The Telegraph, 21 October 2010
ONCE BELIEF IS EVIDENCE
- The Ayodhya judgment’s impact is many-faceted
CUTTING CORNERS - ASHOK MITRA
A major flutter in the dovecotes. Kashmir, its incumbent chief minister has served notice, has not merged with, but only acceded to, India. This essay at making a distinction between merger and accession is of far-reaching import. For if there is scope for tentative accession, the option for secession cannot be logically ruled out either. India’s Constitution, though, has no such provision, and an old debate could well be resurrected. What is more, the two-to-one majority verdict of the Lucknow bench of the Allahabad High Court could — howsoever incongruous it might sound initially — add a further dimension to the debate.
One way of looking at the Ayodhya verdict is, of course, to treat it as a political testament with a coating of judicial sagacity. The dispute had dragged on for as many as six decades. The issues involved have generated intense passion in different quarters, sometimes leading to large-scale violence marked by the killing of thousands of innocent people and the insensate destruction of property. The nation has been looking for a surcease of all this. The judiciary might have considered it as its sacred obligation to lend a helping hand so that such a surcease was made possible. The legal pronouncement thus purposely assumes a statesmanesque garb. The judgment has offered a solution to the hitherto intractable problem along the lines of a compromise formula; there is something in it aimed at satisfying both major contending parties: two bits of the real-estate under contention for the Hindu party, one bit for the Muslims. It is as if the verdict echoes the spirit that underlay the communal award Mahatma Gandhi signed along with B.R. Ambedkar and the viceroy in 1932.
The broad contours of the judgment, it will be urged, on behalf of many well-meaning people, should be accepted by the parties concerned. That would herald a giant step towards national reconciliation. And if some residual dissatisfaction needs to be attended to, why, the portals of the Supreme Court are right there; it is up to the nation’s highest judiciary to take a second look at the recommendations in the majority judgment of the Allahabad High Court and apply whatever corrective cosmetics are called for, for instance, amend the two-thirds one-third split of the disputed property between the principal communities to one-half and one-half. But the judgment, it will be argued, has at least shown the way to how the silly spat over some paltry acres of landed property could be ended once and for all; it will be folly to continue to be pernickety. Is not the 21st century beckoning us, are we not already in its brisk and vibrant presence?
While much of this perhaps makes sense, a feeling of uneasiness still persists. Concern over certain aspects of the rationale which forms the basis of the judgment cannot be shooed away. The main difficulty is with the train of thought leading to the judicial conclusion that the site under dispute deserves to be accepted as the birthplace of Ram.
The majority judgment cuts quite a few awkward corners before arriving where it has arrived. Ram is the hero of the great epic, the Ramayan. Its authorship is principally attributed to the sage, Valmiki. The epic has, however, been supplemented through the ages by contributions bequeathed by oral tradition, and it is an open-ended question how many of its 24,000 shlokas originated with Valmiki. The circumstances of Valmiki’s own birth are obscure enough, with legend linking it with supernatural phenomena. Whether Ram was a historical figure or a character imagined by the author or authors of the Ramayan is a debate which is far from resolved. To identify the birthplace of a character who may be a figment of the poetic imagination might indeed be reckoned by many as a piece of black humour. The Ayodhya judgment nonetheless dares where scholarly angels fear to tread. Assuming — or, rather, presuming — the historical actuality of Ram as a settled fact, it shifts attention to examining the authenticity of the claim of the prior existence of a temple on the site where the now-demolished Babri mosque stood. The judgment wobbles considerably at this point. It refers to the assertion of a scatter of historians concerning the prior existence of the temple. No need to question the credentials of these scholars — but a formidable array of the most highly distinguished historians are equally convinced of the facts being otherwise. The decisive factor to resolve the controversy should have been concrete archaeological evidence. This simply is not there, whatever the yet-to-be-revealed surmise of the Archaeological Survey of India.
But let that pass. For even if, for argument’s sake, it is accepted that it was on the debris of a razed-down Ram temple that the mosque got built, the question arises whether a judgment delivered in the 21st century should venture to set right a wrong perpetrated five centuries ago. Were the answer to be in the affirmative, a Pandora’s box would be opened up. The absurdities that might then ensue are best left to the imagination.
While the issue of the prior existence of the temple remains indeterminate, the central recommendation in the judgment is on the basis of a hypothesis which — no point in not being blunt about it — takes the breath away. The ongoing debate over facts is brushed aside. A large body of opinion within the Hindu community, the judgment states, has through centuries nurtured the belief that the site in question was the birthplace of Lord Ram whom they revere as god. Whether or not Ram was a historical figure is no longer relevant; historical data and archaeological evidence are equally beside the point. Since a huge number of Hindus subscribe to a certain belief, that belief, the judgment avers, deserves to be given the imprimatur of judicial sanction. In other words, not facts, but faith will determine legal rights.
The judgment thereby initiates a revolution in the universe of jurisprudence: facts are not to constitute the basis of law, what is right or wrong, or true or false, will be decided upon not on the basis of factual data, but by the belief or beliefs cherished by some groups of people. The application of the doctrine adumbrated by the Ayodhya majority judgment, unless reversed, cannot be restricted only to the dispute round the Babri mosque-Ram temple imbroglio. It will set up a precedent to be generously quoted by interested parties in thousands of litigations that take place every day. A hypothetical — but not altogether far-fetched — example will be of a large crowd of villagers expressing their conviction before a court of law that a woman they were pointing their fingers at was a witch who they believed sucked the blood of little babies and she should therefore be put away. Judicial decision on the case could well hinge on the acceptance or otherwise of the precedent of the Allahabad High Court judgment. There could even be a grotesque situation where twenty thousand-odd citizens vouchsafe before a judge their non-belief in the due process of law as set out in official civil and criminal procedure codes and seek permission to follow their own community code. Since such non-belief could be reckoned as a matter of faith, they too might rest their case by referring to the Ayodhya judgment.
Once faith substitutes facts as cognizable evidence in a nation’s legal framework, the consequences of what might ensue could be mind-boggling. A scholarly piece carried in a recent issue (September 25, 2010) of *the Economic and Political Weekly proposes a discourse on the desirability of incorporating a secession cleanse in the Indian Constitution. Opening the space for discussing deviation from territorial status quo, it argues, will actually help generate fresh commitment to constitutionalism. The argument may be considered as either sound or vicious, and the Kashmir chief minister’s statement might add further grist to the controversy. There could be even graver possibilities. A massive movement backed by millions of people might spread across the country proclaiming in no uncertain terms that the people want no part of a country where belief replaces facts as the foundation of judicial decision-making and they — all offspring of the 21st century — therefore demand to secede from the Union of India. How would the rest of the polity react?
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