Chief Justice of India J.S. Khehar’s intervention on Tuesday in the sensitive Ramjanmabhoomi-Babri Masjid case seems ill-considered. It is an issue, said the CJI, of “sentiment”, as he urged both sides to sit together and sort it out, “give a bit, take a bit”, and arrive at an out-of-court settlement — he even offered his own services as mediator.
The CJI’s prescription sounds incredibly unmindful of the tortuous career of a dispute that has been in court, in one form or another, for nearly seven decades now. The stoking of “sentiments” was what led to the shameful and illegal demolition of the Babri Masjid in Ayodhya on December 6, 1992. After that, there have been several ill-fated attempts, under different political regimes, at dialogue, arbitration and negotiation between the two sides, the Vishwa Hindu Parishad and the Babri Masjid Action Committee.
It was because all such efforts ran into dead ends, and because talk of resolving the issue in the “people’s court” became a pretext to inflame passions and wreak communal polarisation that the apex court became the primary, rather the only, forum for resolution.
A Supreme Court decision has been pending since 2011, when it put a freeze on a judgement by the Allahabad High Court that directed a three-way division of the disputed land — one-third each to the Sunni Wakf Board, the Nirmohi Akhara and Ram Lalla. Now, the CJI’s advocacy of an out-of-court settlement sounds like an abdication of judicial responsibility in a matter that must be decided on the basis of the Constitution and the law — not by “sentiment”, or religion.
At this time, it could also be argued, the space for an out-of-court settlement is far more constricted than it has been in recent times. With a BJP government enjoying a large majority in power at the Centre and a BJP government with an overriding majority having taken over the reins in Uttar Pradesh, any fair assessment of the terms of negotiation would have to take into account the sheer inequality of power, the political weight and dominance acquired by one side of the argument in the dispute.
Of course, majorities are the basis of formation of government in a democracy. But in a Constitutional democracy, the majority principle, or the majoritarian one, is always limited and constrained by a network of checks and balances and a mosaic of countervailing institutions.
It can certainly never be the guiding light for justice. For the Chief Justice of India to now throw the ball back to the litigants in the Ram-Janmabhoomi-Babri Masjid dispute is to lend the imprimatur of his high office to a proposal that is vulnerable to political misuse. And to, in effect, send an ominous message: That the case will be given over to the decision of the majority at a time when there seem to be very few checks on its will to have its way.