Some Legal and Social Aspects of the Ayodhya Judgment

            On September 30, 2010, a bench of Allahabad High Court at Lucknow delivered judgment (“Ayodhya Judgment” ) in three separate opinions by Justices SU Khan (“Khan Opinion”), Sudhir Agarwal (“Agarwal Opinion”) and DV Sharma (“Sharma Opinion”) in civil suits relating to the land on which the Babri Masjid (“Disputed Structure”) and cognate land (“together Disputed Land”).  

            From the official gist of the judgment, and newspaper reports it appears that the Ayodhya Judgment is fit case for appeal to the Supreme Court. Legally speaking, there are several grounds on which the judgment could be assailed, and some of which are set out below. Firstly, neither of the parties to the suit appears to have prayed the court for trifurcation of the land, or have specifically requested the court to decide the dispute in exercise of its inherent powers such that it furthers the ends of justice. While the power to modify the relief to further the ends of justice is inherent, often the same is exercised only on parties request and not suo motu in such cases.  Such power by its nature is meant to be sparingly exercised; because such a power tends to erode the legitimacy of adversarial system of dispute resolution.  Unless the parties waive their right by requesting the court to exercise its inherent power, such exercise of inherent power, with or without specifically stating the same, may be seen as an attempt by the court to enhance the strength of the parties which has a weak case.

            Also, it appears that the testimony of expert witness relied upon is not independent, inter alia because the expert witnesses appearing on behalf of ASI had a mentor-protégé or guide-researcher relationship, and given the Indian system, their independence may be doubted. There are several concerns about the ASI Report itself, which could be discussed separately at a more appropriate stage.  For now, suffice to say that public may never be able to discover the assailable aspects of the report because of constricted view being taken by the courts. In an open letter published in the Economic & Political Weekly (October 16, 2010), several historians have petitioned the Allahabad High Court: “We learn that two archaeologists, D Mandal and Shereen Ratnagar, who criticised this report in a book published in 2007, were served with a contempt of court notice by the Allahabad High Court this summer. So far as we know the orders in the contempt case are yet to be passed. If that be so, the world at large is equally constrained to silence. Such a judicially ordained zone of uncertainty curbs freedom of expression and fair comment.”

            Further, avoidable reliance in Sharma Opinion and in Agarwal Opinion on ‘faith’ and Hindu mythological literature may tend to erode the value of legal reasoning and perceived judicial independence that a judgment should be imbued with. While reliance on religious text and other faith based material is common in judicial precedents, it is the reliance on faith (and sentiments) alone that may be problematic. Such an argument tends to separate democracy of numbers from the rule of law.

              As a matter of judicial process, observations in the Sharma Opinion that construction of Babri Masjid after demolition of a temple was against the tenets of Islam could have been avoided and the question could have been left open for a more appropriate case. This is critical as this may impact several structures across the country, including those of other minority faiths, or even majority faith.  

             Restrictions on the power of the State to acquire any property for public purpose spelt out in Sharma Opinion may jeopardize infrastructure projects which involve partaking of religious sites and deserves to be appropriately clarified by the Supreme Court. The Allahabad High Court has given a rather narrow and literal meaning to the Supreme Court’s decision in Ismail Faruqui Case.  

            The Ayodhya Judgment admittedly has several aspects that affect the society. The judges in Ayodhya Judgment have laid a foundation that ultimately the outcome will have to be a mid-way settlement acceptable to all, and not one that is completely legal. It does not however mean that it should be any less legitimate. The present proposal of inconveniently trifurcating the land poses practical difficulties (such as controlling pilgrims if the temples/mosque are built, if at all) in the long run.  It also echoes the Supreme Court’s concern in Ismail Faruqui Case, that judiciary is being used to lay down a foundation on which negotiated solution would result, and that State has no real intention of abiding by the judgment.

            The deserted streets across the country on September 30, 2010 will show that People of India are afraid of those elements who could attempt to politically encash the verdict. Absent a bright line test, fear must not be mistaken for maturity of the people. Had it been maturity normalcy wouldn’t have been affected. Those who have faced the brunt of 1992 Mumbai Riots and 2002 Gujarat Riots unequivocally agree that at the end, it is about numbers and not only have they got rioters to face, but a reluctant government too.

            The Ayodhya Judgment is a test for maturity of republic and democratic India, where the outcome is only marginally less important than the process. Also, while one can live with the outcome the reasoning for such outcome may be difficult to reconcile with. This is especially because, the language and tenor of Sharma Opinion tends to condone the demolition of the Disputed Structure.  While Sonia Gandhi’s recent assurance does remove some inhibitions, but unless the people see the results themselves, it does not add much force.  Dr. Rajeev Dhawan has pointed out that connection between “legitimacy of mosque” argument and the criminal trails, for if the mosque was not legitimate it was only a brick-wall structure that was demolished, for which the penalty in the eyes of law would much less. The observations and finding by the Allahabad High Court are likely to be appropriately utilized in criminal trials, for reduction of charge and of course penalty.

            Further, the language Ayodhya Judgment read with events of December 6, 1992, must not be allowed to be construed as a strategic precedent to excuse criminality of the events.  Irrespective of the outcome of the civil suits, it is vital for restoration of faith in democracy that the criminal trials relating to demolition of the Disputed Structure must be vigorously pursued by the State.

            Overawed with the projected ‘muslimness’ of the issue of Disputed Structure, one must not lose sight that Muslims of India are faced with same issues are everyone else – underdevelopment, inequality in access to opportunities, and marginalization. The Ayodhya Judgment or one mosque anywhere should not be allowed to eclipse the entire discourse on development of backward Muslims.  There is much more to worry Muslims than a mosque.

            It appears that for majority of Muslims the outcome of the Ayodhya Judgment appears to be less important than its consequences, which are in the nature of violence, loss of property and discrimination. Therefore, irrespective of the eventual outcome there is an obligation on the State to ensure that there is no further violence and forces will have to be accordingly mobilized (physically and emotionally).  The State further needs to ensure that the police force is humanitarian if not completely secular in its dealings.

            While reading the Khan Opinion one cannot avoid taking note of the partisan behaviour of the then District Collector of Faizabad, and generally raises doubts about the secular character of civil servants.  It is difficult to put down here what the “take home” lesson from this could be, but clearly there is a need to (a) secularize the actors in governance; and (b) ensure inclusive governance.

           

            It is difficult to conclude a piece like the present one taking a firm and exhaustive views on each and every issue. At the best, it can be said that “We, the People” have a long walk to real freedom.