The Supreme Court of India has performed many an interpretive wonder but a unanimous judgement by a constitutional bench of five justices must count as a miracle. And that too in as volatile a situation as the Ayodhya disputation. Several mediation attempts proved fruitless, and all parties expressed faith in the eventual judicial reasoning and result. A 40-day hearing (from October 16, till the judgment on November 9) was a unique achievement in the annals of the apex court.
The court was particularly mindful of the social impact of violence and the chequered history of 135 years of “flashpoint of continued conflagration”. All political parties have issued appeals for social harmony and the prime minister’s appeal to his party to maintain social peace and not to politically polarise the decision has been echoed by several parties and leaders. One hopes that maximum restraint and responsibility will prevail for the good of the nation and the discipline with which it has been greeted so far will continue.
In a finely chiselled decision, the court rules the award of 2.77 acres for the construction of Ram Mandir in Ayodhya and an alternate space of five acres for a new mosque. The decision is open to recourse to review and a curative petition, although all parties had agreed to accept fully the final decision.
The addendum, running into 116 pages, discusses whether the disputed structure is the holy birthplace of Lord Ram as per the faith, belief and trust of the Hindus. This, clearly, cannot be part of the judgment because anonymous judicial opinions are constitutionally impermissible.
If the litmus test of a good constitutional decision is the scrupulous judicial avoidance of constitutional othering, this judgment valiantly succeeds. It clearly frames 16 “points for determination” and firmly holds that during the intervening night of December 22/23 1949, Hindu idols were installed under the central dome of Babri Masjid and that the 1992 demolition of the masjid was “unlawful”. And it decides, further, that the court must, “as a secular institution, set up under a constitutional regime. steer clear from choosing one among many possible interpretations of theological doctrine”. “Above all”, it said, “the practice of religion varies according to the culture and social context”, which “indeed is the strength of our plural society”. This means that not faith, but secular law and evidence, should help decide all constitutional matters.
Ill-informed comments, even by some eminent leaders of the Bar, prevail about the future. They remain ignorant of the fact that Parliament in 1991 enacted the Places of Religious Worship Act. This prohibits the conversion of any place of worship (save Ayodhya, which was then before the courts) and “speaks to the future by mandating that the character of a place of public worship shall not be altered” and “seeks to impose a positive obligation to maintain the religious character of every place of worship as it existed on 15 August 1947”. Going through parliamentary debates, the court finds a clear legislative intention to “bind those who govern the affairs of the nation at every level” and that these norms “implement the Fundamental Duties under Article 51A and are hence positive mandates. every citizen as well”. Secularism is again declared a constitutional commitment and obligation and “a part of the basic feature of the Constitution”. Any future amendment or repeal of the law is rendered unconstitutional because these principles are “non-derogable” and based on the principle of “non-retrogression”.
In a long-ish analysis of legal personality, the court explains why (while ruling that Asthan Shri Ram Janam Bhumi is not a juristic person) “in a country like ours where contesting claims over property by religious communities are inevitable”, it “cannot reduce questions of title. to a question of which community’s faith is stronger”. All these are strong assurances of secularity that the apex court now chooses to reinforce, and these negate altogether the facile claim that it is, or may be, swayed in future by considerations extraneous to constitutional secularism.
And yet, it seems, that the indictment of constitutional othering may have to do with the way in which the court has dealt with the issue of “preponderance of probability” of evidence and the reliance on the ASI report as secular evidence. The latter has been subjected consistently to two caveats in any final determination: First, that the report does “find the evidence of pre-existing structure” and second, it leaves unanswered whether a Hindu temple had been demolished to pave the way for the construction of the mosque.
As regards the former, it rules that for a long period “of over 375 years which elapsed since the date of the construction of the mosque until the setting up of a grill-brick wall by the British”, the Sunni Waqf Board has not adduced any clinching evidence of the exercise of possessory control over the disputed site; nor “is there any evidence of offering namaz in the mosque over this period”. Strange though it may look to non-lawpersons, the law requires a party which claims uninterrupted, continuous, adverse possession to fully meet the burden of proof.
This article is a plea for a careful study of this encyclopaedic decision. The award of five acres of land in Ayodhya is not an act of constitutional largesse but an exercise of power and duty to do complete justice under Article 142 of the Constitution. What is addressed here is the meagre remedy for “a wrong committed” because justice would cease to exist if the court “were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law.” “Equality of all faiths” is a constitutional command. And the Constitution requires “tolerance and mutual co-existence”, which alone will nourish “the secular commitment of our nation and its people”.
This article first appeared in the print edition on November 12, 2019 under the title ‘Chiselling secularism’. The writer is professor of law, University of Warwick,and former vice chancellor of Universities of South Gujarat and Delhi.
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