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.
