(The Guardian, 12 October 2010)
Allowing Hindu beliefs to determine a modern legal claim undermines the ground on which the Indian republic was built
by Mukul Kesavan
Why should a high-court judgment about the ownership of the site of a provincial Indian mosque razed 18 years ago resonate across India? Because more hinges upon the just resolution of the Babri Masjid dispute than the fate of a mosque. The real estate in dispute is not the site on which the mosque once stood but the constitutional ground on which the Indian republic is built. This is an argument about India.
In December 1992 the mosque, which Hindus believed had been built on the birthplace of their deity Ram, was torn down in a single day by a crowd of Hindu activists. The demolition was the violent climax of a pan-Indian movement designed to assert the political supremacy of the country's religious majority. Nearly two decades later, the court judgment, by giving two-thirds of the mosque's site to Hindu litigants, seems to vindicate this majoritarian claim.
There are three big problems with the Allahabad high court's judgment. First, it recognises a prior Hindu claim to the site of a medieval mosque by relying on a report submitted by the Archaeological Survey of India. Citing the ASI's finding that its excavations had uncovered the remains of an earlier Hindu structure, the judges allow a sense of historical injury felt by some Hindus to become the basis of a modern legal claim.
Second, the judgment concedes that the religious beliefs of a rhetorically invoked Hindu majority, regardless of their historical truth, can be determining in a legal dispute. The judges rule that because Hindus believe that the birth place of Ram (epic hero and god) lay under the central dome of the demolished mosque, it is good in law to give that part of the mosque's site to the Hindu litigants. All three judges acknowledge that Hindu idols were furtively installed under the central dome in 1949, which is when Hindu worship first began inside the mosque – but this illegality and the subsequent criminal razing of the mosque count for nothing in their judgment. This is the third problem with the verdict. While the alleged medieval destruction of an ancient Hindu temple is central to its reasoning, the mosque demolition less than 20 years ago isn't even mentioned.
The spin put on this omission by those who welcomed the judgment was that the mosque's demolition was the subject of a separate criminal suit and had no bearing on the civil case. It has been 18 years since the demolition and no one has been punished for it, which makes this diversionary gesture at the criminal suit a fairly shrivelled fig leaf.
Besides, as TR Andhyarujina, a former solicitor general of India, wrote in his critique of the judgment "when a party to a litigation takes the law into its own hands and alters the existing state of affairs to its advantage (as the demolition in 1992 did in favour of the Hindu plaintiffs) … the court would not allow an act of lawlessness to benefit the party that indulged in it. This elementary rule of justice the Allahabad high-court judgment ignores."
The Sunni Waqf board, which filed the title suit denied by the high court, will appeal to the supreme court. Meanwhile, in the media, there is enormous pressure on Muslims to "settle", to accept the judgment as fair. The Muslim litigants are already being cast as spoilers. When bearded Waqf board spokesmen are interviewed on television by slick young anchors in suits who keep asking them if they're prepared to "move on", a convenient tableau of fundamentalist intransigence is born.
One of the more poignant moments in the post-verdict debate was the sight of that lion of Hindi cinema, Javed Akhtar, scriptwriter and lyricist, in a television studio in his capacity as a secular Muslim. He said, deadpan, that Muslims couldn't be secular. He was suggesting, ironically, that Indian Muslims could only be militant or moderate, bad or good. Being secular was the privilege of chivalric Hindus; Muslims, by implication, were limited to the roles forced upon them by their Hindu interlocutors.
Some pundits called on the Congress-led ruling coalition to broker an out-of-court settlement. Congress governments have presided over every Hindu encroachment on the mosque, from the smuggling in of the idols in 1949, to the opening of the gates of the mosque to regular Hindu worship in 1985, to its demolition in 1992. After the court judgment, the Congress party began sounding out Muslims about a compromise that would consist of the Waqf board magnanimously giving up its claim to the one-third of the site the court had given it, to effect a "reconciliation". The party is an unlikely honest broker because it wants to square a circle: it wants the credit for helping build the Ram temple without losing the Muslim vote.
The supreme court is the likely place where this matter will be resolved. Indians who take the secular guarantees of the constitution seriously must hope it reverses the high court's judgment. If the supreme court were to uphold the high court's verdict, India will look the same the morning after, but the common sense of the republic will have shifted. It will begin to seem reasonable to Indians that those counted in the majority have a right to have their sensibilities respected, to have their beliefs deferred to by others. Invisibly, we shall have become some other country.
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