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Gyanvapi: Court must follow law not faith

Ashutosh Varshney writes: Attempt to reclaim mosque for Hindu religious purposes flatly contradicts the Constitution.

Written by Ashutosh Varshney |
Updated: May 24, 2022 8:43:09 am
The Gyanvapi mosque is undoubtedly a legacy of the Mughal emperor Aurangzeb (1618-1707).

Can the wrongs of history be righted by exacting revenge today? The raging controversy over the Gyanvapi mosque points to the unmistakable urgency of answering this question.

The Gyanvapi mosque is undoubtedly a legacy of the Mughal emperor Aurangzeb (1618-1707). Aurangzeb’s destruction of Hindu temples is also beyond doubt. But Aurangzeb’s depredations were not limited to the Hindus alone. He targeted Sikh gurus, destroyed mosques built by adversaries, killed his own brother Dara Shikoh and incarcerated his father Shahjehan. Even Jawaharlal Nehru, normally accused of Muslim appeasement by Hindu nationalists, found him entirely unpalatable. Aurangzeb “sets the clock back”, wrote Nehru in The Discovery of India, commenting on how a common Hindu-Muslim nationality was under construction since Akbar’s reign (1556-1605), only to be violently interrupted by Aurangzeb’s abominations. Aurangzeb is a troubling figure for Indian Muslims, too. After all, how many Muslim kids are named Aurangzeb, as opposed to Akbar, Jehangir or Humayun? Growing up in UP, the historic Mughal heartland, I came across none, and only one since then.

Be that as it may, should Aurangzeb’s 17th century misdeeds be avenged by inflicting harm on India’s Muslims today, even if a sizeable section of public opinion has become noticeably anti-Muslim? We can’t answer this question until we turn to the constitutive principles of modern democracy.

Two of the key foundations of modern democracy are popular will and the constitutional settlement. The attempt to reclaim the mosque for Hindu religious purposes belongs to the former realm. But the attempted reclamation flatly contradicts the Constitution.

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This duality has notable institutional dimensions, too. In a democracy, popular will is expressed in elections. And in the parliamentary system that India has adopted, the electoral verdict then gets embodied in legislatures. Unlike presidential systems, where popular will is reflected in two institutions at the political summit — the presidency and the legislature, both of which are elected — legislatures become the sole carriers of popular will in parliamentary systems. Further, in presidential systems, the two elected wings of government, the executive and the legislature, can be under different parties, often generating contestation between the two, as is common in the US. But in a parliamentary system, a regular executive-legislative clash is rare. It is the legislative majority that produces the executive.

Is there, then, any check on the power of legislatures — and by extension, popular will — in a parliamentary system? It is the Constitution which supplies the underlying constraints. Being the supreme law of the land, the Constitution provides the framework within which politics must function, legislatures must enact laws, and executives must make decisions. In effect, the Constitution lays out what politics cannot do, what laws legislatures cannot pass, and what decrees the executive cannot issue.

If legislatures are the institutional embodiment of popular will, the courts play the same role for safeguarding the Constitution. Parliaments do not protect the Constitution; courts do. That is why judicial interpretation critically matters. If judges increasingly begin to agree with the legislature, executive or popular mood, even when serious constitutional matters are at stake, courts abandon their role as constitutional protectors.

India’s Constitution, whose authorial anchor was BR Ambedkar, firmly established the principle of religious equality. And it went further in protecting minority rights. Since Jinnah’s claim was that India’s Muslim minority would be unable to defend its interests in a Hindu-majority independent India, Ambedkar’s reply was two-fold. First, he said that the so-called Hindu majority exists only in theory; the Hindus are internally divided by caste. Second, even if somehow the Hindus overcame caste divisions and became united, universal-franchise elections were not the only feature of democracy. Constitutions guide and constrain democratic governance. Therefore, he successfully argued that the religious, cultural and educational rights of minorities would be especially protected by the Constitution. In short, if elections, giving way to majoritarian passions, can’t protect the minorities, the courts, following the Constitution, will.

Under Atal Bihari Vajpayee (1998-2004), Hindu nationalism proceeded constitutionally carefully. But of late, it has been flagrantly violating Ambedkar (who incidentally was passionately criticised by Hindu nationalists in the 1950s). Unlike then, India’s elections are now increasingly legitimating Hindu nationalism. And driven by such electoral fervor, India’s parliament has enacted majoritarian laws such as the abrogation of Article 370 and the Citizenship Amendment Act (CAA); multiple state-level laws and/or executive decrees are banning beef-eating and inter-faith marriage, and altering historical Muslim names of towns and roads; BJP states are stopping Muslim girls from going to schools if they cover their heads, but not Sikh boys if they wear patkas, or Hindu boys if they wear a tilak; and BJP state governments, constitutionally responsible for law and order, look the other way when Hindu mobs attack minorities. Bulldozers have been used to demolish “illegal” Muslim homes and businesses, even though illegal constructions are part of what Foucault might have called “popular illegality”, in which a lot of citizens have participated, not simply Muslims. Nonetheless, governments have deemed Muslim selective punitiveness legitimate, something seemingly supported by a substantial section of the population. India is developing an alarming taste for a communally penal state.

If it is serious about its Constitution-protecting role, the judiciary should check the Hindu nationalist popular frenzy. But it does not even schedule hearings of any fundamental challenges to Hindu nationalist policies or legislation: For example, Article 370 and the CAA. It even approved conversion of a contested site in Ayodhya into a Hindu temple. It has now admitted petitions on the Gyanvapi mosque, and it is not clear which way it will go. The Places of Worship Act, 1991, made in accordance with the Constitution, clearly says that the status of a religious place cannot be altered beyond what it was at Independence. Judicial interpretation must follow the law, not faith. But the courts can always ingeniously construct arguments that show why the 1991 law was neither usable for Ayodhya, nor might be applicable now.

If religious equality and minority protections, two of the fundamental principles of the Indian Constitution, are made prisoners of electoral passions, India will not cease to exist, but its 1950 republic will end. Hindu nationalists, then, will go on challenging many more disputed sites as long as they have the electoral power. We can expect a relentlessly violent India, whose majoritarian horrors are bound to be internationally noted.

The writer is Sol Goldman Professor of International Studies and the Social Sciences at Brown University

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