By Tahir Mahmood
November 11, 2019
The writer is distinguished jurist chair and professor of eminence, Institute of Advanced Legal Studies, Amity University.
The Ayodhya verdict deviates from some established juridical traditions. A 930-page judgment signed by five learned judges without disclosing its individual authorship, it has a 116-page addendum penned by one of them incognito, containing his “separate reasons” on one of the case issues.
Noting that the “disputed site has been a flash point of continued conflagration over decades”, the Supreme Court has chronicled related developments on a year by year basis since 1856 and acknowledged the illegality of the monumental transgression occurring in the holy city in December 1992.
The operative part of the judgment rules in favour of building the temple on the disputed land as desired by the majority community, enjoining the central government to facilitate it by taking prompt action in terms of the Ayodhya Act of 1993. For those aggrieved by the demolition of the mosque in 1992, it directs earmarking of a “suitable” five-acre plot of land to be allotted to UP’s Sunni Waqf Board, either by the central government out of the land acquired under the Ayodhya Act 1993 or by the UP government at a “suitable prominent place” in the city, the choice between these alternatives to be determined by the two governments in mutual consultation.
I have been part of the reconciliation process in the matter and was consulted both by the court-appointed mediation committee and individually by its members. On October 4, when Sunni Waqf Board chairman Zufar Farooqui wrote to me seeking my opinion on the advisability of accepting the committee’s proposals, I had replied, “my convinced opinion is that the Board should convey to the court its acceptance of mediation committee proposals”. After securing concurrence of some other prominent persons, the Board conceded and the committee conveyed its consent to the court. Finding the proposed agreement conditional and not signed by all disputants, the court did not treat it as a “binding or concluded agreement”. Though the Court’s judgment is more or less along the same lines, an extrajudicial settlement, in my opinion, would have been graceful, and, potentially, more fruitful.
The Court has devoted one full part of the judgment to Places of Worship (Special Provisions) Act 1991, which under the proposed settlement had to be fortified and strictly enforced. Enacted by the government of the day at a time when the mandir-masjid tussle in Ayodhya had assumed alarming proportions, this Act had rendered unalterable the character of all religious places in the country, as on the day of the country’s independence. The Ayodhya dispute was, however, inexplicably excluded from its purview — but for that unwarranted exception, the course of events to come could have been different.
Given more teeth, this Act may ensure that the Ayodhya melodrama is not repeated elsewhere. Bearing this in mind, the Court said: “The State has by enacting this law enforced a constitutional commitment and operationalised its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution.” Clarifying as to who all are bound by this Act, the Court said: “The law addresses itself to the State as much as to every citizen of the nation. Its norms bind those who govern the affairs of the nation at every level.” And, the Act must, henceforth, be meticulously enforced throughout the country.
The Ayodhya case decided by the apex court was technically between the contesting parties before it, but the unsavoury dispute has, from the very beginning, been seen as a tussle between the two largest communities of the country, both deeply religious in their outlook. Jesus Christ had enjoined people to “render unto Caesar things that are Caesar’s and unto God things that are God’s”. But in our country, God has a lot to do in Caesar’s domain. The founding fathers of the Constitution had, therefore, opted for a quasi-secular state, legally swearing by secularism, but at the same time well accommodating religious sensitivities. Acknowledging this, the apex court had once observed that, “It is only in a qualified sense that India can be said to be a secular state.” (St Xavier’s, 1974). In such a country, the apex court — confronted with an awfully sensitive matter – has to opt for a course of action that does not plunge the nation into a tsunami of communal tensions.
The court has said that the Waqf Board will be “at liberty” to build on the allotted plot a new mosque “with other associated facilities”. But I am not sure if the self-respecting community the Board represents should let it avail this “liberty”, generously granted by the court. Finding the judgment lopsided, some community leaders are contemplating further legal action. They would better act on the great poet-philosopher, Allama Iqbal’s counsel: “Na Rah Minnatkash-e-Shabnam Nigun Jam-O-Subu Kar Le” (Don’t take petty obligation and have no pious hopes). As the Court has arrived at the present decision after “navigating through the layers of complexity of the case”, a decision to continue with the legal battle will, in all probability, be an exercise in futility.
The nation is indeed tired of the sickening mandir-masjid dispute which has been perpetuating communal tensions and shattering social harmony. We must now avail whatever chance the Court has provided to bury the hatchet and hope for sustaining bonhomie in future.
Tahir Mahmood is former chairman of National Minorities Commission and member, Law Commission of India
Original Headline: Nation is tired of mandir-masjid debate, let’s use this moment for a fresh start
Source: The Indian Express