Impossible agenda

The BJP’s long-running pledges for the abrogation of Article 370, for a Ram temple in Ayodhya, and for a uniform civil code are constitutionally impossible to fulfil, politically divisive and morally outrageous.

Prime Minister Jawaharlal Nehru with National Conference founder Sheikh Abdullah, an undated photograph. Protracted negotiations between them led to the institutionalisation of the State's relationship with the Union as laid out in the Instrument of Accession of 1947 and to the emergence of Article 370.

THE Bharatiya Janata Party’s (BJP) 2014 election manifesto provides a good opportunity for nailing to the counter the deception it has cynically practised over the years in respect of its most prominent pledges, namely, to abrogate Article 370 of the Constitution, build a temple dedicated to Ram on the site of the Babri Masjid, which its men demolished on December 6, 1992, and legislate a uniform civil code aimed at wiping out Muslim Personal Law.

These pledges will continue to haunt Prime Minister Narendra Modi because the Rashtriya Swayamsewak Sangh (RSS) and his partymen will demand their fulfilment now that the BJP is not dependent on slippery allies for its survival in office. That is when its lawyers will do their homework and tell the Prime Minister truths they should have told party leaders years ago. The pledges are constitutionally impossible to fulfil; politically divisive and destructive; and morally outrageous to the conscience of every right-thinking person.

ARTICLE 370 Now that plebiscite in the State of Jammu & Kashmir is ruled out, its history and its terms should be considered objectively and the falsehoods retailed in the past should be discarded. For instance, to silence the British, Krishna Menon repeatedly warned them that the State had acceded to India under their law, the Indian Independence Act, 1947. This, as he well knew, was false. It acceded under the Government of India Act, 1937, which was adopted by the government of independent India to serve as the country’s interim Constitution until the Constituent Assembly completed its job. No specific form of Instrument of Accession was provided by the Act. The Government of India accepted a mere letter by the Nizam to the Governor General C. Rajagopalachari, dated November 18, 1948, as a proper document of accession. A draft Instrument of Accession had been prepared in 1937 when the Act went into force. But its federal part did not come into force and the Instrument gathered dust in the office of the Reforms Commissioner until its last incumbent, V.P. Menon, pressed it into service in 1947. Section 6 of the Act prescribed the minimum requirements of accession such as acceptance of federal authority on some matters. It did not preclude a conditional accession at all.

Since the raiders from Pakistan had entered the State, the Defence Committee of the Indian Cabinet met on October 26, 1947, to consider V.P. Menon’s report after his visit to Kashmir to meet Maharaja Hari Singh in Jammu. The Maharaja had fled from Srinagar in sheer panic. The minutes record that the Ministry of States was asked “to prepare” an Instrument of Accession to be signed by the ruler and also a letter to him “stating the temporary acceptance of this instrument” pending a plebiscite. Hari Singh signed it—in Jammu (emphasis added, throughout).

The letters exchanged between him and Governor-General Lord Mountbatten form an integral part of the arrangement, as every legal authority on construction of Statutes and deeds declares . Mountbatten’s letter of acceptance imposed a condition: “the question of the State’s accession should be settled by a reference to the people .” Which is why the White Paper on Jammu and Kashmir (1948) recorded: “The Government of India made it clear that they would regard it as purely provisional until such time as the will of the people of the State could be ascertained.” This made the accession to India conditional.

From August 15, 1947, to October 25, 1947, Kashmir was a sovereign independent State. It is the only State of the Union of India which negotiated the terms of its membership of the Union. The negotiations lasted for a whole five months, from May to October 1949, and resulted in an agreed draft. Vallabhbhai Patel was very much party to it as also to the Cabinet decision on October 26, 1947. The agreed draft was adopted by the Constituent Assembly on October 17, 1949. Article 370 is, thus, not just a provision of the Constitution like all the others. It records an agreed compact between Kashmir and India .

The Supreme Court has ruled more than once that exposition by movers of a provision in the Constituent Assembly can be relied on as a guide to its proper interpretation. Its sponsor N. Gopalaswamy Ayyangar’s exposition of Article 370 in the Constituent Assembly on October 17, 1949, is, therefore, highly authoritative. He said: “We are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled.

“Again, the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it. We are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed. We have also agreed that the will of the people, through the instrument of a Constituent Assembly, will determine the Constitution of the State as well as the sphere of Union jurisdiction over the State.

“At present, the legislature which was known as the Praja Sabha in the State is dead. Neither that legislature nor a Constituent Assembly can be convoked or can function until complete peace comes to prevail in that State. We have therefore to deal with the Government of the State which, as represented in its Council of Ministers, reflects the opinion of the largest political party in the State. Till a Constituent Assembly comes into being, only an interim arrangement is possible and not an arrangement which could at once be brought into line with the arrangement that exists in the case of the other States.

“Now, if you remember the viewpoints that I have mentioned, it is an inevitable conclusion that, at the present moment, we could establish only an interim system. Article 306-A is an attempt to establish such a system [Article 370 in the draft Constitution].”

Which is why Clause (2) of Article 370 says that if the concurrence of the State government is given to application of additional provisions of the Constitution of India—other than those which fall within the Instrument of Accession—before the State’s Constituent Assembly “is convened, it shall be placed before such Assembly for such decision as it may take thereon”. It is an indispensable and also the sole ratificatory body.

Sheikh Abdullah’s warning Kashmir’s Prime Minister, Sheikh Abdullah, held the same view. He told Kashmir’s Constituent Assembly on August 11, 1952, after the Delhi Agreement, “The other important feature of this constitutional set-up is that the matters specified in the Instrument of Accession shall apply in relation to the Jammu and Kashmir State in consultation with the Government of the Jammu and Kashmir State and all other matters which do not fall within the terms of Instrument of Accession shall not apply in relation to our State except with the final concurrence of the Jammu and Kashmir Constituent Assembly .”

He went on to emphasise: “Here I would like to point out that the fact that Article 370 has been mentioned as a temporary provision in the Constitution does not mean that it is capable of being abrogated, modified or replaced unilaterally. In actual effect, the temporary nature of this Article arises merely from the fact that the power to finalise the constitutional relationship between the State and the Union of India has been specifically vested in the Jammu and Kashmir Constituent Assembly. It follows that whatever modifications, amendments or exceptions that may become necessary either to Article 370 or any other Article in the Constitution of India in their application to the Jammu and Kashmir State are subject to the decisions of this sovereign body.”

Sheikh Abdullah uttered this warning: “I would like to make it clear that any suggestions of altering arbitrarily this basis of our relationship with India would not only constitute a breach of the spirit and letter of the Constitution, but it may invite serious consequences for a harmonious association of our State with India .”

Nehru’s decision to dismiss Sheikh Abdullah from the office of Premier of the State, put him in prison for over a decade, and his policies and those of his successors have resulted in the situation which confronts us today. The Sheikh’s warning remains all too true in 2014. Article 370 was brazenly flouted. Once Kashmir’s Constituent Assembly was commenced on October 31, 1951, the State Government lost the power to accord any concurrence whatever. It dissolved itself by a resolution on November 17, 1956, to take effect on January 26, 1957.

Wilful disinformation There is a lot of misunderstanding and even wilful disinformation about Article 370 and Kashmir’s Constituent Assembly that was to work out its terms. The Maharaja’s Proclamation of March 5, 1948, sought to convene a National Assembly while establishing a popular interim government headed by Sheikh Mohammad Abdullah. It was superseded by another Proclamation of May 1, 1951, which convened a Constituent Assembly “for the purpose of framing a Constitution”. It is this Constituent Assembly which the framers of Article 370 had in mind and no other . It was “convened: on October 31, 1951, and was formally dissolved on November 17, 1956.

Conscious departure from precedent Its President, G.M. Sadiq, and its members were well aware of the precedent of the Constituent Assembly of India, which adopted the Constitution of India on November 26, 1949, and met again on January 24, 1950, to elect the President of India, Dr Rajendra Prasad, who was also President of the Constituent Assembly. On this day members ceremonially signed a copy of the Constitution. The Official Record reads: “Mr. President: ‘The House will stand adjourned now, sine die. ’ The Constituent Assembly then adjourned sine die ” ( Constituent Assembly Debates ; Volume 12; page7).

Kashmir’s Constituent Assembly departed from this precedent consciously and completely. It adopted on November 17, 1956, a resolution moved by Syed Mir Qasim, later Chief Minister of the State, which said categorically: “Now, therefore, this Assembly resolves that it should stand dissolved on the 26th day of January 1957 which is the date of the commencement of the Constitution” ( J&K Constituent Assembly Debates , Official Report, March 1956, September 1956 and January 1957 Sessions; Part II (1956); pages 1248 – 1250). Page 1272 of this report records: “Mr. President: Today this historic session ends and with this the Constituent Assembly is dissolved according to the Resolution passed on 17th November 1956.’ Note: The clock struck 12 p.m. and the Constituent Assembly was dissolved by the President, Hon’ble G.M. Sadiq, according to the Resolution passed by the Constituent Assembly on 17th November 1956.” This Note concludes the Official Report calculatedly.

The elaborate ceremony to pronounce the dissolution of Kashmir’s Constituent Assembly had a purpose. Though New Delhi stooges, Bakshi Ghulam Mohammed and G.M. Sadiq, hatchet men of the coup against the Sheikh on August 9, 1953, and Mir Qasim, complicit in the conspiracy, wanted to proclaim loud and clear that the sole ratificatory body envisaged in Article 370 had died a peaceful death and there could be no more extensions to Kashmir of “other” provisions of the Constitution of India nor could New Delhi apply more entries in the Union List and amass powers after January 26, 1957.

It was Jawaharlal Nehru, the man who had ordered the Sheikh’s arrest on August 9, 1953, who set this sordid process afoot with full knowledge of its unconstitutionality and in flagrant breach of the solemn pledges he had made to his friend, the Sheikh, and to the people of Kashmir. Apart from the main Order of May 14, 1954, about 10 more Orders were made at Nehru’s instance, which enabled him to gloat on November 27, 1963, that Article 370 has been eroded and the process would “go on”.

Of a piece with constitutional illiteracy on Article 370 is the argument that it bars outside investment in the State. As a matter of fact, it is the Maharaja’s Notification of April 26, 1927, which defines who a “State Subject” is. A provision (Class IV) made special exemptions for companies that are of “economic benefit to the State”. As Nehru pointed out on November 27, 1963, similar restrictions on the purchase of land were in force in Arunachal Pradesh and “even in other districts, the hill districts of Assam. This is to protect them.” The BJP does not agitate for removal of the special status of Nagaland (Article 371 A), Arunachal Pradesh (Article 371 H), Sikkim (Article 371 F) and Mizoram (Article 371 G). Kashmir is different. It has a Muslim majority. It is an eye sore.

The marginal note to Article 370 characterised it as “Temporary Provisions with respect to the State of Jammu and Kashmir” because it established an “interim system” pending a solution to the Kashmir dispute in accordance with the will of the people. In 2014 no one in his senses talks of a plebiscite. All speak of a settlement between India and Pakistan which meets with the approval of the people. Article 370 is thus a “temporary” provision pending that settlement; not pending its abrogation to make Kashmir a State on a par with the other States.

On May 14, 1954, the President of India made an Order, under Article 370, entitled the Constitution (Application to Jammu & Kashmir) Order 1954, extending specified provisions in the Constitution of India to the State, with or without modifications or adaptations.

To cite a meaningful example, Article 253 of the Constitution of India says: “Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” But the 1954 Order adds an overriding proviso to Article 253: “Provided that after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, no decision affecting the disposition of the State of Jammu and Kashmir shall be made by the Government of India without the consent of the Government of that State.” This unique proviso, which still forms part of the Constitution of India, implies clearly that “a decision affecting the disposition” of Jammu and Kashmir is yet to be taken.

Consider carefully the terms of Article 370. It says that “the provisions of Article 1 and of this Article shall apply in relation to that State”. Thus Article 1, which establishes “a Union of States”, applies to Kashmir by virtue of Article 368 as, indeed, does the First Schedule mentioned in Article 1. It is precisely for this reason that Union Home Minister S.B. Chavan said on March 1, 1993, that Article 370 is “the only link India has with Kashmir” ( The Statesman , March 2, 1993). Prime Minister P.V. Narasimha Rao went further still. On June 12, 1996, he said: “Abrogation of the Article is just not possible, unless you want to part with the State.”

Indeed, in clause (3) Article 370 provides for its own extinction. “(3) Notwithstanding anything in the foregoing provisions of this Article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify; Provided that the recommendations of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.” That body vanished on November 17, 1956. Clause (3) provides the only valid mechanism for abrogating or deleting Article 370.

Article 368 confers on Parliament the power to amend the Constitution of India and also prescribes the procedure for it. However, as applied to the State of Jammu and Kashmir, the President’s Order of 1954 imposes this proviso: “Provided further that no such amendment shall have effect in relation to the State of Jammu & Kashmir unless applied by order of the President under clause (1) of Article 370.” This Clause (1)(d) empowers the President to extend to Jammu and Kashmir “other provisions of this Constitution subject to such changes as he may specify”. But it has two provisos. One proviso says consultation with the State government is required for extending to Jammu and Kashmir provisions of the Indian Constitution which relate to “the matters specified in the Instrument of Accession” which was confined to defence, foreign affairs and communications. Another proviso adds that no such Order by the President “which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that government”. But this is an interim step. It is subject to the decision of the State’s Constituent Assembly which, as we have noted, was dissolved on January 26, 1957. The President of India cannot unilaterally revoke his Order of 1954 and remove the curbs which exclude the application of Article 368 to Kashmir; still less can he delete Article 370. The Constituent Assembly whose concurrence was indispensable no longer exists.

Scandalously, by securing the “concurrence” of puppet governments in the State, installed by New Delhi through fraudulent elections, even after the Constituent Assembly was no more, the State’s autonomy was extinguished through orders under Article 370 made with utter illegality by 47 Orders over 40 years from 1954 to 1994. Ninety-four of the 97 entries in the Union List and 260 of the 395 Articles of the Constitution of India were extended to the State in brazen violation of Article 370; Article 370 is now a total wreck. After putting his co-author, the Sheikh, in jail, Prime Minister Jawaharlal Nehru cheerfully gloated in the Lok Sabha on November 27, 1963, that Article 370 “has been eroded”. It was not a natural element to be eroded by the passage of time or the vagaries of the climate. He himself systematically violated it to denude Kashmir of its autonomy. His Home Minister, G.L. Nanda, told the Lok Sabha on December 4, 1964, that Article 370 was “a tunnel” through which more and more provisions of the Indian Constitution could be applied to Kashmir and the Union’s powers increased.

Abrogation of Article 370 is impossible. The BJP’s pledge is a constitutional impossibility. Greater popular awareness since 1994 has blocked the “tunnel”. Now no State government dare give its “concurrence” to the fraud. As Dr Haseeb A. Drabu, a noted economist and former President of the Jammu and Kashmir Bank asked in sheer anguish in an article, “What is there to abrogate?” ( Greater Kashmir ; April 10, 2014).

That anguish is universally shared in Kashmir. The BJP’s answer to it is not to address that justified sentiment, but to crush it—by asking for the “abrogation” of Article 370. Other political parties oppose this. None, the Congress included, cares to respond to the sentiment. A constitutional impossibility arrogantly proposed by the BJP has as its companion moral blindness and political indifference which is also shared by the rest, including the Congress. Both will receive their just deserts at the hands of the people of Kashmir, sooner than they suspect.

RAM TEMPLE The demolition of the Babri Masjid by members of the Sangh Parivar, including the BJP, did not induce remorse. It encouraged, instead, an intensification of the campaign for a Ram temple on the site of the demolished mosque. Parliament enacted the Acquisition of Certain Areas at Ayodhya Act, 1993, to replace the Ordinance to the same effect promulgated on January 7, 1993. On the same day, the President made a Reference to the Supreme Court for its advisory opinion under Article 143(1) of the Constitution on the question “Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janmabhoomi-Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood.”

Section 3 of the Act vested in the Central Government “the right, title and interest in relation to the area” while Section 7 vested in it the power to manage the acquired property. True to form, Narasimha Rao tilted the balance in favour of the Sangh Parivar. Section 7(2) read: “In managing the property vested in the Central government under Section 3, the Central government or the authorised person shall ensure that the position existing before the commencement of thisAct in the area on which the structure (including the premises of the inner and outer courtyards of such structure), commonly known as Ram Janmabhoomi-Babri Masjid, stood in Village Kot Ramchandra in Ayodhya, in Pargana Haveli Avadh, in Tehsil Faizabad Sadar, in the district of Faizabad of the State of Uttar Pradesh is maintained .”

This was a reference to the ramshackle temple put up on the site by the vandals immediately after the demolition. Jyoti Basu’s advice to remove the idols was rejected. Can this Act, which vests the site and its management in the Central government, be used by the BJP government to build a Ram temple and fulfil its immoral pledge? The answer can only be in the negative.

The Act as well as the Reference were challenged in the Supreme Court, which then heard them together and decided them in a common judgment. The Bench, however, split along communal lines. It decided unanimously to decline the Reference for the court’s advisory opinion. It also agreed unanimously to strike down as unconstitutional subsection (3) of Section 4 of the Act which said, “If, on the commencement of this Act, any suit, appeal or other proceeding in respect of the right, title and interest relating to any property which has vested in the Central government under Section 3, is pending before any court, tribunal or other authority, the same shall abate.”

Speaking for the majority comprising Justices M.N. Venkatachaliah, G.N. Ray and himself, Justice J.S. Verma held: “The rival claims to the disputed area which were to be adjudicated in the pending suits can no longer be determined therein as a result of the abatement of the suits. This also results in extinction of the several defences raised by the Muslim community, including that of adverse possession of the disputed area for over 400 years since construction of the mosque there in 1528 A.D. by Mir Baqi. Ostensibly, the alternate dispute resolution mechanism adopted is that of a simultaneous Reference made the same day under Article 143(1) of the Constitution to this Court for decision of the question referred. It is clear from the issues framed in those suits that the core question for determination in the suits is not covered by the Reference made, and it also does not include therein the defences raised by the Muslim community . It is also clear that the answer to the question referred, whatever it may be, will not lead to answer of the core question for determination in the pending suits and it will not, by itself, resolve the longstanding dispute relating to the disputed area. Reference made under Article 143(1) cannot, therefore, be treated as an effective alternate dispute-resolution mechanism in substitution of the pending suits which are abated by Section 4(3) of the Act.…

“There can be no doubt, in these circumstances, that the Special Reference made under Article 143(1) of the Constitution cannot be construed as an effective alternate dispute-resolution mechanism to permit substitution of the pending suits and legal proceedings by the mode adopted of making this Reference. In our opinion, this fact alone is sufficient to invalidate subsection (3) of Section 4 of the Act.”

The majority held Section 4(3) to be severable from the rest of the Act. The minority, comprising Justices A.M. Ahmadi and S.P. Bharucha, held it was not and struck down the entire Act. But there is a fundamental disagreement between them, which their agreement on the non-maintainability of the Reference does not conceal. Justice J.S. Verma’s judgment, for all its high-flown rhetoric, belittles the moral and legal significance and effect of the mosque’s demolition which is a grave offence under Section 295 of the Indian Penal Code. The net result of his laboured reasoning was to perpetuate a situation created by that crime. Justice Bharucha’s judgment reckons with it fully in striking down the entire Act. The two differ also in their reasons for declining to answer the Reference. Justice Bharucha held that Muslims alone were aggrieved. Justice Verma laboured hard, in a forced equation, to assert that both Muslims and Hindus were aggrieved by the demolition, thus retaining for Hindus the gains of the past since 1949 when the idols were planted in the mosque and, correspondingly, depriving Muslims of the rights they had possessed before that plus the rights acquired as a consequence of the demolition. Incidentally, Justice J.S. Verma was also the author of the much-criticised judgment in the Hindutva Case.

Justice Bharucha sharply pointed out: “The preamble to the Constitution of India proclaims that India is a secular democratic republic. Article 15 in Part III of the Constitution, which provides for fundamental rights, debars the State from discriminating against any citizen on the ground of religion. Secularism is given pride of place in the Constitution. The object is to preserve and protect all religions, to place all religious communities on a par. When, therefore, adherents of the religion of the majority of Indian citizens make a claim upon and assail the place of worship of another religion and, by dint of numbers, create conditions that are conducive to public disorder, it is the constitutional obligation of the state to protect that place of worship and to preserve public order, using for the purpose such means and forces of law and order as are required. It is impermissible under the provisions of the Constitution for the state to acquire that place of worship to preserve public order. To condone the acquisition of a place of worship in such circumstances is to efface the principle of secularism from the Constitution.”

The result was that the civil suits filed by both sides were revived. The judgments delivered on September 30, 2010, by the three judges on the Special Full Bench at Lucknow of the High Court of Allahabad caused dismay and disquiet everywhere, except among members of the Sangh Parivar. The “family” comprises the RSS, the BJP, its political front, the Vishwa Hindu Parishad (VHP), the front it set up avowedly to grab the Babri Masjid, and its militant wing, the Bajrang Dal. Justices Sibghatullah Khan and Sudhir Agarwal made an order of a tripartite partition of the Babri Masjid, which none expected, none had asked for in the pleadings, and, which judicially sanctified the conversion of a historic mosque into a temple, itself created by deceit and force aided by state agencies on the night of December 22-23, 1949. As a majority decision, it became the decision of the court. In contrast, Justice Dharam Veer Sharma rejected the Muslim case in toto .

The three judgments were reserved on July 26, 2010, and were delivered on September 30, 2010. Justice Khan’s is the briefest. Its merit is a crisp narration of the facts. Justice Sharma’s is much longer; Justice Agarwal’s is the longest. Uniquely, both cited religious texts; Islamic, to prove that the Masjid was not validly built under Islamic law; and Hindu texts to claim and assert that the Indian law on limitation, embodied in the Limitation Act, 1908, did not and could not apply to idols, to the properties held by them and even to the sites on which they are placed, while they, on their part, can acquire title to other properties by adverse possession. Assertions are stridently made. The language is emotional.

Justices Khan and Agarwal concur on the partition solution. The idols planted in December 1949 can be placed on the site of the central dome of the demolished mosque. The Nirmohi Akhara could have the open area in the outer courtyard. Muslims will get the leftovers.

Justice Sharma rejected the Muslim case en bloc . The three judgments run into 31 volumes and it is truly amazing how the judges, Justices Agarwal and Sharma in particular, managed to accomplish the feat in a mere two months. If religious faith governs their judgments, counsel of expediency pervades Justice Khan’s—submit to the inevitable, while quoting Darwin on the survival of the fittest.

Appeals against the High Court judgments came up for admission in the Supreme Court on May 9, 2011, before a Bench comprising Justices Aftab Alam and R.M. Lodha. They did not conceal their displeasure. At the start of the proceedings, the judges pointedly asked if anyone was in favour of the High Court’s verdict. None was, a fact which the court appreciated. It asked if any of the parties supported the judgments. None did ( DNA , May 10, 2011). All sought a stay of their execution, which the court duly ordered. Justice Aftab Alam said: “At least on one issue, all of you are unanimous. The High Court has granted a new relief, which nobody has asked for it [ sic ]. The High Court has done something on its own. It has to be stayed.”

Justice Lodha said: “The High Court’s judgment is something strange. A new dimension has been given by the High Court as the decree of partition was not sought by the parties. It was not prayed for by anyone. It has to be stayed. It’s a strange order. How can a decree for partition be passed when none of the parties had prayed for it? It’s strange. Such kind of decrees cannot be allowed to be in operation. It is a difficult situation now. The position is that the High Court’s verdict has created a litany of litigation.”

The Bench ordered that the status quo at the disputed site would remain, as directed in 1994 by the Constitution Bench and the order passed on March 13-14, 2002.

It remains to be seen when the Supreme Court will find time and acquire the will to decide these appeals. It has found neither for settling the far less explosive issue of the cry of “Hindutva”, which Justice J.S. Verma held did not violate the electoral law without even mentioning the main text—V.D. Savarkar’s essay Hindutva . ( Dr Ramesh Prabhuo vs P.K. Kunte [1996] 1 Supreme Court Cases 130). On April 16, 1996, another Bench, citing an earlier ruling to the contrary, which Jusitice Verma had studiously ignored, ruled that “the entire case” should be heard and decided by a larger Bench of five judges to settle the question “authoritatively and expeditiously” ( Abhiram Singh vs C.D. Commachen & Ors [1996] 3 SCC 665). Eighteen years have passed and many elections have been held, but the court has not found time to decide on this important issue.

However, two incontrovertible truths stand out. On one point all the three judges of the Lucknow Bench —Justices D.V. Sharma, Sudhir Agarwal and S.U. Khan —were in remarkable and laudable agreement: idols of Ram were placed inside the mosque on the night of December 22-23, 1949. The RSS’ Organiser of March 29, 1987, said they “miraculously appeared there”. The BJP’s White Paper on Ayodhya said they had “appeared” there. L.K. Advani used the same expression. The High Court had confirmed a truth which was known to all and also confirmed the Parivar’s contempt for the truth. Is this truth, accepted by all the three judges, devoid of legal consequences?

Secondly, the Presidential Reference posed a question for the court’s advisory opinion, which it unanimously refused to answer as it would have entailed wiping out the Muslims’ case on adverse possession.

The question read: “Whether a Hindu temple on any Hindu religious structure existed prior to the construction of the Ram Janmabhoomi-Babri Masjid (including the premises in the inner and outer courtyards of such structure) in the area on which the structure stood?” ( Ismail Faruqui & Orsvs Union of India & Ors [1994] 6 SCC 360, page 385).

Compare this with the question that the High Court ordered the Archaeological Survey of India (ASI) to answer on March 5, 2003: “Whether there was any temple/structure which was demolished and mosque was constructed on the disputed site?” (ASI, New Delhi, 2003; “Ayodhya: 2002-3, Excavations at the Disputed Site: Report Submitted to the Special Full Bench, Lucknow of the Hon’ble High Court, Allahabad”; Vol. (Text), pages 2-3).

On this single ground alone—violation of the Supreme Court’s ruling—the High Court’s judgments invite a clear rejection by the Supreme Court; a fortiori because of partisanship and bias disclosed in the ASI’s report. Koenraad Elst is a favourite of the Sangh Parivar whose writings are published by a firm which also publishes the Parivar’s literature. He is cited at page 51 where the Austrian traveller Joseph Tieffenthaler, who visited the site around 1766-67, is also quoted. The reason for this excursion is obscure but not hard to guess. Both Justices Sharma and Agarwal rely on Tieffenthaler’s testimony; one of them, Agarwal, to support his assertion that the Babri Masjid was built not by Babar but by Aurangzeb.

Small wonder that the High Court judgments, though welcomed by the Sangh Parivar, were received with disbelief by all, including the Supreme Court.

If it is unconstitutional to abate by law civil suits pending in court and rob one side of its rights, it is a fortiori sheer abuse of a brute majority in Parliament to make a law for the construction of a Ram temple at Ayodhya in wilful violation of the Supreme Court’s unanimous ruling. It will then rise not only on the debris of a mosque demolished by the men of the Sangh Parivar, who now comprise a majority in the Lok Sabha. It will rise on the ruins of secularism and the rule of law as well.

UNIFORM CIVIL CODE The Sangh Parivar’s old campaign since 1962 for a uniform civil code was inspired by one idea: erase Muslim identity as symbolised in Muslim Personal Law. Union Law Minister G.S. Pathak was specific. Speaking in the Lok Sabha on the subject on May 17, 1966, he said that he appreciated that “personal laws are mixed up with religion” and that “we cannot coerce people to accept our views about their religion and customs”.

Prof. J.N.D. Anderson has written, “It is the family law that has always represented the very heart of the Shariah (Islamic law), for it is the part of the law that is regarded by Muslims as entering into the very warp and woof of their religion.” It has been “basic to Islamic society down the centuries” and is the only part of Muslim law still applied to millions of Muslims.

The Parivar received encouragement in its campaign by the judgment by Justices Kuldip Singh and R.M. Sahai in Sarla Mudgal vs Union of India (1995) (3 Supreme Court Cases 638). They received their just deserts from the last of the country’s true constitutional lawyers, H.M. Seervai, in an article entitled “Uniform Civil Code: Judiciary Oversteps its Brief” ( The Times of India ; July 5, 1995).

Since it is hard to come by, nearly two decades after its publication, I make no apologies for quoting it in extenso : “The common question raised by the three petitions was, ‘Is marriage between persons professing the same religion dissolved if one of them becomes a convert to another religion?’ Obviously this question has to be decided under our Constitution and our laws. The decision of this question does not raise any question about a common civil code, and the two judges held likewise and dismissed the petitions.

“Justice Kuldip Singh, however, gratuitously raised the question of a common civil code on the specious ground that the absence of such a code induced Hindu husbands to convert to Islam so that they could marry one or more wives although their wives were alive and had not been divorced , because Mohammedan law permitted a Muslim to marry four wives at a time. He further held that a common civil code did not violate the freedom of religion guaranteed by Articles 25, 26 and 27 of our Constitution. On this point, Justice Sahai dissented and referred to Supreme Court decisions which had held that religion was not merely a matter of faith and belief, but included rituals, ceremonies and prayers in temples, mosques, churches, etc. Justice Kuldip Singh praised Justice Sahai’s ‘concurring’ judgment. But on the question of whether a common civil code would violate freedom of religion, Justice Sahai did not concur . Both judges inadvertently overlooked Article 145(5), which provides that no judgment shall be delivered in the Supreme Court except with the concurrence of a majority of judges hearing the case. Since the two judges differed as aforesaid, they could deliver no judgment at all on the point whether a common code did or did not violate the freedom of religion....

“It becomes necessary to say this because of the following amazing order passed by Justice Kuldip Singh and concurred in by Justice Sahai. ‘We, therefore, request the government of India through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and endeavour to secure for the citizens a uniform civil code throughout the territory of India’…

“Since the order is based on the supposed ‘mandate’ of Article 44, it is necessary to set out Articles 37 and 44: Article 37: ‘Application of the principles contained in this Part (on Directive Principles of state policy). The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.’ Article 44: ‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’

“The Supreme court cannot enforce the mandate of Article 44; consequently the aforesaid order is null and void. It is not the judiciary but the executive which can consider what law should be submitted to Parliament and it is the latter which alone can decide whether or not to enact a proposed law. Those who have studied Hindu law and Mohammedan law will realise that a common civil code for Hindus and Muslims alike is an impossibility.”

The real issue is reform of an un-Islamic Muslim Personal Law, imposed by the British on the basis of texts of dubious quality, so that it accords with Sharia , Islamic Law, which fully recognises the rights of women; for example to unilateral divorce by the wife at her will and to stipulate at the time of the marriage that she will be entitled to a divorce if the husband were to marry again. It is foolish to expect that bogus body of dinosaurs which styles itself as Muslim Personal Law Board to move in this direction. The BJP’s demand only drives the Muslim back into his own shell. What one of the last of India’s great editors, S. Mulgaokar, said in his Convocation Address at the Jamia Millia Islamia, New Delhi, on October 29, 1966, is as relevant now as it was then: “It is not as a champion of the minorities, for which role I have no credentials, but as a citizen concerned with hastening the pace of progress that I ask whether we can go forward at all with nearly a tenth of the population withholding from the national life the full contribution of which they are capable. Hindu obscurantism currently shows signs of striking more aggressive postures to which the [Congress]government is responding with appeasement . I do not say there is no obscurantism among the minorities. I am only concerned to point out that the more we give legislative sanction to Hindu obscurantism, the more the minorities will withdraw into the protective shell of their own obscurantism and a thicker encrustation of backwardness will overlay our national life. We shall be condemned to the arid, negative secularism of the statute books in place of the fullness and variety of true, human brotherhood.”

The one sure way to discourage Muslim exclusiveness is, surely, to strive for redress of their genuine grievances. But let alone the ruling party of the day, even the opposition parties are slow to do this, anxious as they are desperately to gain adherents.

The Personal Law of Muslims in a secular set-up, thus, needs reform, but not abrogation by a uniform civil code. Urgently needed reform, however, is only an aspect of the entire problem of the place and role of Muslims in India today. The Muslim and the non-Muslim secularist can together help in assuring a place and role for a community so backward and timid yet potentially so capable of imparting meaning and strength to one of the most challenging experiments in equality history has ever witnessed.

The BJP’s tears for the lot of Muslim women would have been more impressive if it had exerted itself, even slightly, to ensure that their husbands, brothers and sons are not killed by its goons in pogroms with impunity.

No Prime Minister in recent memory has received a warmer reception than Narendra Damodardas Modi. The great Urdu poet Vali Dakhani hailed from Gujarat. He developed the style and language of the ghazal in Hyderabad—hence Dakhani—and brought it to an admiring Delhi. “The immediate stimulus and example was provided by Vali,” write D.J. Mathews and C. Shackle in their work An Anthology of Classical Urdu Love Lyrics (1972; page 4). His grave, right outside Police Station in Ahmedabad, was flattened consciously during the pogrom of Muslims in 2002. Prime Minister Modi should order it to be rebuilt. It will be a gesture of reconciliation which will be widely hailed.