The Muslims of India approached the
Supreme Court for affirmation of their citizenship. Instead, they were given five acres of land.
In their verdict on the Ayodhya dispute,
the bench recognised “it is necessary to provide
restitution to the Muslim community for the unlawful destruction of their place
of worship.” But in sharp contrast to their lengthy exegesis on other issues – like
the indubitability of faith, the archaeological evidence for a temple below the
mosque, the way that historical texts must be read – there is absolutely no
discussion of what ‘restitution’ means, and more importantly, what it might
involve in this specific context.
The end of the 20th century might well have been regarded as an ‘age of restitution’ given the wave
of apologies, reparations and truth commissions, like the US government’s reparations
to Japanese Americans for internment during WWII, the Australian and Canadian
governments’ apology to their native populations, or truth commissions in
Guatemala, Peru or South Africa. In all these, as well as in
international law, restitution is portrayed
as a process of arriving at ‘truth’, ensuring ‘non-repetition’, and thereby
effecting some kind of reconciliation, either with the state or with
perpetrator communities. The Ayodhya judgment, however, fails miserably on all counts.
Truth?
Let us imagine,
for a moment, that every other record of the Ayodhya dispute except for this
judgment disappeared. Drawing on Lon Fuller’s The
Case of the Speluncean Explorers,
a fictional case which Justice Chandrachud is fond of, let us imagine that a
future court of Newbharat in 4300 CE is trying to understand why the country
known as the Republic of India self-destructed after 2019 and became the Hindu
Rashtra of Bharat. That Court would rely on this 2019 judgment for the “preponderance
of probabilities,” much like this court which relying on two surviving accounts
of European travellers for its ‘evidence’ that the ‘Hindus’ had continuing use
of the premises for worship but ‘Muslims’ did not, awarded title to the
‘Hindus’.
From
reading the judgment, we would never know who demolished the Babri masjid in
1992 or how it happened, for the words VHP, BJP, RSS or kar sevaks do not figure in this context at all. In fact, BJP and kar sevak are totally absent, VHP
figures once, and RSS twice in the context of the archaeologist SP Gupta over
all of 1045 pages. Nor are we told that the 3rd plaintiff in Suit 5,
starting from Deoki Nandan Agarwal to Triloki Nath Pande are not just ordinary
peace loving Hindu worshippers of Ram, but members of the Vishwa Hindu
Parishad, a militant organization which made the construction of a Ram temple
its political and financial bread and butter. It is interesting, as Anupam
Gupta notes in his article, ‘Dissecting
the Ayodhya Judgment’ (EPW 2010) that neither Swami
Vivekananda nor VD Savarkar mentioned any contest over Ramjanmabhoomi when they
visited or wrote on the place, suggesting that it was made a big issue only
much later on as part of partition-era Hindu communalism.
On what
evidence would the 4300 Bench guess that the seemingly neutral ‘Government’
charged with creating a Trust to allot the land to a temple is run by a party
which came to power on the promise of building that temple? There are no hints
of the way in which the governments of the day, both State and Centre colluded
in the process of demolition, through what Justice
Liberhan, who investigated it, called a “joint common
enterprise”. Indeed, this complicity of the state in
the Hindutva agenda dates back to the forcible installation of idols inside the
mosque in 1949, through the then District Magistrate KK Nayyar who was close to
the Hindu Mahasabha and later stood for elections from the Jan Sangh.
And finally, because
there is no mention of the terrible violence that preceded and followed the
“unlawful destruction” of the mosque, and which has gone unpunished and
uncompensated all these years, the Supreme Court of 4300 would believe that the
only thing that needed to be compensated was the loss of land, and not the loss
of lives, the loss of citizenship rights, or the loss of justice. Two sons of the
last Imam of Babri Masjid were hacked to death on
the night of the demolition, some 1000 died in Bombay alone in the 1992-93
pogroms, and the recommendations of the Srikrishna Commission lie in cold storage.
A civil suit,
lawyers remind us, is legally separate from a criminal trial, and this bench
was called upon to judge only the former. In public perception, however, as the
judges well know, the directionality is mutual. LK Advani, who once tried to
curry respectability by claiming that December 6th was the ‘saddest day of
his life’ claims the verdict has now ‘vindicated’ him. The
Hindu Mahasabha has already written asking for the charges against the kar sevaks to be dropped, and for them
to be declared ‘martyrs’ instead. The VHP has started making plans for the
construction of the temple. What are the odds that the trial court will punish anyone?
Had the Court waited to adjudicate the title suit till after the criminal
responsibility was fixed – and having waited all these years there was no
pressing hurry - the current verdict might have had a different import.
Reconciliation?
The Ayodhya
verdict claims to be in the interests of ‘securing a lasting peace and
tranquility” and has been lauded by many violence-weary Indians on this count.
But lasting peace or reconciliation can only take place on the basis of
justice. Earlier this year I asked a group of villagers in
Chhattisgarh whether we should press the Government for compensation for the
deaths and arson they had suffered at the hands of the state in Salwa Judum.
They were unanimous in responding that they didn't want blood money, they
wanted those who did it to be punished. The Ayodhya verdict may indeed secure
peace, but it is the peace of fatalistic ‘compromise’ by a scared minority. Writing
of criminal cases in Gujarat post 2002 in his article ‘Broken Lives
and Compromise’ (EPW 2012), Harsh Mander describes the ubiquity of
Muslims being forced to retract their cases against Hindu perpetrators of
violence if they want to continue living in the villages. Most have now come to
believe that ‘compro’ is a legitimate legal device. The Ayodhya verdict appears
to be the Supreme Court’s way of writing ‘compromise’ into the legal
system. An actual compromise or ‘settlement’
by the mediation panel would also have ended up with the Hindus getting the
land. Though premised on minority fears of future attacks on their mosques, insofar
as it would have been by the generosity of the Muslims in relinquishing claim,
there would have been a greater chance of reconciliation, than through this
verdict.
Non-repetition?
The likelihood
of non-repetition, which is so essential a part of restitution, rests on
fragile premises. The 2019 judgment reference to the Places of Worship Act is
no bulwark against the VHP’s stated ambition of targeting the Gyanvapi Mosque
in Varanasi, or the Shahi Idgah mosque in Mathura. As the minority opinion of Justices
Bharucha and Ahmadi stated in the 1994 Ismail Faruqui judgment:
“Based upon The
Places of Worship Act, it was submitted that what had happened at Ayodhya on 6th
December, 1992, could never happen again. The submission overlooks the fact
that the Indian Penal Code contains provisions in respect of offences
relating to religion. Section
295 thereof
states that whoever destroys, damages or defiles any place of worship or any
object held sacred by any class of persons with the object of thereby insulting
the religion of any class of persons or with the knowledge that any class of
persons is likely to consider such destruction, damage or defilement as an
insult to their religion shall be punished. …Those who razed the disputed structure to the
ground on 6th December, 1992, were not deterred by these provisions. Others
similarly minded are as little likely to be deterred by the provisions of
the Places of Worship Act. (para 143)
The process of adjudicating a “thousand year old
contestation” has forced the court, it appears, into a willful amnesia about
the past 30 years. The Uruguayan
writer, Eduardo Galeano, reminds us in Upside Down, however, of the perils
of ‘Broken Memory’:
“At the end of the 18th century,
Napoleon’s soldiers discovered that many Egyptian children believed the
Pyramids had been built by the French or the English. At the end of the 20th century,
many Japanese children believed the bombs that fell on Hiroshima and Nagasaki
had been dropped by the Russians.”
The crux of the 2019 judgment is that Muslims could
not prove they had used the mosque from 1528 when it was constructed to 1856-7,
whereas the Hindus could prove longer usage. Surely the fact that the
documentary evidence arises from a dispute in 1856-7 involves the barest
logical inference that Muslims were present and worshipping in order for the
dispute to arise. In fact Carnegy’s 1870 report is cited in para 566 as saying
that prior to 1856-7 both Hindus and Muslims worshipped at the mosque-temple. It
is no one’s claim, not even the VHP’s, that the Muslims invaded the site in
1856 to obstruct Hindu worship. But for this 2019 judgment to make sense, that
is indeed what Newbharat’s court will have to infer in 4300 on the
‘preponderance of probabilities.’
Homologies
between the VHP’s and the Supreme Court Assumptions
For all its claim to base itself on evidence and a
secular Constitution, there are several places in the judgment where the common
sense of the RSS/VHP seems to have become the common sense of the Court.
In discussing the maintainability of Suit 5 (VHP),
the Court goes beyond the simple legal position that the High Court recognized
the VHP representatives as ‘next friend’ of Ram Lalla, and nobody contested
this, to the claim that they were in fact the best representatives of the
interests of the deity:
“The case of the plaintiffs that the institution of the Suit 5 was
necessitated as a result of the deity not being a party to the earlier suits
and based on the apprehension that in the existing suits, the personal
interests of the leading parties were being pursued without protecting the
independent needs and concerns of the deity of Lord Ram, is well and truly
borne out by the proceedings as they unfolded in the proceedings before this
Court. The cause of action in Suit 5 cannot be considered to be barred by
limitation on a proper construction of the basis of the cause of action for the
institution of the suit. (para 428)”
Who is to say what the
“independent needs and concerns” of the deity are? Is Lord Ram better served by
having a grand temple, albeit one steeped in blood, or by the gratitude of millions
of peaceful citizens who worship him in their own way? There is no place today
for a ‘Hundred Ramayanas’ because now Lord Ram’s needs, interests and
representation have been hijacked by one organization. The greatest damage of
this judgment in the long term is to Hinduism, not Islam.
In the only place in the judgment where the
Vishwa Hindu Parishad is mentioned (para 59 of the “Addendum”) the sympathy for
the VHP is open: “The report, thus, has been prepared as a counter
to the Vishwa Hindu Parishad case, which itself suggests that the four
historians had not treated the subject dispassionately and objectively.”
If texts like the Skanda Purana are being relied on
as evidence for an exact geographical location of Lord Ram’s birth (as in the
addendum), then we must also revise our existing chronology to believe that he
was born in the Treta Yug and ruled for 11,000 years. One must not cherry pick ‘evidence’
from sacred texts.
The Court
claims that it cannot question faith once it is found to be genuine (para 555).
However, belief in untouchability, keeping women out of shrines or the faith in
Sati are all beliefs genuinely held by worshippers. Even if faith is not the
ground for the award of title, but the practice of continuing worship
based on faith, surely both use and faith can be questioned on the grounds of
constitutionality, especially if that belief has violent consequences. By
opening up this question, the majority judgment in the Sabarimalai review also opens
the door to a whole host of revanchist practices we once hoped would gradually
become obsolete in the bright light of constitutional appraisal.
Composite
culture
In the early censuses, there were many groups who
declared themselves both Hindu and Muslims. By 1921, however, they were told
they must choose only one identity. The Ayodhya verdict seems at one place to
recognize this rich complexity in Indian history:
“Within the premises of the same complex there existed two
religious faiths. Their co- existence was at times, especially before 1856,
accepting and at others, antagonistic and a cause of bloodshed. Yet, the
distinctive features of the site, embodying both Hindu and Islamic traditions
led to the creation of a space with an identity of its own. The real
significance attached to the composite structure is evidenced by the nature and
the length of use by both of the parties.” (para 769)
The judgment also provides plenty of evidence to
show that the Muslims contested the Hindu use of the outer courtyard and
graveyard (see for instance para 684), just as the Hindus contested the inner
courtyard. To the extent that it was a composite whole, it was an equally contested
composite whole, and indeed if the Hindus exercised greater control over the
outside space, the authorities supported the Muslims in their control over the
inner space. From this position – whether one treats it as a contested
composite whole or two divided portions – to saying that the Hindus alone must
have rights over the whole is a radical jump in both logic, evidence and law.
Had the Court truly wanted to use Article 142 to
deliver ultimate justice, it could have reinforced the composite character of
the site and the plural traditions of the country by asking the Trust to build
a public place like a hospital or university, while punishing those responsible
for the demolition. The preponderance of probabilities leads to the conclusion that
the Court’s decision was predetermined, and it was influenced less by right and
more by rule.
