Ayodhya: Till judgement day comes again

Ayodhya verdict highlights how the judiciary has made a habit of looking at issues beyond its purview.

By Ronojoy Sen, | Oct 07, 2010, 10.47 AM IST

Much of the commentary on the Ayodhya ruling has made a connection between India's calm response to the verdict with the something-for-everybody judgement of September 30. In reality, peace prevailed largely due to the fact that Ayodhya does not touch a chord in the manner that it did when the destruction of the Babri masjid took place on December 6, 1992.

But that shouldn't make us gloss over the flawed nature of the verdict. One anomaly has been widely noted – the court's reliance on the beliefs and faith of some Hindus regarding the birthplace of Lord Ram to decide the three-way division of the disputed property. The other was giving a stamp of legitimacy to the appearance of idols in 1949 – smuggled in, by all accounts, by Hindu activists – in what was for over four centuries a functioning mosque.

The fundamental problem with the verdict, however, was the court taking on issues that fell well outside its jurisdiction . This was noted in this newspaper and elsewhere as early as 1990, a year after four suits relating to the disputed site were clubbed and transferred to a special bench of the Allahabad high court. Then, TOI had reported, “Several of the 43 issues framed by the court on May 25 pertain neither to law nor any verifiable fact. Rather, these issues fall in the grey areas of history, mythology and religion.” It is pertinent that three years later, the Supreme Court had wisely rejected the presidential reference made by the Narasimha Rao government on whether a temple existed on the site of the Babri masjid.

The three-judge high court bench was, however, unafraid to walk into this minefield. It attempted to answer questions such as whether the disputed site was the birthplace of Ram or if the Babri masjid was built in 1528 by destroying a temple, which it was simply not equipped to do. Unsurprisingly , for all the judges' efforts at going through masses of evidence and the thousands of pages they devote to it, the result is deeply problematic.

One of the judges who gave the majority verdict, Justice Sudhir Agarwal, wrote that finding “positive evidence” for Ram's birthplace in the disputed site is “not only a futile attempt but is against all the canons of the principles of law” . But he still went ahead and determined that the spot where the Babri masjid stood was precisely where Ram was born, a leap that is difficult to justify. Justice S U Khan took an “informed guess” that this was so. Justice Dharam Veer Sharma was, however, absolutely certain saying that the “whole world knows that Lord Ram was born in Ayodhya where the temple Ram Janama Bhumi stands” .

The partition plan trotted out by the court in what was a title suit is an odd one. Constitutional lawyer Rajeev Dhavan has pointed out that the easiest way out would have been using judicial precedent to give title status to the Muslims, saying it was too late to reopen the controversy and declaring that the Muslims had not lost possession of the site between 1949 and 1961 when the first civil suit was filed on their behalf. Instead, the court resorted to a partition plan which was founded on shaky legal reasoning making the real winner Ram’s deity, on whose behalf a suit was filed as late as 1989 by his "next friend" Deoki Nandan Agarwal, a Vishwa Hindu Parishad leader and, ironically, a retired Allahabad high court judge.

But one shouldn’t probably be too harsh on the high court. Many a Supreme Court verdict has entered areas it should never have ventured into, especially in religion-related cases. The two instances that immediately come to mind are the Hindutva judgement and the Shah Bano case. In 1996, deciding on the question of whether an appeal to Hindutva constitutes a violation of the Representation of the People Act, the court equated Hindutva with Hinduism and described both as a “way of life” .

This idea, in turn, was borrowed from a 1966 Supreme Court judgement which, adjudicating on the claims of Satsangis to be a separate religious sect, went into a detailed exposition of why Hinduism should be regarded as a “way of life” . What was an idea expounded by Sarvepalli Radhakrishnan became sanctified by the court only to be appropriated by the Hindu nationalists to justify their agenda.

Similarly, in the Shah Bano case, it wasn't the maintenance granted to a divorced Muslim woman that was controversial. Earlier court rulings had already done so. It was only when the court went out of its way to regret that a uniform civil code had remained a “dead letter” and said it inevitably had to play the “role of the reformer” that the case became such a hot potato.

In the same way, parts of the Allahabad high court ruling will be used as political fodder by the Hindu nationalists. The only saving grace is that today’s India might not be as receptive to that message. Besides, with the stage set for an appeal to the Supreme Court we haven’t heard the last word on Ayodhya.

(The writer is a visiting research fellow at ISAS, National University of Singapore. )

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