Sophie Howe is a Future Generations Commissioner in Wales. Her job, as defined by a law that was enacted in Wales in the UK in 2017, is to make sure that public bodies are accountable to the future. As she said in a recent podcast: “My job description, as set out in law, is to act as the guardian of the interests of future generations.” Her duty is to make sure that decisions, which the next generation could have to pay for in 30 years, are not made.
The spirit behind this Welsh law is: Rushed judgments and decisions that appear like they would “settle” disputes, often do the opposite. They draw lines in ways that make it very difficult for future inhabitants of the planet to escape them. The latter can only shuffle and adjust to decisions made without any imagination of, or concern about, the troubled future — these are often built into actions aimed at present-day concerns.
As the 40 days of hearings are over, and just before the Lordships are set to rule on the matter, it is good to recall that it will be 27 years since the demolition of the Babri Masjid in Ayodhya this December. And longer than that since judicial activity over the title suit of the land with competing claims began. It reached the Supreme Court after appeals were made to the Allahabad High Court order, nine years ago.
The matter coming to the Supreme Court carries an expectation from all sides. It is hoped that the answers it finds would be judicious, fair and draw a line on this matter. A matter which has exhausted much national energy ever since a series of events made Ayodhya a topic of discussion that went beyond the poetry the city once inspired — its legendary evenings by the spires alongside the Sarayu, of Tulsidas and Amir Khusrau.
The Supreme Court has done this “drawing the line” with some aplomb in the past. Its judgments and judges are remembered for the ways in which they have enabled the deepening of democracy. Reading down Section 377 liberated a sexual minority which seldom drew empathy. On the Right to Privacy, the Court read “life” as expansively as possible and gave each citizen a feeling of being important enough to be protected from the peering eyes of the state. Despite stumbling, as it did in cases controversially calling for assuaging the “collective conscience” of a nation, there are innumerable times when the Court has been able to push aside the hectoring of “public opinion” and set the tone for a just and robust beginning, enabling a reset in the public discourse.
There are many judgments known more for the dissent than the majority view. And there are times when this pillar of Indian democracy is asked to provide some sort of closure to big debates that are social, not just political, and have repercussions on the lived reality of millions.
Top courts in other societies and democracies like Germany, the UK and the US also sometimes find themselves in situations where lines must be drawn — and sometimes erased — in order to let citizens achieve higher aims. In countries with a younger demography and more plural populations, like South Africa or India, the task is harder, but by definition, more important. No wonder then, as Granville Austin has pointed out, of all things, the Constituent Assembly debates spent the maximum amount of time on securing an independent judiciary — the salaries of its judges coming from the Consolidated Fund of India and it being vested with the power of contempt. The framers of the Constitution figured that a judiciary which could truly rise above any pressures from the other pillars of democracy would decide how free India would eventually be, even of its own limitations.
South Africa had its transformational moment when the apartheid regime was forced to shut shop. Nelson Mandela, with the massive credibility he enjoyed, could have steered the ship any which way but he chose to take it to a safe harbour when he proposed “Truth and Reconciliation”. The simple formulation hid the large and elegant message that a revolutionary chose to give as he went about setting the terms of a new South Africa. In the words of Dullah Omar, former minister of justice in South Africa, the Commission for Truth and Reconciliation was “a necessary exercise to enable South Africans to come to terms with their past on a morally accepted basis and to advance the cause of reconciliation”.
The matter at hand has seen all kinds of archaeology at work. There is the Archaeological Survey of India, which conjectures about what is true, authentic or “indigenous”. But excavating definitive truth from all the layers is hardly a straightforward task. Is it Ayodhya or Saketa? Is the matter just about a title suit? Is it about belief, and if yes, then the beliefs of how many? It is a case that traverses so much of India’s past and its journeys. The mounds being dug at Muziris or at Keeladi currently could gently point to the palimpsest that India is and the importance of recognising how perilous it is to label any one layer as being the seminal one.
The judiciary has often been the one arm of Indian democracy that has had to insulate itself from the “mood of the moment”, and deliver more than just the law of the land. There is a long and fractious debate on how “transformatively” the courts must intervene in support of what “many” think must be done. And, how much they need to weigh in on behalf of those who stand for “progress”, often antithetical to the “mood”.
Sometimes, legislatures have attempted to draw a line. The Places of Worship (Special Provisions Act), 1991 intends to do this: “An Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947, and for matters connected therewith or incidental thereto.”
There was a time when diversity, the salad bowl/melting pot/khichdi was celebrated and Ganga-Jamuni was not something seen as an “insult” by the late arrivals to the self-proclaimed “originals”. Things appear to have changed with the powerful not-so-hesitant to exert power in their quest to re-examine the Indianness of the millions here for generations.
As an aside, among the most striking things about Jerusalem is the cheek-by-jowl-ness of the Wall — where Jews worship — the Church of the Holy Sepulchre and the Dome of the Rock in Al Aqsa. This is not to airbrush the politics and separation that plays out there.
Whatever may be the verdict of this five-judge bench, after all the effort that has gone into it and the long hearings, it may prove to be foundational and responsible for providing closure and calm for India. If we would rather laugh at the idea of Future Commissioners, we could open the doors for more chaos and leave no scope for the future. It is a choice that will have serious implications for India.
We will know on judgment day, about where the line is finally drawn.