canadian
Chief Minister (5k+ posts)
Justice in Ayodhya
Praful Bidwai How should India's Supreme Court treat the appeals that will be filed before it against the Allahabad High Court judgment on the Babri Mosque issue, which dismisses the Sunni Central Waqf Board's title suit and says the site was the birthplace of Lord Rama? Should the court encourage reconciliation between the Vishwa Hindu Parishad and the Waqf Board? Or should it overturn the judgment?
Constitutional principles and the rule of law clearly and singularly favour the second option, which would restore to Muslims their undisputed possession of the site until 1992. That will also satisfy the one-eighth of India's people who are Muslim and the many Hindus, Sikhs, Christians and others who are secular and tolerant and are unhappy with the verdict. The crucial distinction here is not religious identity, but reason, democracy and legality, central to modern citizenship. The judgment is irredeemably bad and communally biased. It privileges a particular faith, elevates it to law, and baselessly declares that Rama's birthplace lay beneath the mosque's central dome. It deprives Muslims of their entitlement to the mosque and the surrounding land, which they had possessed for centuries. It then trifurcates the 2.77-acre plot between Ram Lalla (the infant Ram), Nirmohi Akhara, and the Waqf Board. This may appear even-handed. But, as we see below, it only adds to the verdict's injustice.
While a significant minority of Indian Muslims feels resigned to the verdict and relieved that the VHP hasn't unleashed celebratory violence, a majority feels the judiciary has reduced them to second-class citizens. Many are worried at the Bharatiya Janata Party's triumphalist declaration that the verdict marks "a new phase in national integration" (read forced assimilation of minorities into a majoritarian culture) and L K Advani's claim that "the situation no longer is faith versus law, it is faith upheld by law." The VHP wants the Waqf Board to renounce its portion of the land, so that a grand Rama temple can be built there, in return for land elsewhere. This anti-secular premise assumes that the two communities cannot coexist or worship close to each other. Such one-sided "reconciliation" will compel Muslims into giving up what's rightfully theirs. The Supreme Court at the outset should address the apprehension that the VHP will now demand possession of hundreds of other mosques, like those in Kashi and Mathura, on similar grounds. The court can best address this by reaffirming the validity and relevance of the Places of Worship (Special Provisions) Act, passed in 1991 expressly to prohibit any change in the status of religious places. But it must go further and unravel the judgment's core.
An honest, rational scrutiny will find the judgment seriously flawed, illogical, and profoundly anti-secular and unconstitutional. It erases the distinction between faith and fact and holds not only that the Babri Mosque was the birthplace of Rama, but that Rama is a historical person because Hindus believe so. This even goes beyond the BJP's laughably irrational position that whether Rama was born there or not is irrelevant; what matters is people's faith that he was. Two of the three judges (Agarwal and Sharma) admit they cannot say when the mosque was constructed and by whom. Yet they are certain a temple existed before it was built! All three regard Ram Lalla as a juristic person with the right to property. This should be wholly inadmissible in a modern judicial system. But quaintly, in India, a suit was filed by Rama, no less, "represented" by a "close friend" and former judge and admitted, heard and decided. Sharma even waxes melodramatic about how Rama is "everywhere" and his birthplace is a "juristic person and also a deity". Agarwal quotes the Rig-Veda to plead indeterminacy of the facticity of Rama only to affirm Ayodhya was his birthplace: "None knows ... how the Creation took place, because even the scholars or those having foresight, were born after the Creation ...."
While asserting that Rama has existed since time immemorial, the judges pay no heed to a 1988 report of the Archaeological Survey of India (ASI), which found no sign of human habitation in Ayodhya before 2000 BC. Nor do they take full account of the established fact that Hindu idols were surreptitiously smuggled into the mosque in December 1949. Justice Sighbatullah Khan takes this as evidence of "joint possession" and hence the basis of dividing up the property in the crude way typical of village panchayats. He thus legalises a patently illegal act. The judgment ignores the parties' rights and instead strikes a bargain based on their relative strength or power. This negates the very basis of the functioning of a modern judiciary, which must treat all citizens irrespective of their strength as equal before the law.
The judgment relies on an ASI report commissioned under the BJP government in 2003, based on excavation at the site itself a questionable exercise. Archaeological excavation is done layer by layer so that different periods are identified according to the discovery of pottery, etc. This cannot produce reliable results if the mounds under examination have been dug up and turned over - as happened at the Babri site after 1992. The 2003 excavation finds were animal bones, burnt-brick powder and lime mortar typical of mediaeval Islamic construction, and pillars belonging to a much earlier period than 1528.
That's not all. The judgment accepts the Babri demolition as an accomplished and "normal" fact and legitimises it and the terrible violence that followed. This cannot be excused on the plea that the court was only deciding a title suit and not the demolition's legality. It doesn't even strike the judges that they are deciding petitions filed before the demolition. They tread into areas - opinion, belief, faith, history/mythology - which are out of bounds for the judiciary. They couldn't have gifted land under the central dome to a Hindu Akhara if the mosque were still standing.
This violates not just logic and rationality, but also the principle established by the Supreme Court in 1994 in treating the demolition as unconstitutional. Former Uttar Pradesh Chief Minister Kalyan Singh was dismissed for colluding in it and thus violating the Indian constitution. The Supreme Court upheld his dismissal. In effect, the judgment follows what may be called the PN Oak School of History, fashioned by a semi-literate bigot who believed that all great Islamic monuments in India were Hindu temples - including the Taj Mahal! These are the kind of charlatans who believe that Indians in the Vedic Ages had manufactured airplanes and nuclear weapons. It's bad enough when RSS pracharaks produce such garbage. It's infinitely worse when High Court judges descend to such abysmal levels. This shows how intellectually corrupted and communally compromised India's higher judiciary has become.
The Indian Supreme Court must follow the most rigorous constitutional-jurisprudential discipline in overturning the judgment. It must clearly spell out that the rights of Muslims cannot be allowed to be gutted by equating faith with fact, and privileging any one religion. The Allahabad judgment disempowers India's largest religious minority. This will cause strife and discontent rooted in rightful anger at its illegality and irrationality. India cannot afford such mass disaffection and communal biases in the judiciary if it is to survive as a democracy.
The writer, a former newspaper editor, is a researcher and peace and human-rights activist based in Delhi. Email: prafulbidwai1 @yahoo.co.in
( www.thenews.com.pk)
Constitutional principles and the rule of law clearly and singularly favour the second option, which would restore to Muslims their undisputed possession of the site until 1992. That will also satisfy the one-eighth of India's people who are Muslim and the many Hindus, Sikhs, Christians and others who are secular and tolerant and are unhappy with the verdict. The crucial distinction here is not religious identity, but reason, democracy and legality, central to modern citizenship. The judgment is irredeemably bad and communally biased. It privileges a particular faith, elevates it to law, and baselessly declares that Rama's birthplace lay beneath the mosque's central dome. It deprives Muslims of their entitlement to the mosque and the surrounding land, which they had possessed for centuries. It then trifurcates the 2.77-acre plot between Ram Lalla (the infant Ram), Nirmohi Akhara, and the Waqf Board. This may appear even-handed. But, as we see below, it only adds to the verdict's injustice.
While a significant minority of Indian Muslims feels resigned to the verdict and relieved that the VHP hasn't unleashed celebratory violence, a majority feels the judiciary has reduced them to second-class citizens. Many are worried at the Bharatiya Janata Party's triumphalist declaration that the verdict marks "a new phase in national integration" (read forced assimilation of minorities into a majoritarian culture) and L K Advani's claim that "the situation no longer is faith versus law, it is faith upheld by law." The VHP wants the Waqf Board to renounce its portion of the land, so that a grand Rama temple can be built there, in return for land elsewhere. This anti-secular premise assumes that the two communities cannot coexist or worship close to each other. Such one-sided "reconciliation" will compel Muslims into giving up what's rightfully theirs. The Supreme Court at the outset should address the apprehension that the VHP will now demand possession of hundreds of other mosques, like those in Kashi and Mathura, on similar grounds. The court can best address this by reaffirming the validity and relevance of the Places of Worship (Special Provisions) Act, passed in 1991 expressly to prohibit any change in the status of religious places. But it must go further and unravel the judgment's core.
An honest, rational scrutiny will find the judgment seriously flawed, illogical, and profoundly anti-secular and unconstitutional. It erases the distinction between faith and fact and holds not only that the Babri Mosque was the birthplace of Rama, but that Rama is a historical person because Hindus believe so. This even goes beyond the BJP's laughably irrational position that whether Rama was born there or not is irrelevant; what matters is people's faith that he was. Two of the three judges (Agarwal and Sharma) admit they cannot say when the mosque was constructed and by whom. Yet they are certain a temple existed before it was built! All three regard Ram Lalla as a juristic person with the right to property. This should be wholly inadmissible in a modern judicial system. But quaintly, in India, a suit was filed by Rama, no less, "represented" by a "close friend" and former judge and admitted, heard and decided. Sharma even waxes melodramatic about how Rama is "everywhere" and his birthplace is a "juristic person and also a deity". Agarwal quotes the Rig-Veda to plead indeterminacy of the facticity of Rama only to affirm Ayodhya was his birthplace: "None knows ... how the Creation took place, because even the scholars or those having foresight, were born after the Creation ...."
While asserting that Rama has existed since time immemorial, the judges pay no heed to a 1988 report of the Archaeological Survey of India (ASI), which found no sign of human habitation in Ayodhya before 2000 BC. Nor do they take full account of the established fact that Hindu idols were surreptitiously smuggled into the mosque in December 1949. Justice Sighbatullah Khan takes this as evidence of "joint possession" and hence the basis of dividing up the property in the crude way typical of village panchayats. He thus legalises a patently illegal act. The judgment ignores the parties' rights and instead strikes a bargain based on their relative strength or power. This negates the very basis of the functioning of a modern judiciary, which must treat all citizens irrespective of their strength as equal before the law.
The judgment relies on an ASI report commissioned under the BJP government in 2003, based on excavation at the site itself a questionable exercise. Archaeological excavation is done layer by layer so that different periods are identified according to the discovery of pottery, etc. This cannot produce reliable results if the mounds under examination have been dug up and turned over - as happened at the Babri site after 1992. The 2003 excavation finds were animal bones, burnt-brick powder and lime mortar typical of mediaeval Islamic construction, and pillars belonging to a much earlier period than 1528.
That's not all. The judgment accepts the Babri demolition as an accomplished and "normal" fact and legitimises it and the terrible violence that followed. This cannot be excused on the plea that the court was only deciding a title suit and not the demolition's legality. It doesn't even strike the judges that they are deciding petitions filed before the demolition. They tread into areas - opinion, belief, faith, history/mythology - which are out of bounds for the judiciary. They couldn't have gifted land under the central dome to a Hindu Akhara if the mosque were still standing.
This violates not just logic and rationality, but also the principle established by the Supreme Court in 1994 in treating the demolition as unconstitutional. Former Uttar Pradesh Chief Minister Kalyan Singh was dismissed for colluding in it and thus violating the Indian constitution. The Supreme Court upheld his dismissal. In effect, the judgment follows what may be called the PN Oak School of History, fashioned by a semi-literate bigot who believed that all great Islamic monuments in India were Hindu temples - including the Taj Mahal! These are the kind of charlatans who believe that Indians in the Vedic Ages had manufactured airplanes and nuclear weapons. It's bad enough when RSS pracharaks produce such garbage. It's infinitely worse when High Court judges descend to such abysmal levels. This shows how intellectually corrupted and communally compromised India's higher judiciary has become.
The Indian Supreme Court must follow the most rigorous constitutional-jurisprudential discipline in overturning the judgment. It must clearly spell out that the rights of Muslims cannot be allowed to be gutted by equating faith with fact, and privileging any one religion. The Allahabad judgment disempowers India's largest religious minority. This will cause strife and discontent rooted in rightful anger at its illegality and irrationality. India cannot afford such mass disaffection and communal biases in the judiciary if it is to survive as a democracy.
The writer, a former newspaper editor, is a researcher and peace and human-rights activist based in Delhi. Email: prafulbidwai1 @yahoo.co.in
