A precedent: Hindu Right has affirmed its faith in courts
|
 |
 |
The Ayodhya issue has set a useful political precedent -for the first time, the Hindu right has drawn back from its absolutist standpoint, affirmed its faith in the courts (which it had earlier rejected) and at least considered acompromise. For the time being, let us read these practical benefits as progress. But for justice to be done in the new Jerusalem, this case obviously has to go to the Supreme Court.
By PRATIK KANJILAL
With its ruling on the Ram Janmabhoomi Babri Masjid title suit, the Allahabad High Court has laid the foundation for a new Jerusalem in Ayodhya, shared by Indias biggest faiths. Six decades ago, it had set out to decide a simple property suit and last week, instead of ruling on who owns the disputed site, its three- judge bench decreed that it should be divided up between the plaintiffs Gopal Singh Visharad, the Sunni Central Board of Waqfs and the Nimrohi Akhara. Legal luminaries like Rajiv Dhavan and Prashant Bhushan have castigated the court for exceeding its brief and termed its ruling ` astonishing’ and ` absurd’. But others like Soli Sorabjee have praised the judicial statesmanship’ of the Ayodhya bench.(??? -GM)
The ruling has satisfied the majority, which wants to close the dispute and move on. It has allowed all parties to the case to emerge with dignity intact, but not with everything they had wanted. And most importantly, by depriving extremist Hindutva groups of an emotive issue, it may actually have laid to rest the temple movement, with its long history of violence and murder.
As a political intervention, the ruling is remarkable. It follows the time- tested method of settling a street brawl, encouraging the parties to move on while ensuring that none of them completely loses face. But as a legal document which will no doubt be cited as precedent for decades to come, it leaves much to be desired. The land has been equally divided between the contending parties, but unequally between the religions they represent.
Though it appears that there are no winners or losers here, in fact the minority has lost. While none of the parties has been able to establish the commencement of their title and the court has found the disputed site to have been a shared place of worship, by finding simultaneously that it is the birthplace of Rama, the court has effectively denied the Muslims right to title. Strengthening this impression was the fact that the demolition of the Babri Masjid, a turning point in the history of the nation, was not a point of reference in this ruling.
This explained the embarrassing triumphalism of the Hindu groups, which will sell the ruling to their constituencies as a victory.
The court should have penalised the counsels of the Hindu side, including BJP spokesperson Ravishankar Prasad, for this unseemly one- upmanship. Though it had made scrupulous arrangements to ensure that only the detailed and properly nuanced official ruling reached the public, it was pre- empted by advocates representing the Hindu cause flourishing victory signs in a jubilant press conference engineered to convey the impression that they had won.
Perhaps the court could have reduced the effects of lapses in the ruling in two ways. First, its gist could have included a prominent reference to the ongoing criminal case concerning the Babri demolition.
It represents a huge chapter of the Ayodhya story and it is impossible to arrive at closure without disposing of the matter. Secondly, the ruling could have included a caveat underscoring the special status of this case, setting it apart from the routine legal literature and discouraging its use as precedent in lesser matters.
Much of the criticism of the ruling has come from lawyers who are upset because the court has exceeded its brief of deciding who owns the disputed site. Indeed, none of the parties had pleaded for a three- way split, a solution introduced by the court. But perhaps we are forgetting that if the court exceeded its brief, so did the case exceed its limits. It started as a routine civil matter technically not very different from establishing the ownership of an apartment, where the litigants were clearly defined organisations. It became the icon of a movement by the Hindu right to take control of the Indian polity and legalise majoritarianism based on religion.
It is now a political matter between Hindus and Muslims which should have been solved politically or by legislation, and the court should not have been forced to take on a larger role.
Unfortunately, in India the courts are routinely called upon to do the work of politicians, legislators and executives. But perhaps never before have they been confronted with such an impossible matter. One of the parties is a god, and we must presume that his representative in court has an invisible, otherworldly power of attorney from Him. The contenders are Hindus, Muslims and the Nimrohi Akhara. The first two are communities which, unlike associations, corporations, cooperatives and so on, do not enjoy the status of legal persons.
Strictly speaking, they cannot fight a case. The third party was initially mistaken by the public for a group of wrestlers of unknown affiliation. But since it is a Hindu organisation and the site is being divided between two communities, Muslims can legitimately feel cheated of a half share.
And, of course, the case confounds myth and reality so seamlessly that it is a wonder that the court could come to grips with it at all. Even within the realm of history - and prehistory, actually the court has been called upon to rule definitively on matters which are permanently located in the realm of speculation. It is here that legal requirements have won over the imperative of academic caution with disastrous effect.
The court may have followed legal procedure in finding that the disputed site is indeed the birthplace of Lord Rama, but academically, the judgement is unsustainable.
There is no primary evidence at all and responsible scholars working in the period of remote antiquity never issue unconditional declarations on particulars precisely because the evidence is sparse, inconclusive and often based on hearsay or surmise.
The Ayodhya issue cannot be closed without a political solution.
Since our politicians have been incapable of forging that, we must lean on the crutch of court judgements.
This one has served the immediate, practical purpose of defusing tension and temporarily settling the issue, but it has failed to deliver justice to the minority.
However, it has set a useful political precedent - for the first time, the Hindu right has drawn back from its absolutist standpoint, affirmed its faith in the courts ( which it had earlier rejected) and at least considered a compromise.
For the time being, let us read these practical benefits as progress. But for justice to be done in the new Jerusalem, this case obviously has to go to the Supreme Court. |
|
