Paradoxical though this may sound, but the Supreme Court verdict turning down the plea to send the 1994 Ismail Faruqui case to a larger Constitutional Bench, may eventually eliminate extraneous matters which have complicated what is quintessentially a civil dispute and force future hearings to the core issue. This is the same case where the apex court made the sweeping assertion that “a mosque is not an essential part of the practice of the religion of Islam”.
From a fundamental question of ownership or title of the disputed structure (or the land), all sorts of faith related questions have been added to complicate an already byzantine legal maze. The return to the title suit now pending for almost seven decades, which will be heard from October 29 by a newly constituted bench, marks new hope for arriving at a judgement aimed at settling the original dispute.
Quest to Restore Faith
These hearings will, however, be overshadowed by the opinion of significant sections of people, almost in its entirety among the religious minorities but also within the majority, that the sanctity of a religious place has been ridden roughshod over in the (recently endorsed as "secular" by Mohan Bhagwat) republic. It will be recalled that the judicial viewpoint prevailed over a minority opinion not once, but twice—in 1994 and now. That the minority view on both occasions was voiced by judges belonging to religious minorities, although coincidental and not necessarily reflective of majoritarian bias, will not bolster confidence in the judiciary.
The first majority judgement, pronounced by three of the five judge bench, concluded that in Islam a place of worship is not central or of vital import as namaz “can be offered anywhere, even in open”, without as much as either detailed examination of Islamic scriptures or the query being central to the case. The dissenting verdict of Justice S Abdul Nazeer now provides several reasons why the issue of essentiality and centrality of a mosque in Islam must be heard by a larger bench.
Given that the matter has been sealed for the moment and the Ayodhya case (as we know it) will resume hearings in four weeks, the new bench must remain committed to what it has stated: that it would hear the matter only as a civil dispute and steer clear of fissures over faith.
If the Supreme Court, too, follows the path which the Allahabad High Court chose when it pronounced the populist judgement on September 30, 2010, faith of people will be severely eroded in the judiciary.
Justice Nazeer wanted the 1994 judgment to be examined by a larger seven member bench purely on the strength of several other cases of lesser import being referred to bigger benches in past. He also sought the reference to examine whether “Article 25, only protect(s) belief and practices of particular significance of a faith or all practices regarded by the faith as essential?”
Where Angels Fear To Tread
Despite the legal imbroglio on Ayodhya being narrated ad nauseam, there is need to recall that the 2010 verdict of the High Court was pronounced twenty one years after four civil cases—three by Hindu parties and one by the Sunni Central Wakf Board—were clubbed together and were transferred to the Allahabad High Court.
At the outset of its verdict, the judges recounted what they had been up against: "Here is a small piece of land (1500 square yards) where angels fear to tread. It is full of innumerable land mines. We are required to clear it. Some very sane elements advised us not to attempt that. We do not propose to rush in like fools lest we are blown. However we have to take risk."
Such metaphorical text apart, what has been contentious and would be challenged now in the apex court, is that in the majority opinion of the High Court judges (thankfully one Hindu and one Muslim judge) the verdict was reached on the basis of faith and not treated as a title suit. It dismissed Sunni Waqf Board's suit for possession of the mosque for being time-barred and because its demolition changed the nature of the disputed site.
Significantly, the two judges also declared the site as the birth place of Lord Ram on the basis of faith. Consequently, it argued that because Muslims and Hindus had been in possession of the disputed site—Muslims inside the precincts and the Hindus just outside touching the boundary wall—till December 1949, both communities were owners of the land. The land was split into three portions because there were two Hindu claimants besides the Sunni Waqf Board.
Faith Appeases the Majority
The judgement was welcomed by most Hindu groups including the Rashtriya Swayamsevak Sangh and its affiliates, most significantly the Vishwa Hindu Parishad, the vanguard of the Ram temple agitation. They were happy that the court decided the matter on the basis of faith and recognised the site as Lord Ram's Janmasthan.
Politically, it would be beneficial for the Bharatiya Janata Party if an early verdict is delivered and, at least, the High Court judgement is upheld, if not a new one is pronounced in favour of Hindus. The BJP would rather that all legal hurdles impeding temple-construction be cleared by early next year. A definite calendar can, then, be announced during the forthcoming kumbh mela, arguably the biggest global congregation of Hindus. Such a verdict carries the risk of social unrest but conflict on communal lines would only benefit the BJP.
Ayodhya Verdict Will Define Pluralism in India
In his paper ‘Law in a Pluralist Society’, Justice MN Venkatachaliah contended that law in pluralistic societies must not progressively assimilate minorities in a majoritarian milieu but must “devise political, social and legal means of preventing them from falling apart and so destroying the plural society of which they are members.”
In 1994, the Supreme Court was confident that “Ayodhya is a storm that will pass. The dignity and honour of the Supreme Court cannot be compromised because of it.” To ensure this, it will have to derive strength from a Jonathan Swift quotation used in this order: “We have just enough religion to make us hate, but not enough to make us love one another.”
In January this year, when several judges addressed an unprecedented press conference, it was widely perceived to be in response to the demitting CJI, Dipak Misra succumbing to the official pressure. Much has since happened in the corridors of the apex court and spotlight has been cast on the apex court like never before. There is ample reason to believe that Justice Gogoi would be cautious while allocating cases to judges and ensure that credibility of the Supreme Court is not undermined.
Unlike previous occasions, the judiciary under a new CJI will have to discover sufficient religiosity to make Indians love each other. It unfortunately is a tall order and makes the apex court's task even more daunting.
(The writer is an author and journalist based in Delhi. His most recent books are ‘Sikhs: The Untold Agony of 1984’ and ‘Narendra Modi: The Man, The Times’. He can be reached at @NilanjanUdwin. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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