Vajpayee and the Constitution

Print edition : December 23, 2001

With his recent utterances on Ayodhya, Atal Behari Vajpayee has become the first Prime Minister in India's history to have ranged himself on the side of one particular community, in clear violation of his oath of office.

AS S. Jaipal Reddy said in a brilliant speech in the Lok Sabha on December 13, Prime Minister Atal Behari Vajpayee's infamous statements on December 6 represented "not a slip of the tongue, not even a Freudian slip. It was a slip of the mask". A Prime Mi nister who says that "the construction of the Ram temple in Ayodhya is an expression of national sentiment which is yet to be fulfilled", (emphasis added, throughout), reveals his communal outlook. These very words, bar the italicised ones, were r epeated later that very day, and also the next day in a new formulation: "The entire country wants the temple. Muslims do not oppose it. The issue is how to make it and where." Note that he did not say it is for the courts to decide that.

Frenzied kar sevaks chipping away at the outer wall of the Babri Masjid.-

Vajpayee's assertion that Muslims do not oppose it is palpably untrue, as is his plea of December 6 that the three Union Ministers, L. K. Advani, Murli Manohar Joshi and Uma Bharti, "were in Ayodhya to protect it (the Babri Masjid, which the RSS/BJP goon s demolished that day) and not to demolish it."

These two false statements touch his credibility. But the false claim that the construction of a Ram temple is an expression of "national" feeling not only affects his credibility, but brings into question his and his government's fitness to remai n in office. For it violates his oath of office and two rulings of the Supreme Court. President K.R. Narayanan cannot ignore this.

On January 7, 1993, the President promulgated the Acquisition of Certain Area at Ayodhya Ordinance, 1993 (replaced by an Act in April 1993) and simultaneously referred to the Supreme Court, for its advisory opinion, under Article 143(1) of the Constituti on, a single question: "Whether a Hindu temple or any other Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid... in the area on which the structure stood?"

It was an obscenely improper question to ask. Assuming a Hindu temple did exist before the mosque was built in 1528, did that justify the mosque's demolition in 1992? By this logic, ancient monuments the world over would invite demolition. As Macaulay as ked, "Is it not perfectly clear that, if antiquated claims are to be set up against recent treaties and long possession, the world can never be at peace for a day? The laws of all nations have wisely established a time of limitation, after which titles, however illegitimate in their origin, cannot be questioned." He proceeded to cite instances of such episodes in history. (The essay on Frederick the Great, in Critical and Historical Essays; Longmans, Green, 1877; page 666).

The Congress government of P. V. Narasimha Rao was not only complicit with the Bharatiya Janata Party in the demolition of the mosque, as Union Home Secretary Madhav Godbole's memoirs establish (Unfinished Innings; Orient Longman, 1996; pages 332- 418), but went on to reward the wrong-doers in two days. It allowed a ramshackle temple to be erected and remain undemolished despite Godbole's advice and Jyoti Basu's pleas. It, next, referred a loaded question to the Supreme Court, which took away the legal plea of limitation from Muslims, aborted the civil suit on title to the land pending before the District Judge, Faizabad, and sought to pave the way, in the event of the expected answer in the affirmative, for the construction of the temple. Note t hat this would have this followed even if no temple had stood on the site of the mosque. It would have sufficed if a temple existed anywhere "in the area on which the structure stood".

While on this point, it bears recalling that the demolition could not have taken place had the Bench of the Supreme Court which was hearing contempt notices against the Uttar Pradesh government and other pleas for six months preceding the demolition, int ervened, as Attorney-General Milon Banerjee and other counsel repeatedly begged of it. The Bench comprised Justices M. N. Venkatachaliah and G.N. Ray (vide the writer's article "CJ & Ayodhya", The Statesman, January 18-20, 1995). Venkatachaliah no w presides over the BJP regime's Constitution Review Commission. Very shortly before the demolition he made anxious inquiries about facilities for the kar sevaks.

The Bench which heard the President's Reference and the petition challenging the Act comprised the Chief Justice of India M. N. Venkatachaliah and Justices J.S. Verma and G.N. Ray who delivered the majority judgment and Justices A.M. Ahmadi and S.P. Bhar ucha who dissented and held that "the Act and the Reference... favour one religious community and disfavour another, the purpose of the Reference is, therefore, opposed to secularism and is unconstitutional".

The majority differed with this view. But it did strike down as unconstitutional Section 4(3) of the Act, which provided that all suits and legal proceedings in respect of the title to the land "shall abate". In 1975, the court had unanimously struck dow n a law which vacated the Allahabad High Court judgment in Indira Gandhi's election case and sought to abort the appeal in the Supreme Court. Having struck down Section 4(3), the majority ordered that "the pending suits and other proceedings... stand rev ived for adjudication of the dispute therein." (Ismail Faruqui vs. Union of India (1994) 6 SCC 360 on page 423). This judgment would also render void any legislation to build a temple as the BJP had long demanded. So Vajpayee's state ment on December 14 that he would abide by the court's verdict is no concession at all. He had once favoured legislation as a solution. That is no longer possible.

The majority explicitly recognised the existence of a "dispute" between two sides belonging to different communities. What the Prime Minister of India has done is to treat one side as "national" and the other as not. A partisan, communal demand has been lauded by the Prime Minister as "national", whereas his oath of office binds him to "do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or illwill" (Article 75(4), Third Schedule). This is the first time in the nation's history that a Prime Minister has openly ranged himself on the side of one community, not the nation entire. No wonder his reaction to the excesses against Christians was so tame (he called for a national debate on r eligious conversions).

VAJPAYEE'S statement was made after full deliberation. On December 1, he had hosted a dinner for the Rashtriya Swayamsevak Sangh chief K.S. Sudarshan, its general secretary, two joint secretaries, past and present presidents of the BJP, Kushabhau Thakre and Bangaru Laxman, and L.K. Advani (The Hindu, December 2). On December 9, he said: "I have said what I had to say and if there's need to say more, I will say in Parliament." His statement in the Lok Sabha on December 14 made no amends. He reiter ated for the third time that a Ram temple at Ayodhya is "connected with national sentiment... can't a temple be built on the basis of national sentiment?"

The National Democratic Alliance (NDA) disgraced itself by its statement on December 10. Instead of questioning Vajpayee on his statements, it was content to record his "anguish" over the incidents of December 6, 1992. The NDA believes that the Supreme C ourt is "presently seized" of the case "over the title of (sic) the disputed land in Ayodhya." That case has been before a three-Judge bench of the Allahabad High Court in Lucknow for the last seven years. The Supreme Court is, however, "seized" of a not ice of contempt of court, which it issued as far back as February 4, 1994 to Advani, Joshi and others for their alleged complicity in the demolition of the mosque.

Pending before Sessions Judge Jagdish Prasad Srivastava for the last three years is a criminal case against Advani, Joshi, Uma Bharti, Bal Thackeray and many others. The Central Bureau of Investigation (CBI), after examining over 800 witnesses, filed a c harge-sheet on October 5, 1993, in which it cited details in support of its charge of conspiracy to demolish the mosque. A Special Judicial Magistrate, Mahipal Sirohi, found that a prima facie case did exist and on August 27, 1994 committed the ac cused to stand trial in the Sessions Court. The Sessions Judge, J. P. Srivastava, upheld this finding and framed charges on September 9, 1997. His 61-page order has been published by the Communist Party of India (Marxist) in a pamphlet entitled "Ayodhya conspiracy of Saffron Brigade Unmasked".

Thus, two courts have upheld a CBI charge-sheet and found that it established a prima facie case. Judge Srivastava duly framed the charges. Section 228(2) of the Code of Criminal Procedure requires that the charges should be read out to the accuse d and their plea of guilt or otherwise recorded. The accused, including the three high-minded Ministers, have avoided that by absenting themselves and by filing revision applications in the High Court, thus preventing the commencement of the trial.

To save their skin, our high-minded Prime Minister coined a new doctrine of grave consequences. A Minister will resign only if he is guilty of corruption or any offence relating to his office. The NDA endorsed this pernicious doctrine - "an issue that ha s no bearing on their constitutional duties". In recent years three British Ministers - Cecil Parkinson, David Mellor and Nicholas Fairbairn - resigned following personal lapses. Our Ministers are facing far worse charges.

Vajpayee's assertion on December 6, 2000 ("national sentiment") is a belated reversal of his admission on April 6, 1989 that "Hindus were the rightful claimants of the site". He added that he spoke not as a BJP leader but as a swayamsevak and a Hindu.

We are faced with his ringing declaration of intent - the project is yet to be fulfilled. This brings him into conflict with another ruling of the Supreme Court upholding the dismissal on January 15, 1993 of the BJP governments in Madhya Pradesh, Rajasth an and Himachal Pradesh, in the wake of the demolition of the mosque, because they had supported the Ram Janmabhoomi movement.

Justice B. P. Jeevan Reddy ruled: "If any party or organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution it would certainly be guilty of following an unconst itutional course of action" (S. R. Bommai vs. Union of India (1994) SCC on page 236, para 310).

The Judge proceeded to observe:

"Shri Parasaran is right in his submission that what happened on December 6, 1992 was no ordinary event; that it was the outcome of a sustained campaign carried out over a number of years throughout the country and that it was the result of the speech es, acts and deeds of several leaders of BJP and other organisations. The event had serious repercussions not only within the country but outside as well. It put in doubt the very secular credentials of this nation and its government - and those cred entials had to be redeemed. The situation had many dimensions, social, religious, political and international. Rarely do such occasions arise in the life of a nation. This situation was an extraordinary one, its repercussions could not be foretold that t ime. Nobody could say with definiteness what would happen and where? The situation was not only unpredictable, it was a fast-evolving one. The communal situation was tense, it could explode anywhere at any time.

"On the material placed before us, including the reports of the Governors, we cannot say that the President had no relevant material before him on the basis of which he could form the satisfaction that the BJP governments of Madhya Pradesh, Rajasthan and Himachal Pradesh cannot dissociate themselves from the action and its consequences and that these governments, controlled by one and the same party, whose leading lights were actively campaigning for the demolition of the disputed structure, cannot b e dissociated from the acts and deeds of the leaders of BJP.

"In the then prevailing situation the Union of India thought it necessary to ban certain organisations, including the RSS, and here were governments headed by persons who 'swore by the values and traditions of the RSS' and were giving 'overt and covert s upport to the associate communal organisation' (vide the report of the Governor of Madhya Pradesh). The Governor of Himachal Pradesh reported that 'the Chief Minister himself is a member of RSS'. The Governor of Rajasthan reported that the ban on the RSS and other organisations was not being implemented because of the intimate connection between the members of the government and those organisations. The three Governors also spoke of the part played by the members of the government in sending and welcomi ng back the kar sevaks. They also expressed the opinion that these governments cannot be expected, in the circumstances, to function objectively and impartially in dealing with the emerging law and order situation, which had also the ominous makings of a communal conflagration. If the President was satisfied that the faith of these BJP governments in the concept of secularism was suspect in view of the acts and conduct of the party controlling these governments and that in the volatile situation that developed pursuant to the demolition, the government of these States cannot be carried on in accordance with the provisions of the Constitution, we are not able to say that there was no relevant material upon which he could be so satisfied." (Pages 294-5; para 433).

There is no provision for President's Rule at the Centre. But neither the President nor the Election Commission can ignore this ruling of the Supreme Court.

The question brooks no evasion. If the construction of a Ram temple at Ayodhya was, indeed, necessary "to save the honour of the Hindu community", as Vajpayee said on May 12, 1991, why did he compromise with that "honour" and offer to "freeze" this issue - along with two others (Article 370 and the uniform civil code) on May 28, 1996 in order to save his 10-day old regime and renew the "freeze" in 1998 and 1999 to form the NDA's ramshackle regimes?

Sushma Swaraj spoke the truth in Bhopal on April 14, 2000. The Ram Janmabhoomi movement was "purely political in nature and had nothing to do with religion". Or, one might add with honour and decency, it boosted the BJP's two seats in the Lok Sabha in 19 84 to 85 in 1989 and 180 in 1998 and 182 in 1999.

The lemon has been squeezed for all it was worth, cynically enough. It can neither be used with any result nor discarded. The BJP is hoist with the petard on which the RSS has placed it. The two will stoop to do anything to preserve and amass power and V ajpayee will merrily go along with both - as he has all these years.

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