By Tahir Mahmood
July 12, 2019
“Law is an ass” and “justice is blind” are oft-quoted proverbial expressions. The asininity attributed to the law and blindness to justice indicate, inter alia, that the ideal solution to every dispute may not lie in the dry bones of law or the blindfold of justice — reconciliation and compromises in a spirit of mutual give and take may yield more gratifying results. The impossibly complex temple-mosque dispute arising from the holy city of Ayodhya has sunk into a triangular quagmire of religion, history and law. A community conflict turned into an imbroglio, it belies a strictly legal solution acceptable to all. In such an intricate situation, reconciliation will be the most workable and ideal way to ensure lasting peace and social harmony.
Legislation, governmental action and judicial intervention till date have failed to bring about an equitable solution. When the controversy was at its peak pointing out to disastrous possibilities, a parastatal body had proposed the enactment of a law to seal and render unalterable the character of every religious place as it was on our Independence Day. The government of the day did put on the statute book a Places of Worship (Special Provisions) Act in 1991, but felt constrained to exclude from its purview the Ayodhya shrine, which, in its judgement, had by then reached a point of no return.
The Ayodhya case before the Lucknow court, which had begun as a title suit but ended up with a partition decree, did not end the conflict. Nor did the Liberhan Commission report, produced after 17 years of investigation at a whopping cost, on which the then government could take no action beyond the ritual tabling in Parliament. Several issues relating to the matter reached the apex court, both before and after the demolition of mosque, but the judicial handling of none of these could salvage the situation. The dispute remains unresolved and with each passing day, is becoming more and more complex to be settled strictly in accordance with law.
The disputants must not lose sight of how the apex court has thus far looked at the issue. In a pre-Independence case, the Privy Council had endorsed a Lahore High Court ruling that “the view that once consecrated a mosque always remains a place of worship as a mosque is not the Muhammadan law of India as approved by the Indian courts” (Masjid Shahidganj 1940). Legally, Privy Council decisions remain intact unless dissented to by the apex court. Far from striking a discordant note, the Supreme Court cited it in its hitherto most elaborate judgment on the dispute (Ismail Faruqi 1995). It even added a note that a mosque is “not an essential practice of the religion of Islam” and has since not agreed to relook at the contentious observation.
Erection of a temple on the disputed site is indeed a fait accompli and dreaming of retrieval of the demolished mosque is crying for the moon. Carrying the emotional baggage of the past in perpetuity and continuing with the perennial blame game will serve nobody’s interest. The parties before the court and their respective communities will do well to reach a compromise on reasonable terms, the sine qua non of which should be burying the hatchet with a solemn resolve not to let the unpleasant history repeat itself elsewhere.
Adopting the “forgive and forget” policy for the sake of ensuring peace will not be repugnant to the religion of either community. Islamic texts and history indicate that making compromises on reasonable terms will neither be unIslamic nor lower the prestige of the community. On the contrary, it will be quite in keeping with Quranic teachings and recorded policies of the Prophet. Fa-Man ‘Afa Wa-Aslaha Fa-Ajruhu Alallahi — those who condone and reconcile, for them there is reward from God — proclaims the Quran (XL: 42). The verse is preceded by a reference to the practice of meeting evil with evil and concludes with the assertion of divine dislike for all evildoers. The message of “Al-Sulhu Khairan” (reconciliation is best) is found in the words or implications of several verses of the holy book, revealed in different contexts including familial discords.
The explicit and implicit injunctions of the Quran on the advisability of condoning and reconciling in conflict situations are highly significant for the ongoing efforts for a consensual settlement of the Ayodhya dispute. So are numerous historical instances in which the Prophet had preferred compromise to conflict. He loved mediation and often played the role of mediator to end hostilities between warring groups. In his youth, he had participated in the Hilf-ul-Fudhul known to western scholars as “League of the Virtuous” — an alliance of Arab tribes aimed at ensuring peaceful coexistence — and in his later years often expressed his predilection for being part of more such peace-building measures
In Makkah, after establishing Islam as a new monotheistic faith, the Prophet invited religious communities to get united on the bare minimum in common in their faiths. On migrating from the troubled waters of his birthplace to the sociable city of Madinah, he secured the concurrence of all communities for a pact that came to be known as Misaq-e-Madinah, a charter of participative coexistence meant to exterminate centuries of inter-tribal rivalries. The most prominent reconciliatory agreement which the Prophet entered into was the celebrated Sulh-e-Hudaibiya — Hudaibiya Agreement — enveloping a 10-year plan in which, with a view to buying lasting peace, he had agreed even to some conspicuously lopsided terms.
All those wishing for an early resolution of the inordinately stretched Ayodhya conflict should take the time by the forelock and wisely avail the chance furnished by the apex court for a friendly extrajudicial settlement. All right-thinking citizens should wholeheartedly cooperate with the court-appointed mediation committee of three eminently well-meaning members. There is no wisdom in flogging a dead horse and missing out on this singular opportunity by obstinacy and intransigence.
Tahir Mahmood is distinguished jurist chair and professor of eminence, Institute of Advanced Legal Studies, Amity University.
Source: The Indian Express