Faith vs law

Print edition : January 05, 2018

N.A. Palkhivala’s critique of the former Prime Minister P.V. Narasimha Rao’s idea of seeking the Supreme Court’s verdict on the Ayodhya issue on the basis of ancient history.

“The courts can decide only questions of fact or of law. They cannot decide, and should never be called upon to decide, question of opinion or belief or political wisdom. It is not the court’s role to be an extended arm of the executive. Public opinion of public beliefs may weigh with the executive in shaping governmental policies. But it is not for the court to decide whether there are cogent grounds for opinions or beliefs which the people may choose to entertain. …

“It is to my mind absurd to suggest that the highest court in the country should be asked to decide question of history or archaeology. But the government has now asked the Supreme Court to give its opinion under Article 143 of the Constitution, whether a temple existed centuries ago on the site where the Babri Masjid stood before. …

“Historians have expressed widely divergent views on the issue whether there was a pre-existing temple on the site on which the mosque was built by Babar. Much less are they agreed that Ram was born at that place. There is even a greater difference of opinion on the question whether Ram actually lived as a human being or he was the supramental ideal created by mythology to represent the perfect man. To ask the Supreme Court or the Allahabad High Court to decide such questions of mythology or history, or mixed questions of mythology and history, is to bear witness to the bankruptcy of our political institutions.

“It is a measure of the degradation to which we have reduced our third-rate democracy that we have lost all sense of propriety, and are not only willing but eager to call upon the courts to decide questions of opinion or belief, history, mythology, or political expediency. Never in the history of any country have courts been approached to deal with the type of questions which are now suggested as fit to be referred to the courts in connection with the incidents at Ayodhya.

“The consequences of asking the Supreme Court or the Allahabad High Court to deal with the type of questions which are suggested for reference would be disastrous in the long run.

“It would thrust upon the court a task for which it is not qualified by training or experience. Courts can deal with questions of law or of fact. They are not qualified to deal with questions in other fields like archaeology or history. A judge can decide only upon documentary evidence or evidence given by a witness as to what he himself saw or heard. It is well established that hearsay evidence is inadmissible in a court of law under the Indian Evidence Act. … If the court is pushed into the political arena, it would impair the image and undermine the status of the court. …large organisations with millions of followers have officially and openly stated that they would not be bound by any verdict of the court of law. The question is not whether they are right or wrong in adopting this attitude. The real point is that if a certain issue essentially involves a question of opinion or belief, the people are entitled to say that a court of law cannot deal with the issue, and if it does its opinion would be without jurisdiction and not binding on the group which is adversely affected…

“The Supreme Court has to decide the issue whether there was a pre-existing temple on the disputed site before the mosque came into existence. Even a finding on this single point issue would leave at large various other questions which are bound to crop up, irrespective of the court’s finding on the question referred for its consideration. … Should any religious place of worship be razed to the ground because a structure pertaining to another religion stood in its place before?

“Archaeology is the study of the art, customs and beliefs of ancient times. It can afford a ground for a belief or an opinion but never for universal certainty. Cannot two minds come to different conclusions on the same archaeological evidence? How can a conclusion reached by a judge be binding on people whose opinions or beliefs go counter to those of the judge? Does it help in any way to confuse separate and distinct questions? Whether Rama was born at a particular place is wholly distinct and different from the issue whether a temple existed at that place. Therefore, are we in any way dislodging the beliefs of those who hold a certain spot to be the birthplace of Rama by saying that no temple existed there? …

“There are times in a country’s history when inaction and silence can be a culpable wrong, and we are living in such times. The nation is standing on the escalator of anarchy and chaos.”

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