November 9, 2019, will go down in history as the darkest night for justice and Indian democracy. On this day, the five-judge Constitution Bench of the Supreme Court announced that the site of the vandalised Babri Masjid in Ayodhya would be handed over to the deity, Ram Lalla, for construction of the Ram Temple. The cruel irony is while acknowledging the destruction of the masjid as a “violation of the law”, the SC had no compunctions about giving that site to the community that brought down the mosque: The justification being, Hindus considered it to be the birthplace of Lord Ram. Clearly, Aastha or faith has trumped justice and the law.
The idea of India as expressed in our Preamble may be as good as dead. Our secularism has hitherto meant the recognition and celebration of a multicultural ethos, equality and respect for all religions but not the expelling of religion altogether from the public sphere. In fact, Mahatma Gandhi’s secularism was motivated by the faith that imbued him with a strong religious belief in truth, tolerance of other religions and non-violence — these values deeply influenced his actions. But today, the deadly cocktail of politics and religion is used as a weapon against minorities. Last month, our defence minister, in full international glare, conducted Shastra puja when taking over the first Rafale fighter jet from France. The overt symbolism of intertwining national security with muscular Hinduism in a country that boasts of numerous religions was also an affirmation of the undisputed primacy of the majority religion. Hindutva is now the official creed.
The Ayodhya verdict has not come as a surprise. In the days leading up to the judgment, we were witness to a meticulously orchestrated campaign to pressurise the SC Constitution Bench into delivering a decision favourable to the construction of the Ram Mandir. Sundry Hindu religious leaders had harnessed the electronic media to triumphantly proclaim victory for Lord Ram and the Hindu samaj. It was reported how BJP MP Sakshi Maharaj raised the pitch with his announcement that the construction of the Mandir will begin before December 6, the day when the Babri Masjid was brought down. Most remarkable were the anticipatory celebrations which saw five lakh diyas illuminating Ayodhya on Deepavali, raising expectations to a crescendo. Yogi Adityanath and the RSS appealed for restraint — an obvious dog-whistle aimed at the SC that a verdict unfavourable to Hindus would result in massive social unrest. The underlying message was clear: The Mandir has overwhelming social sanction and the Court must play ball.
Evidently, SC needed no such coercion. In the past, our apex court has not only acknowledged the social power of supremacist Hindutva, but has even justified it. In fact, in a 1996 judgment, the SC went so far as to say that Hindutva was “a way of life” and a synonym for “Indianisation, i.e, development of uniform culture by obliterating the differences between all the cultures coexisting in the country.” This view sits perfectly with the Hindutva ideology that talks of the supremacy of the Hindu religion and cultural ethos. The SC has repeatedly passed over the opportunity to revisit and amend this controversial judgment, thereby vindicating Organiser’s triumphant assertion that “the Supreme Court has put its seal of judicial imprimatur on the Sangh ideology of Hindutva”.
The SC’s overindulgence of the faith of the majority is matched by cavalier indifference to the sensibilities of Muslims. The SC judgment of 1994 stating that “praying in a mosque is not an essential part of Islam and namaz by Muslims can be offered even in the open” left Muslims out in the cold. The Ayodhya verdict may have been a foregone conclusion considering that it has come at a time when Hindutva and its advocates control the public square and the institutions of governance.
The Allahabad High Court bench, in 2010, tasked with deciding the issue on the basis of a melange of empirical reality, malleable historical data, dodgy reports and aastha, took recourse to what can be termed “the King Solomon solution”, dividing the disputed site into three equal parts for the contending parties. The litigants and their supporters were stunned by the ingenuity of the even-handed and impractical order that pronounced no winners, and, in effect, maintained status quo. Predictably, the aggrieved parties appealed to the SC, thereby giving the country a nine-year reprieve.
The SC was conscious of being entangled in a double-bind regarding the deeply contentious issue of ownership of the disputed site and, therefore, sought in parallel, a mediated solution involving the main parties to the dispute. It appears that a settlement had been worked out but was then scuttled by hardliners on both sides. The broad contours of the agreement were: a) Muslims would give up claims over the disputed site; b) Muslims will get an alternative site and funds for a new mosque; and c) the state would ensure implementation of the Places of Worship Act, 1991 which prohibits the conversion of any place of worship. The SC has essentially endorsed this template.
Muslims are aware that those in favour of the Mandir occupy the commanding posts in the social, political and legal structure. They know that their only hope of living in peace, albeit temporary, was to cede their rights to the disputed site, justice be damned. They now pray that their other places of worship will be safeguarded by the Places of Worship Act 1991. But they must also contend with the fact that the Kashmiris once believed that Article 370 was inviolable. Muslims realise only too well that in today’s India, the point of view of the majority will prevail, regardless.
Justice O W Holmes had famously remarked that the SC was “a court of law and not a court of justice.” In the Ayodhya case, however, our SC has upheld neither law nor justice. It has consecrated the faith of the majority whose God has been bestowed the disputed site.
This article first appeared in the print edition on November 23, 2019 under the title The way of the majority”. The writer, a former civil servant, is secretary general of the Lok Janshakti Party. Views are personal.
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