A precedent: Hindu Right has affirmed its faith in courts - By Pratik Kanji Lal - THE FREE PRESS JOURNAL - Mumbai

http://www.freepressjournal.in/

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.

Like Jury selection, Judges for Babri Case should be chosen by the litigants on Supreme Court appeal - By Ghulam Muhammed

Sunday, October 03, 2010

Like Jury selection, Judges for Babri Case should be chosen by the litigants on Supreme Court appeal

Ayodhya Verdict as a piece of legal document is held by lawyers and judges as so much flawed when it is tested on the standards of Constitutional fundamentals. The logic and reasoning of all 3 judges smack of extra-legal consideration impacting on their judgments.

Since judges are appointed by State, which is proved to be politically motivated on one side or other, a selection method should be adopted at the next Apex level hearing of the appeal to be filed by the both litigants who should have a stake in ensuring no bias, no prejudice, no politics, no personal agenda is attributed to the selected judges. Both litigants should have the right to veto the candidature of any judge appearing before a specially paneled ‘Selection Committee’ to ensure that case should proceed with mutual trust and confidence in the judiciary. A separate process should be initiated by the Chief Justice of India, to test the bona fides of the judges on their commitment to the Constitution of India, during their past record of delivering judgments.

Since Babri Masjid/ Ram Janambhoomi, title suit is to be considered entirely on the basis of hard facts and documentation, Chief Justice should caution selected judges against inserting extra legal/ philosophical/ ideological/ religious opinions in their judgment.

All such precautions will have to be made at appeal to Supreme Court level, to ensure that such hotchpotch potpourri as presented by Allahabad High Court on Ayodhya, is not coming forth to damage the reputation of Indian Judiciary and drag Indian justice to directions ultra vires of Indian constitution.

Let India not become the laughing stock of the world that is so keenly watching, how India sizes up to the challenges of the modern world.

Ghulam Muhammed, Mumbai

ghulammuhammed3@gmail.com

<http://www.ghulammuhammed.blogspot.com>

Ayodhaya Verdict: Indian Voodoo Justice By Ghulam Muhammed

Friday, October 01, 2010

Letter to the Editor

Ayodhaya Verdict: Indian Voodoo Justice

India has long been known in the West as home of the snake charmers and rope tricksters. Now it will be more famous for one of its most modern and much admired modern institutions turning out Voodoo justice – an amalgam of law and faith impacting the judgments given out by the 3 judge bench of a High Court, all with their version of how Indian law should be interpreted. The Ayodhaya Verdict will go down in history as one of the finest example of an old tradition-steeped country trying to wear the garb of a new nation without realizing its slip is showing. In fact, the Emperor wears no clothes.

For one of contestant of the title suit of the Babri Masjid property, the Muslims, it is a mockery of justice as per the long traditions of legal and judiciary system introduced by Colonial British in India two hundred years back and now very much entrenched in its polity. The Hindutva version of justice takes Indian justice to another two thousand back, even prior to any sharia laws of Muslim era, and the verdict seems to be forerunner of how ‘Vedic’ ( term used for lack of any other suitable Hindu term: with apologies), in contrast to Islamic Sharia, laws may be changing the entire ethos of Indian polity.

While Pandit Nehru, a high-caste Kashmiri Brahmin, thanks to his exposure to Fabian culture that was in fashion when he studied in Great Britain, tried to position the newly independent India into a gradual slide into the modern world, by introducing ‘secularism’ as India’s constitutional creed, he was so overwhelmingly and suffocatingly surrounded by hard-line Brahmins, even in his own Congress Party, that it is a miracle that the façade of secularism is still in vogue in India and the Hindutva hardliners too have eventually found shelter in secularism’s benign shadows.    

The shameless display of triumphalism shown by Saffron Brahmins, while spewing high moral slogans of unity and integrity in Indian society, is ample example of how the fascists have completely taken over the entire country, lock, stock and court hammer. The only alternative for the rest of the people, who are decidedly non-Brahmins, is to size up the danger of Brahmin conspiracies and boycott all Brahmin political groupings, including Congress and BJP. Muslims should vote even for a ‘kala chor’ (black thief in local parlance) rather than vote for Congress. They can hardly ignore how the earliest comments by a Congress leader, Chaturvedi, (a Brahmin), on a TV channel, came out applauding the verdict as facilitating a new phase of unity and integration among communities; apparently on Brahmin terms.

150 million Indian Muslims (15% of Indian population) should realize that India is as much their country, as it is of 30 million (3% Indian population) Brahmins and if they want to regain their stakes in their own country, they will have to reorganize and play the game by the rules of the game that is now being promulgated by the Brahmins, till the time the Brahmins are sidelined. And decidedly that is not a tall order, as far as US is posing as friend of India.

Ghulam Muhammed, Mumbai

ghulammuhammed3@gmail.com

<http://www.ghulammuhammed.blogspot.com>