A judgment that does not reconcile
What if courts relied on the ‘faith and belief’ of Hindus in cases like sati and child marriage, asks ANAND TELTUMBDE
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The parallel may not be palatable to everyone, but the recent verdict of the Allahabad bench of the Lucknow high court can be compared with a case that was decided some 80 years ago in a small colonial court at Mahad in Maharashtra. The case was filed by the orthodox Hindus of Mahad to block the move of the untouchable castes to perform a satyagraha at the ‘Chavadar Talao’, a pond at Mahad, in December 1927. The tank was private property, and the untouchables could not trespass, was their contention. The court of the sub-judge of Mahad granted them a temporary injunction on the eve of the proposed Satyagraha, which had to be suspended. But the case was later zealously fought by none other than Dr B R Ambedkar and won.
Just imagine if that court had relied on the faith and belief of the majority Hindus, as the judges of the Allahabad High Court did; what would have been the fate of the social reform movement in India? Surely, the faith and belief of the Hindus 80 years ago would have considered that untouchables filling water from the Chavadar tank was ‘ritual pollution’.
Those were colonial times. Nearly a century later, independent India has lofty ideals in its Constitution and aspires to be a global superpower. But we have gone back to the faith and belief of the Hindus to decide the most important aspect of our national character – secularism – which represents a social contract this country had with its minorities.
Just imagine if the courts were to rely on the faith and belief of the Hindus to decide cases; decadent customs like sati, child marriage, untouchability, caste atrocities, etc, will all get validated. Perhaps the ‘Manu Smriti’ may replace our Constitution. This judgment needs to be seen in the danger it poses to the basic premises of our nationhood.
As such, it was a simple case of deciding property rights over disputed land around the spot where the Babri Masjid once stood. In absence of a clear title deed, the court had to go by the physical evidence that the Masjid existed there.
There is a principle of possessory provision in the law, which entitles land title to those who have uninterrupted and unchallenged possession of an area for 12 years or more. Surprisingly, the court dismissed the case of the Waqf Board and the Nirmohi Akhara claiming titles to the inner courtyard (where the Babri Masjid stood) and the outer courtyard (where the Ram Chabutara is located) respectively.
It is indisputable that the Masjid was at the spot uninterrupted from 1528 till 1949, when ‘namaz’ was last read. At the Ram Chabutara of the Nirmohi Akhara, poojas have been performed uninterrupted since the 19th century. As regards the claim to the area under the central dome as the birth place of Ram Lalla, a five-judge bench of the Supreme Court had already ruled in 1994 that it was incapable of legal determination, while responding to a Presidential Reference sent to it after the demolition of the Babri Masjid. There was a legal ruling of the highest court in the land to guide the three judges on the issue.
But the learned judges chose to seek archaeological evidence to determine whether there once existed a Ram temple, as contended by the Hindus. How was it relevant? Even if archaeology shows that there was indeed a Hindu temple, can it be construed that the land belonged to the contending Hindus? It only proves that before the mosque was built, there existed a Hindu temple; nothing more. There is no way to find out what property transactions took place while constructing the Masjid. But the court has seen what even archaeology could not.
The Archaeological Survey of India (ASI), under the then NDA government, led by the BJP, which spearheaded the Ram Temple movement, reported a finding that there was a place of worship at the site where the mosque stood. The evidence was not incontrovertible, and was widely disputed by experts. But did it prove whose place of worship it was? It could well have been a Buddhist or a Jain temple. Even assuming it was a Hindu temple, could the ASI prove that it was a Ram temple, let alone the place where Lord Rama was actually born? But the judges have, notwithstanding, accepted the spot under the central dome as the birth place of Lord Rama!
India does not have archaeological evidence of any civilisation older than Mohenjodaro and Harappa. The next living evidence, after a dark period of a millennium-and-a-half, belongs to the Buddhist period, which extended till the 9th century CE. During this period, historians tell us, India was dotted with Buddhist viharas, monasteries and Buddha idols. Very little of it is seen today. It is a known fact that the Hindus decimated Buddhism and converted these viharas into temples. If mosques were built at the sites of temples, it is equally true that temples were built at the sites of Buddhist viharas.
When the Babri Masjid controversy was raging, exactly such a claim was proffered on behalf of Buddhists by the late Dr Savita Ambedkar, the widow of Dr B R Ambedkar. If the court is inclined to go into archaeology, logically, it should take cognisance the claims of Buddhists. Ayodhya figures much more in Buddhist (and Jain) literature as an important religious place, than in any Hindu text. Not even the ‘Ramcharitmanas’ of Tulsidas, written in the 16th century in the very same province, has any mention of Ayodhya being the birthplace of Ram.
There is no incontrovertible evidence for Lord Rama being a historical personality. Mythology takes him back to 17 lakh years. Hindutva pseudo-science places him at 7,000-odd years ago. Still, the judges have established the exact spot of his birth, under the central dome of the destroyed Babri Masjid.
If it was really the belief of the majority of the Hindus, history would have provided evidence of some disturbances during the five centuries of existence of the Babri masjid. The land dispute goes back to the mid-19th century at the very earliest, while the temple-mosque controversy started only after the idol of Ram Lalla was placed under the central dome surreptitiously by some miscreants in 1949, in the frenzied communal context of the times immediately after partition.
Leave apart the majority of Hindus of India, even the majority in Ayodhya does not believe that Lord Rama was really born under the central dome. Just as there are dozens of churches in Bethlehem that claim to be the birthplace of Jesus Christ, there are many temples in Ayodhya that claim to be the birthplace of Lord Rama. It is only the Sangh Parivar which initiated and propagated the notion of ‘Ram Janmabhoomi’ for mobilisation of Hindus for its political objectives.
This judgment unwittingly validates that partisan politics by accepting that it was the “place of birth of Lord Ram as per faith and belief of the Hindus”, as Justice Agrawal wrote and “the birth place of Lord Ram… Hindus have been worshipping the place… and visiting as a sacred place of pilgrimage since time immemorial”, as Justice Dharam Veer Sharma wrote. The main slogan of the Sangh Parivar – “mandir vahin banega” (the temple will be built at the same spot) – is enabled by the judgment.
The least the judges could have done was to grant the Babri Masjid site to the Muslims. It is futile to say, as Home Minister P Chidambaram observed, that it does nothing to justify the demolition of the Babri Masjid on 6 December 1992. Since the judgment suggests that the masjid was an illegitimate structure built after destruction of the Ram temple, the criminal case gets automatically weakened. Even without this judgment, it was inconceivable that someone like Advani would be convicted for the demolition. But with the judgment, all his provocations to the frenzied mob that razed the domes appear like quasi-truth.
The judgment has been defended as ‘reconciliatory’. But in reality, it does not reconcile anything. Just because there was no strong adverse reaction is no proof that it was accepted by all communities.
Only the Hindutva forces have been troublemakers in this case. Muslims kept calm when someone installed a Ram Lalla idol right in the centre of their masjid. They maintained it when the locks put on the gates were opened, allowing Hindus to perform pooja in their masjid. They did not react when they were communally abused all over the country during Advani’s Rath Yatra. They showed restraint even when the masjid was demolished by the frenzied mob; and suffered grievously in its aftermath.
The Babri Masjid has been more important for the Hindutva forces than the Muslims. They were hurt not so much by the loss of the masjid, as by the breach of trust by the Indian state. Still, they reposed faith in the Indian judiciary. What will be their opinion about the judiciary now, after this judgment?
The Muslims are in no position to take a combative posture, and are trying to display magnanimity. Many in their ranks feel they should not appeal to the Supreme Court. Some are even prepared to help Hindus build a Ram temple at the site. Actually, Mohammed Hashim Ansari, a nonagenarian and a litigant in this case, proposed a negotiated settlement with Mahant Gyan Das, the head of Ayodhya’s Hanuman Garhi temple and the Akhara Parishad, who has influence over the Nirmohi Akhara. The only hurdle they both perceive is the Ram Lallawallahs, backed by the Hindutva brigade. It is the Ram Lallawalahs who, despite having got more than expected, are belligerent and want to appeal to the Supreme Court.
There was no question of any mischief this time, for several reasons. The state did not want any disturbance, because of the Commonwealth Games among other reasons. The Hindutva forces have lost their steam, and cannot recreate the mass frenzy of the 1990s. Even in their heyday, the Hindutva forces would not have been so successful without the tacit support of the state; this time the political equations are much less favourable.
In order to keep the issue alive, the Hindutva forces will certainly go in for an appeal. So will the other parties. It will take another 10 years. Until then, the government will have to continue to cordon off the area with heavy security. In practical terms, the judgment will not even serve the purpose of paving the way for reconciliation, as some commentators imagine. Chidambaram was right when he termed the judgment “not operational”.
“I believe that the Ayodhya judgment will mark the start of a new chapter for national unity,” Advani told reporters in his first reaction to the verdict. By now, everybody knows the Hindutva definition of ‘national unity’. It means that if non-Hindus wish to live in India, they have to live according to the terms of the Hindu majority. Advani could not hide his glee when he said: “It has affirmed the right of Hindus to build a temple at the sanctum sanctorum.” Indeed, that is the crux of the Ayodhya judgment. But its import is not limited to that. By allowing faith and belief to overtake reason, it has pushed jurisprudence back into darker times.
(The writer is a well-known political analyst and civil rights activist)
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The election of selection
By Adelmo Fernandes
It’s election time once more. There is going to be the bye-elections for the Valpoi consistuency followed shortly by the elections to the civic bodies all over the state. As it is, the state exchequer is burdened by the Assembly elections, which is held once every five years. Now we have a bye-election which will cost the tax-payers a whopping Rs 60 lakh.
The question to be asked is: Why should the common man be burdened for no fault of his? If a particular elected representative decides to join a political party and in the process, has to resign from the membership of the legislative assembly, does it not seem right for the particular representative, or for that matter the political party he wants to join, that they bear the expense of the elections? Yes, of course. Be that as it may, in the entire process it is the aam admi who has to suffer, the same aam admi for which the Government has vowed to work for. Elections are essential in a democracy which is of the people, by the people and for the people. But in our country, it is a government of the politicians by the politicians and for the politicians.
One wonders if this really is a democracy or mobocracy. It must be said that election time brings misery and hardship to the common man. To start with, there is the model code of conduct during which the entire government machinery comes to a stand-still. As it is, files in the government offices move at snail’s pace. Imagine when the movement of these files come to a dead stop. Pending developmental work, if any, remains just that. Carrying out such work can be construed as trying to influence the electorate.
Then there is the problem of candidates coming to your doorstep, begging for votes. The business community also gets affected. The Election Day and the days following the elections, till the results are declared, are declared as dry days. Bars and wholesale dealers will have to pull down their shutters and those who cannot do without booze will have to keep their larders well stocked.
Then there are elections to the civic bodies. There have been some reservations about the conduct of Municipal elections this time around, since many councillors have been grumbling about the reservations of the wards for women, SC, ST, OBC and other candidates. Many councillors consider Municipal elections as a first step to contesting the assembly elections in the near future. Talking of civic bodies, the Mormugao Municipal Council has had several councillors occupying the chair of the Chairperson and Vice-Chairperson.
In fact, Vascoites have lost count as to how many chairpersons the outgoing Municipal Council gave to the port town. Call it the rotation policy or the “Merry-go-round” policy. Most of the councillors can now boast of being ex-Chairpersons or ex-vice-Chairpersons. Behind this drama are the elected representatives of the Legislative Assembly. Amidst all this depressing news there is something to cheer about. Check out tomorrow’s date. It has all the tens. Having a unique number combination, this date will be written as 10-10-10. Cheers…
