By Asghar Ali Engineer
(Secular Perspective October 16-31, 2010)
The much awaited judgment of Lucknow Bench of Allahabad High Court in the title suit filed by Sunni Waqf Board, Nirmohi Akhara and others was at last delivered and has been welcomed by some and criticized by others, mainly by litigant parties. Those who want to see the controversy end for once and all are arguing that the judgment will help bring about resolution of the dispute as all three parties (Ram Lalla Idol has been treated by the judgment as a legal entity). Now Hindus can build a temple and Muslims a mosque, if they so desire and India can move on.
After all the controversy has to end somewhere and India should move on. Had the judgment achieved that it would have had some merit. But both the litigants are far from satisfied and want to challenge it in the Supreme Court. The judgment has utterly failed to bring about any reconciliation. And apart from this the judgment has set a dangerous precedent.
While peace and reconciliation is very important if it is achieved at the cost of Constitutional democracy and rule of law, it can do more harm than achieve such objective, if it succeeds. The judgment is based on faith, not on law. The two judges, without any historical proof and law of the land straightway invoked faith of Hindus that Ram was born at that place and that a 12th century temple existed there (while admitting that they do not know anything about history and archaeology) and given land to Ram Lalla on one hand, and Nirmohi Akhara on the other and as if as a concession to Sunni Muslim Wakf Board also.
Many legal experts, therefore, apart from the litigants, have strongly criticized the judgment and feel now only the Supreme Court may examine the whole dispute strictly from legal and constitutional viewpoint and deliver the final judgment though it may take a long time. Justice Khan, the third judge, though feels there is no proof of any temple being there yet felt that in the interest of peace and reconciliation the land may be divided among three litigants.
Thus all three judges have invoked values of peace and reconciliation rather than constitutional values of democratic India. Law is and must be indifferent to the faith of litigants and even of judges and the judgment, in a democratic country like India which has maintained its independence of judiciary and constitutional values for last sixty years, must be based only on law without any compromise.
It is for the first time that High Court Judges have invoked faith disregarding historical facts and legal values and such invocation of faith can prove injurious to rule of law. It is not Court’s concern whether reconciliation takes place or not, it has to function strictly accordingly to law. It is different thing if it appeals to the litigants to find solution through negotiations rather than waste their time and resources in fighting in the court and it is for litigants to decide whether to accept the court’s appeal or not. If they do not the judges have to consider law as supreme and deliver their judgment.
Those who are celebrating the judgment today as victory of peace and an end to a long standing dispute, are either unaware of long term consequences of such a judgment or do not care for our constitutional democracy. Whatever their reason for celebration, either way it is setting dangerous trend in court of law. Tomorrow other judges motivated by their faith may use this judgment as a precedent and deliver other judgments invoking faith. One judgment often becomes precedent for subsequent judgments.
Thus, stretching the augment one can say as in a democracy after all numbers count and so faith of majority community will play greater role than faith of minority community and court of law will thus become majoritarian in their attitude and all the legal values and protection of minorities and their faith in the constitution may be ultimately subverted. This judgment must be seen in this light if we care for majesty of law and our Constitution.
While faith is very important for individuals and communities constitution is of seminal importance for the country and the nation. India is a country of great diversity and multiple faiths and Constitution guarantees freedom of faith and conscience for all, law is as important for the nation as faith to a community. And the Allahabad High court judgment must be seen in this perspective.
Even Hinduism is not a homogenous religion. Today among Hindus are counted, among others, Dravidians of South also. But Dravidian traditions are far different from Aryan traditions. If one goes by Karunanidhis statement he has complained of Aryan deities being imposed on Dravidian ones. Thus even invoking faith of Hindus in the Allahabad High Court judgment is problematic. Apart from secular Hindus having faith in constitutional values, other Hindus having different culture and linguistic roots also may not subscribe to same faith. Also such tendency of invoking faith may generate pressure on minorities in general, and certain religious minorities in particular, to give in to majoritarian values.
However, having said all this it does not mean that such disputes should not be solved through dialogue, negotiations and mutual agreements. No one will be more happy than myself if the Ayodhya dispute is resolved through dialogue and in the spirit of give and take. It is indeed a great initiative on the part of Shri Hashim Ansari, one of the main litigants who has been fighting this case since early sixties to meet Hanumangarih temple’s main Pujari Shri Gyan Das after the judgment to intervene with Nirmohi Akhara and put an end to the whole controversy through negotiation.
India is a great democratic country and such disputes about the past either must not be invoked at all, as future is much more important than the past, or having invoked must resolve it through mutual understanding so that both the sides should not feel a looser. It is very dangerous that politicians should raise questions of history and use it for their political objectives. The BJP has done precisely that.
It is also regrettable that those who committed crime of demolishing the mosque which was both unlawful, unconstitutional and undemocratic and also against tenets of Hindu faith and yet they are celebrating victory of faith over law. This is even more dangerous. The culprits of demolition have not been yet punished which is another violation of Indian Constitution. Least one can expect is to punish whoever the guilty is or are.
Here in such cases civil society must play vibrant role; our intellectuals, historians, religious leaders litterateurs, peace activists and all those who stand for democratic and constitutional values must come forward and put pressure on both sides to carry on meaningful dialogue to find solution outside four walls of legal chambers to resolve this controversy.
Earlier also Shankaracharya of Kanchi Kamakoti Peetham had taken initiative along with Muslim personal Law Board in early 2000 to resolve the controversy but VHP and others gheraoed him and stopped him from doing so. This time Shankaracharya of Jyotish Peeth and Dwarka Peeth Swami Swaroopanand Saraswati has once again indicated his intention to do so and this should be heartily welcome and members of Muslim Personal Law Board should join hands with him.
It is also heartening and we must duly praise the efforts of people of India to reject street violence decisively and stand for peace. Our common people have truly stood by peace and very firmly. They have displayed much more wisdom than our politicians whose lust for power never ends.
Along with this we should also recognize the fact that Muslims of India have shown great initiative for peace and practically every Imam in every mosque appealed for peace consequently for two Fridays preceding the judgment, told Muslims to accept the judgment whatever it is in favour or against. Contrast this with mid eighties and end of eighties when Muslims were greatly agitated for Babri Mosque.
Our democracy has indeed made them realize that it is in democracy and secular values lie their future and they must assert themselves for peace and prosperity of people of India together. Confrontation will bring only violence and destruction. All Hindus and Muslims and others have shown great solidarity this time to maintain peace marginalizing even extremists who used to issue statements in very shill tone. They are issuing statements in much more muted tones. It is people of India who have made them behave. I, therefore feel civil society must assert itself and give direction to our political leaders how to behave.
If such initiative could be taken before the highest court’s doors are knocked it will be much better. Only peace is our future and it civil society alone which can ensure this in a democracy.
Centre for Study of Society and Secularism, Mumbai.