Did the Supreme Court lose an opportunity to shed light on the path the nation should follow and instead chosen to pursue the route set by a political process which alienated an already insecure minority? Was the judgment an exercise aimed at justifying a chosen conclusion which had already been agreed for extra-legal considerations? In the legal hierarchy, the Supreme Court is the final authority and this judgment shall prevail, unless it reviews it following a plea seeking its reconsideration. But as socio-political beings, it is important to scrutinise if this is what the nation needed. Or was it better to mediate a settlement on the basis of the majority Allahabad high court verdict of September 2010? This question is all the more important as the court often contradicted itself over where legal considerations ended and prominence began being given to religious faith.
The Supreme Court set aside the high court judgment making a three-way split of the disputed land on the following basis. First, it was “not seized of a suit for partition”. Second, the judgment was beyond the high court’s powers to “grant relief to the plaintiff on a case for which there is no basis in the pleadings”. Third, the “three-way bifurcation by the high court was legally unsustainable”. Additionally, the Supreme Court went beyond its capacity to evaluate impact of a verdict on social security. Much outside their brief and “skills”, the five judges unanimously agreed that “even as a matter of maintaining public peace and tranquility, the solution ... is not feasible... Dividing the land will not subserve the interest of either of the parties or secure a lasting sense of peace and tranquillity.”
The five judges, while rejecting the claim of the Nirmohi Akhara and the Uttar Pradesh Sunni Central Waqf Board, granted title to the remaining party as the representative of Hindus. Was it right for the court to declare the representative of the deity the representative of every Hindu? After all, the Ram Lalla Virajman became party in the dispute as late as 1989 when Vishwa Hindu Parishad vice-president Deoki Nandan Agrawala, also a former judge of the Allahabad high court, as next friend of the child deity. It requires little to recall that these idols were forcibly installed in December 1949. On the other hand, although the Nirmohi Akhara’s “claim to be a shebait stands rejected”, the Supreme Court gave the body compensatory relief by directing the government to nominate its representative in the soon-to-be-formed trust to oversee construction and maintenance of the temple. This favour was granted to the Akhara because of “having regard to the historical presence of the Nirmohi Akhara at the disputed site and their role”. If the Akhara had indeed played a significant role, then could it have been anything but that of shebait? The court has certainly not taken note of the majority of contemporary Hindu temples and sufi shrines, patronised by Muslims and Hindus alike, as being maintained by shebaits with no title rights. The Supreme Court’s final stance of the Nirmohi Akhara’s claim reflects the duality of the court when issues of law and faith overlap.
Two questions emerge from this and provide an indication of the most logical answer to the question raised at the onset — whether the Supreme Court constructed a “reasoning” to reach a pre-decided verdict. First, since when have courts begun pronouncing verdicts after assessing if it would “subserve the interest of either of the parties”? Further, if the courts begin being guided by security considerations, can one expect justice on issues involving social conflict? Reports in the media that the judges decided to pronounce their verdict on Saturday, November 9, after they “learned first-hand from police officials as well as from the Union home secretary and the Intelligence Bureau chief that adequate security arrangements had been put in place to deal with possible law and order disruptions as well as angry responses from some quarters”. We need to ask ourselves if such consultation between the judiciary and the executive has no bearing on the former’s independence. Was the verdict “moulded” to prevent law and order disturbances? It can be argued that the courts cannot function outside of socio-processes and must remain mindful of the impact of their words. But does this mean that either mobocracy or a majoritarian sentiment will dictate judicial pronouncements?
It is a reflection of the fast-disappearing Indian tradition of tolerance that the reaction of Muslims has been relatively subdued when juxtaposed with the responses in February 1986. It will be pertinent to recall that there were howls of protest after a Faizabad court hastily directed the district administration to open the lock of the disputed shrine and permit Hindus to enter and offer prayers. It a sign of maturity that Hindus too have so far reined in public jubilation, and one hopes that no one from the community goes around cocking a snook at Muslims with the message that “we have shown you your place”. In the muted response of Muslims lies an indicator of the altered political reality. We must recall that Lal Krishna Advani, after his release from detention after the demolition of the Babri Masjid, had said the objective of the Ram Janmabhoomi agitation was not to merely to build the Ayodhya temple. He said the actual purpose was to publicise and popularise the ideology of cultural nationalism. If this is to be believed, there is no reason to believe additions will not be made to the Hindutva agenda.
If one plots an imaginary index of Hindutva, the value of the “Y” axis would be at an all-time high. Because the BJP has come this far from its previous position on the sidelines of the Indian political stage, there is little reason to believe that the party will stop pushing its ideology further. There may be cessation in the short run on conflict because building the Ram temple will have to prioritised. But it is a matter of time before the Hindu nationalistic agenda is expanded....