Updated: November 25, 2019 9:59:56 am
A nation fatigued by escalating communal polarisation, heightened religious sensitivities and debilitating politics must have heaved a sigh of relief when the Ayodhya verdict was pronounced. Considered by the Court as “an adjudicatory task of unique dimension… traversing the realm of history , archaeology and the law,” the decision has generally been acclaimed as a fair balancing of competing claims to justice.
Critics argue that the judgment rewards violators of the law, negates the constitutional promise of equal citizenship and falls short of expectations of a “rightful restitution”. The hopefully final closure to a prolonged and divisive dispute has been seen by some as a temporary breather rather than an enduring solution. Some have also suggested that the verdict is a judicial concession to majoritarian sentiments.
Most judicial pronouncements are subject to interrogation and the Ayodhya verdict involving “complexities of human history and activity” is no exception. Even so, when read in entirety, the Court’s decision — based on a “preponderance of evidence” — does answer the doubts raised by its critics. The Court has ordered the allotment of five acres of land within the city of Ayodhya to the Muslims as restitution for the desecration of the Babri mosque in 1934, 1949 and its destruction in 1992, while granting the disputed land for construction of the Ram temple. The Court invoked its plenary jurisdiction under Article 142 of the Constitution to do “complete justice” in the case. It treated the disputed land as a “composite whole”, and found that the Muslims could not establish their “exclusive possession of the inner structure prior to 1857 since the date of the construction in the 16th century”.
An informed comment on the verdict — a judgment inspired by a judicial will to find an equitable solution in a “lis” — must take into account the nature of judicial function, particularly the inherent limits of the Court’s adjudicatory role. The question we must, therefore, ask is whether, given the historical context and sensitivities connected to the dispute, the apex court has performed its role as the final dispenser of justice.
Anchoring its judgment in law, equity and good conscience, the Court has given elaborate reasons for its conclusions. While deciding the title suit, it has crafted reliefs, which, in its opinion, would ensure social cohesiveness and religious harmony. Mindful of the scrutiny to which the decision would be subjected, the Court declared that “justice is the foundation which brings home the purpose of any legal enterprise and on which the legitimacy of the rule of law rests”. Investing its judgment with an unexceptionable moral and philosophical dimension, it reminded us that “it is in the cacophony of its multilingual and multi-cultural voices, based on a medley of regions and religions, that the Indian citizen as a person, and India as nation, must realise the sense of peace within. It is in seeking the ultimate balance for a just society that we may apply justice, equity and good conscience.”
Given the Court’s discernible quest for a pragmatic and equitable solution, it is difficult to find fault with the foundational premise upon which the Court rests its articulation of justice — it is one based on legal realism. The Court has invoked the equality principle to remedy a historical wrong and advance, in the way it found possible and reasonable, “the constitutional values of justice, fraternity, human dignity and the equality of religious beliefs”. The ruling also draws its weight from the rare judicial unanimity in exceptional cases. Clearly, this is a decision in which law and judicial justice stand together, vindicating the Court’s function to “find the best solutions within the confines of objective data available” and, to use the legal scholar Aharon Barak’s words, “strike the right balance between certainty and experimentation, between stability and change and between logic and emotion.”
Having willingly and consciously placed our faith in the highest judicial institution to address a national challenge, it is only fair that we defer to judicial wisdom which, even if not perfect, is the ideal way forward — as it is located in experience, law and logic. We must accept that judges, like the rest of us, do not stand apart from history or society. Nor are they immune to the tides and currents which fix the meaning of truth and justice at different moments in time. In seeking to advance the generally-accepted notions of justice, judges aspire to keep law alive, binding the past, present and future in continuity. In finding the right balance, they consider as part of their function, overwhelming social sensitivities and common conviction, which, when asserted, constitute the general will in accord with the democratic principle.
In acknowledging the imperative of ensuring peace and social harmony as the goals of adjudication, the Court has served a paramount purpose that commands overwhelming national endorsement. Reading the judgment in its entirety, one may legitimately conclude that it is not the product of spasmodic sentiment, it is subordinated to the primordial necessity to maintain order in social life and is inspired by solutions consecrated by jurisprudence.
While the finality of the Supreme Court’s decision does not, by itself, attest its infallibility, its binding effect in law can be questioned only at the cost of constitutional anarchy. The futile attempt to reopen a sound judgment, that has partly redeemed the somewhat blemished record of the Court as custodian of the nation’s conscience, will only deepen the fissures that have bedeviled our secular democracy and needlessly burden the Court’s ballooning docket.
This article first appeared in the November 25 print edition under the title ‘Striking a balance’. The writer, a senior Supreme Court advocate is former Union Minister for Law and Justice. The views expressed are personal
📣 The Indian Express is now on Telegram. Click here to join our channel (@indianexpress) and stay updated with the latest headlines
- The Indian Express website has been rated GREEN for its credibility and trustworthiness by Newsguard, a global service that rates news sources for their journalistic standards.