that “no evidence was produced by the Muslims to show that they were in exclusive possession of the structure prior to 1857”. The court was also convinced that trifurcation of the disputed site according to the High Court judgement of 2010 was “legally unsustainable”. Dividing the land, the court felt, would not serve the interest of either party.
It is a tragedy that a PM such as PV Narasimha Rao, who ushered economic liberalisation to India in 1991, failed to invoke Article 355 to protect Babri Masjid from the hooligans, and that the demolition was overseen by leaders such as Advani and Murli Manohar Joshi
The judgement raises an uncomfortable question about the concept equal citizenship. Harking back to the politics of communalism that dogs India since Independence, it may be recalled that when idols were smuggled in 1949 into the Babri Masjid, the then Chief Minister of Uttar Pradesh Sri GB Pant did not take any effective action under the cover of “law and order compulsion”. He was a firm votary of equal citizenship.
History repeated itself in 1985 when Rajiv Gandhi as the Prime Minister ordered the locks to the Ram Janmabhoomi-Babri Masjid, where puja used to be performed once a year since 1949, to be removed. The subsequent Ratha Yatra by LK Advani to the Babri site to demolish the structure December 6, 1992, is testimony to the competitive politics of Congress and the BJP to capitalise on Hindu majoritarian vote.
It is a tragedy that a PM such as PV Narasimha Rao, who ushered economic liberalisation to India in 1991, failed to invoke Article 355 to protect Babri Masjid from the hooligans, and that the demolition was overseen by leaders such as Advani and Murli Manohar Joshi. His political vacillation gave a body blow to secularism, which is a basic structure of our democratic polity.
The current judgement has sharply indicted the government for breach of the Supreme Court order of 1992 to maintain status quo at the Babri site. It calls the demolition an “egregious violation of rule of law”. It remains to be seen how the government wishes to follow up so that the culprits, irrespective of high position they hold, are brought to book.
Interestingly the judgement has an addendum by an unnamed judge, who has tried to answer the question whether the “disputed structure is the birthplace Lord Rama”. Quoting copiously from scriptures and the philosophical writing of S Radhakrishnan, the judge has averred that Hinduism is not a “museum of beliefs, a medley of rites or a mere map”, but “a way of life”, where Hindus have absorbed the customs and ideas of diverse people; and that Hinduism stands on a higher pedestal than other religious beliefs.
Rajeev Dhavan, defending the Muslim contention, has quoted extensively from Hans Bakker’s book on Ayodhya, to assert that the town Ayodhya “is legendary in character”. “The name is not attested by any archaeological or epigraphical evidence.” The unnamed judge, on the contrary, believes Janmastan of Lord Rama is in place of Babri Masjid, “proved by religious documents and oral evidence”.
The great judge and jurist Benjamin Cardozo had observed in 1921: “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.” In this tussle between spiritual belief by the majority Hindu and the temporal reality of a Masjid, the Supreme Court seems to have been swept by the majoritarian sentiment. The fine balance that the Supreme Court has promised in this judgement to preserve the beliefs of one citizen (majority) over the belief of another (minority), seems to have been cast aside.
On November 9, 1989, the Berlin Wall, which separated the Germans due to ideological divide, was broken. Willy Brandt, the author of ‘Ostpolitik’ had famously said: “The cold concrete stakes that cut through our city have been driven into the heart of the German union. Now what belongs together will grow together.” Thirty years later, on another ninth of November, the Supreme Court verdict on Ayodhya has sadly not broken walls that seem to be separating the Hindus from the Muslims on religious beliefs. It has in fact fortified the differences further.
The author teaches constitutional law.
