Ayodhya title case

Defunct secularism

Print edition : December 06, 2019

December 5, 2009: At a candle-light vigil demanding action on the Liberhan Commission Report at Jantar Mantar in New Delhi. Photo: Shanker Chakravarty

Veering away from its original Nehruvian premise, constitutional secularism in India has, through the Ayodhya verdict, transformed itself into a gentle but sure Hindu majoritarian self-esteem.

Reversing the 2010 judgment of the Allahabad High Court on several important counts, and keeping a safe distance from the High Court’s Weltanschauung of orthodox and scriptural Hinduism, a five-judge bench of the Supreme Court performed on November 9 the last rites of a defunct secularism in Ayodhya. Penned in all likelihood by Justice Dhananjaya Chandrachud, though shown as jointly authored by the entire bench headed by the Chief Justice of India, the summit judgment leans heavily and visibly in favour of Hindus and awards the site underlying India’s most reputed mosque (built in 1528 and brought down in 1992) to the community which reveres Ayodhya as Muslims revere Mecca and Medina.

The demolition of the Babri Masjid, described paradoxically as an “egregious violation of the rule of law”, is finally complete. The Liberhan Commission, which examined the demolition over a span of 17 years, underscored the criminal conspiracy in the demolition and stated unequivocally that the then Bharatiya Janata Party Chief Minister of Uttar Pradesh, Kalyan Singh, and his Cabinet had allowed the Rashtriya Swayamsewak Sangh (RSS) to directly run the government. It also stated that the government had “systematically and in a pre-planned manner removed inconvenient bureaucrats from positions of power, dismantled and diluted the security apparatus and infrastructure, lied consistently to the High Court and the Supreme Court of India and to the people of India to evade constitutional governance and thus betrayed the confidence of the electorate”.

Nothing remains of the masjid on the ground since 1992 and nothing now remains of it in the moral consciousness of the judiciary, with the Supreme Court’s uncritical affirmation of the Archaeological Survey of India’s report that the mosque was built on the walls of a “large pre-existing structure of a Hindu religious origin” dating back to the 12th century. That obviously supplies the ultimate justification for the demolition of 1992 and the verdict of November 9, even though the Supreme Court takes pains to disclaim any such mental or moral connection.

Veering clearly away from its original Nehruvian premise, constitutional secularism in India has, through the Ayodhya verdict (the analysis no less than the conclusion), transformed itself into a gentle but sure Hindu majoritarian self-esteem. Dripping with quiet admiration for the testimony of the then 90-year-old Mahant Paramahans Ramachandra Das, the Supreme Court treats it as emblematic of the faith and belief of Hindus that the birthplace of Lord Ram is located under the central dome of the mosque.

“Once the Court has intrinsic material to accept that the faith or belief is genuine and not a pretence, it must defer to the belief of the worshipper,” holds the court. And this is precisely what the court has done, allowing itself to be dominated by the tenacity and persistence of Hindu belief and awarding not only the outer courtyard but even the stiffly contested inner courtyard, or sanctum sanctorum, to Hindus. The outer courtyard was awarded to them because “the Hindus have been in exclusive and unimpeded possession” of it. The inner courtyard was awarded to them despite there being no such evidence respecting it and in spite of the finding that “it has been a contested site with conflicting claims of the Hindus and Muslims”. Heads I win, tails you lose.

‘Decree of faith’

Contradicted as it patently is by its own repeated appraisal of the evidence, holding the inner courtyard to be truly disputed by the two communities while the outer courtyard falls under the “clear possessory title” of the Hindus, the final decree passed by the Supreme Court, granting both the outer and inner courtyards exclusively to Hindus, is a dramatic example of what Romain Rolland described as the “annexationist propaganda of faith”. Replace “propaganda” with “decree” and the phrase fits the verdict with discomfiting exactitude.

But for the fact that the five-judge bench has consciously done what it has and on purpose, the contradiction between the court’s evidentiary finding and its decree is so stark as to qualify, even in the most technically legal sense, to be described as an “error apparent on the face of the record”, a ground for review under the Code of Civil Procedure.

“Ayodhya is a storm that will pass,” wrote Justice S.P. Bharucha in 1994 in Ismail Faruqui’s case, dissenting along with Justice A.M. Ahmadi. “The dignity and honour of the Supreme Court cannot be compromised because of it.” The prophecy has proved more brave than true. The court’s carefully crafted unanimous verdict of November 9 severely compromises its secular credibility. Wilting before the storm, and like the polity outside, the court has taken sides.

“Called on to determine the legal consequences arising out of a thousand years of prayer, contest, construction and destruction at the disputed site” in Ayodhya, the five-judge bench cast wholly unwarranted doubt on over three centuries of that history (from 1528 to 1856-57) and read away another almost half a century of traumatic developments (1949 to 1992) to translate Hindu faith into law.

Though the case of the Muslims is that the mosque was constructed in 1528 by or at the behest of Babur, holds the court, “there is no account by them of possession, use or offer of namaaz in the mosque between the date of construction and 1856-57” when, following a communal riot, the British erected a railing bifurcating the inner courtyard from the outer courtyard.

Woven seamlessly into the fabric of the judgment, this finding truly stands history on its head. Hated by revanchist Hindus as a symbol of Mughal oppression and subjugation, and razed to the ground on December 6, 1992 for that reason, the Babri Masjid, it now turns out, was constructed only for construction’s sake. Muslims, we are now told, never actually entered the masjid for 325 years, for “no records are available with respect to possession” up to 1860. The mosque was real and substantial enough, in other words, to have been viscerally hated and demolished 464 years after it was constructed. But it was no more than a teasing illusion, a mirage so far as actual occupation was concerned.

Echoing the leading opinion of Justice Sudhir Aggarwal in the Allahabad High Court, the Supreme Court contraposed this supposed non-possession or non-use of the Babri Masjid by the Muslims to the physical structure of the mosque. The physical existence of the mosque entails no presumption or inference that it was used as a mosque.

Hidden in the womb of this judicial approach or understanding is an incipient doctrine that would result in almost every other place of religious worship—or physical structure of worship, if you will—being opened up for endless legal scrutiny and challenge. Mosques, gurdwaras, temples and churches must be continually proven to be so, on pain of judicial invalidation of their intrinsic object and character embodied in their construction. Religious architecture would lose its sanctity, if not its raison d’etre, and spirituality would be submerged in chaos.

“The claim to title [of the disputed site],” holds the Supreme Court, “will have to be judged from the perspective of long and continued possession.” That would have passed muster as conventional wisdom but for the fact that “possession” here is divorced not only from the physical structure of the Babri Masjid but also from all notions of fairness and legality.

Even such an illegal and criminal act as the surreptitious installation of the idols below the central dome of the mosque in December 1949, factually confirmed by the five-judge bench, does not interrupt such possession. Neither illegality nor crime alters in the least the Supreme Court’s appraisal of the evidence relating to possession resulting in declaration of title, or “possessory title” so called.

1949 idol installation

The 1949 incident of installation of the idols, holds the court, “led to the desecration of the mosque and the ouster of the Muslims otherwise than by due process of law”. This does not deter it from holding, in the same breath, that the “events of 22/23 December 1949 indicate that possession of the inner courtyard was a matter of serious contestation often leading to violence by both parties and the Muslims did not have exclusive possession over the inner courtyard”.

A more amoral view of possession, fundamental to the November 9 verdict, would be difficult to find in the annals of judicial history.

“The disputed site has witnessed a medley of faiths,” observes the Supreme Court graciously towards the end, in paragraph 769, pointing to the “co-existence of Hindu and Muslim practices, beliefs and customs”. The religious and architectural tradition associated with the erstwhile structure had a “blend of Hindu and Muslim elements”, which were “symbols of a syncretic culture”. The “distinctive features” of the site, it adds, “embodying both Hindu and Islamic traditions led to the creation of a space with an identity of its own”.

Strongly secular words, these, but why then has the court awarded this entire site exclusively to Hindus instead of maintaining its distinctive syncretic identity and awarding it jointly to both the communities or to neither of them?

The answer to that question lies buried in the debris of December 6, 1992.

Anupam Gupta is Senior Advocate, Punjab and Haryana High Court, and formerly counsel for the Liberhan Commission.