The judiciary
The Supreme Court's backsliding on the Ramjanmabhoomi Temple-Babri Masjid case, religious conversions and cow slaughter at different points of time over the years has done disservice to Indian secularism.
It
was arguably the biggest blow to secularism recorded by india today in
its 40-year history. The cover story of the December 31, 1992 issue
depicting the demolition of the Babri Masjid was aptly titled: "A
Nation's Shame". It was on the heels of this shameful incident in
Ayodhya- and its immediate repercussions in Bombay in the form of riots
and blasts-that I joined the magazine, with a brief to strengthen its
reportage of law and justice.
One of my priorities, naturally, was to follow up on the developments
in the Supreme Court on the Babri Masjid front. Although the demolition
had taken place on a Sunday, a bench headed by Justice M.N.
Venkatachaliah, reacting with alacrity, held a special hearing the same
evening at his residence. The assault on the mosque was in defiance of
the "symbolic kar seva" which the bench had allowed to be per-formed
peacefully at the disputed site. At the special hearing on December 6,
1992, Venkatachaliah was widely reported to have thundered that the
destruction of the Babri Masjid was the gravest ever contempt committed
against the apex court. In response, the counsel for the alleged
contemners, K.K. Venugopal, withdrew from the case saying, "My head
hangs in shame."The
expectations of accountability rose higher when Venkatachaliah went on
to become Chief Justice of India barely two months after the fateful
day. But all through the 20 months he held that key post, Venkatachaliah
steered clear of taking any action against Kalyan Singh for reneging on
his written commitment, as chief minister of Uttar Pradesh, to protect
the mosque. On the last day of his tenure, in October 1994,
Venkatachaliah did give Singh a token one-day imprisonment, but that was
only for a smaller contempt committed by him at the same site four
months before the demolition.
For the far more serious violations related to the demolition, all that the Supreme Court verdict said was: "Though the proceedings for suo motu contempt against the then chief minister of the state of Uttar Pradesh and its officers in relation to the happening of 6-12-1992 were initiated, those are pending and shall be dealt with independently."
Despite such solemn assurance, those proceedings have never been dealt
with, independently or otherwise. It's as if, after Kalyan Singh's
perfidy, it was the Supreme Court's turn to let down the nation.
Beginning with Venkatachaliah, successive judges have balked at taking
contempt action against anybody for the vandalism that had avowedly been
carried out as a prelude to the construction of the Ramjanmabhoomi
Temple. In retrospect, the Supreme Court seems to have placed religious
sentiments of the majority community over the rule of law.
Venkatachaliah kept away from this contempt aspect even when he
constituted a five-judge bench towards the end of his tenure to hear a
challenge to the Centre's acquisition of 67 acres in Ayodhya
post-demolition.In an India Today interview with
Venkatachaliah on the eve of his retirement in October 1994, I asked him
why he had belatedly woken up to Ayodhya-related matters. Denying any
extraneous considerations, he blamed the delay on systemic deficiencies
in the Supreme Court. "Our system of assessing the competing priority of
cases is not fully developed," he said. "I admit there is some ad
hocism in it. We don't have any rules or regulations for assessing
competing priorities. That needs to be done as a policy of court
management. Each bench decides its priorities according to its own
discretion."
If the prioritisation of cases was indeed left to the discretion of each bench, what prevented Venkatachaliah, as Chief Justice, to take up Ayodhya matters with due urgency? "That was not entirely in my hands," he claimed. "The constitution of a bench is sub-ject to the availability and commitments of my brother judges." The reply was hardly convincing as only a little earlier, the Supreme Court had promptly taken contempt action against a bar leader who had been found to have abused an Allahabad High Court judge. The errant lawyer was suspended from practising for three years and even given a deferred jail term of six weeks. Pointing out the contrast, I asked Venkatachaliah how the contempt involved in the Babri Masjid demolition was any less serious than the one related to the judge-browbeating case. "You cannot compare cases in that manner," he asserted, seeking refuge in technicalities. "The proceedings on the December 6 event expanded as more parties sought to be impleaded. Their applications for additional contemners were allowed. The service of notice on these additional contemnors has taken a long time, thereby delaying the case."
Split on verdict
The technicalities cited by Venkatachaliah, a widely respected judge, for his alleged helplessness did little credit to the Supreme Court, reputedly the most powerful and activist court in the world. The reason I recall this interview is to draw attention to the backsliding on the issue of secularism on more than one occasion since the Babri Masjid demolition. Given the centrality of secularism to the idea of India, such backsliding is indicative of more than the routine dysfunctionality of the judiciary. Tied to the failure of the Supreme Court to dispose of the contempt case against Kalyan Singh & Co was, for instance, an unedifying split along religious lines within the five-judge bench which decided the validity at the same time of the Centre's acquisition of 67 acres from Hindu groups around the disputed site.
The
two non-Hindu members of the bench, Justice S P Bharucha and Justice
A.M. Ahmadi, struck down the measures taken by the Centre as they
"favour one religious community and disfavour another". On the other
hand, the three Hindu members of the bench, Venkatachaliah, Justice J.S.
Verma and Justice G.N. Ray, upheld the acquisition subject to the
caveat that whatever land was found unnecessary for the adjudication of
the dispute "must be restored to the undisputed owners".The
majority verdict of 1994 came to haunt the country in 2002 as, quoting
from its passages, VHP laid claim to the acquired land even while the
title dispute was pending. Declaring plans to begin the construction of a
temple on the acquired land in the vicinity of the disputed site, VHP
mobilised kar sevaks from across the country to a mahayagna in Ayodhya.
It was then that the Godhra train-burning incident took place in
Gujarat, triggering a series of dramatic and far-reaching events which
culminated in Narendra Modi's ascent to the office of Prime Minister in 2014.
More than the dithering on the contempt matter, the backsliding in the Ayodhya context is evident from the farcical state of the criminal proceedings. To begin with, they are still at the stage of trial even after a lapse of 23 years. This has partly to do with the accused of the Babri Masjid demolition being split into two groups which are being tried separately on varying degrees of charges in two different courts in two different districts. While some 40 unknown kar sevaks are being tried in Lucknow for conspiring to demolish the mosque, eight Sangh Parivar leaders, including L.K. Advani, M.M. Joshi and Uma Bharati, are being tried in Rae Bareli on the lesser charge of addressing an unlawful assembly. Although the CBI special court had framed the conspiracy charge against both groups in 1997, the Allahabad high court four years later gave a reprieve to the leaders on the ground of a defect in a related executive notification.
Frowning upon conversion
As successive governments in Uttar Pradesh declined to cure the procedural flaw picked by the high court, it has resulted in the leaders being tried separately in Rae Bareli only for the lesser charge. The implication, much as it may stretch one's credulity, is that the leaders delivered inflammatory speeches in Ayodhya on the fateful day without being involved in the conspiracy to demolish the mosque. Repeated attempts to redress this anomaly have been spurned by the apex court.
The backsliding on secularism did not of course begin with the Ayodhya issue. Take the Supreme Court's ruling way back in 1977 on the equally contentious issue of conversions. It glossed over the pro-conversion declaration made in the Constituent Assembly by drafting committee member K.M. Munshi that it would be "open to any religious community to persuade other people to join their faith". Orissa and Madhya Pradesh, the two states that first passed anti-conversion laws, had however been mindful of Munshi's liberal definition of the freedom of religion and belief. So those two laws prohibited only the conversions made on the basis of extraneous factors such as force, fraud or allurement.
But the Supreme Court verdict, authored by Chief Justice A.N. Ray, frowned upon conversions based even on persuasion. It said, "If a person purposely undertakes the conversion of another person to his religion, that would impinge on the freedom of conscience." Having sidestepped the Constituent Assembly debates, Ray gave no explanation for disagreeing with the founding fathers on conversions.
Allowed to get away
Following Ray's example, Verma, the author of the 1994 Ayodhya judgment, upheld Hindutva in a subsequent case without any reference to the man who had coined that term, Vir Savarkar. This allowed Verma to assert that Hindutva, despite being conceived by Savarkar as a political ideology of Hindu supremacy, could not be "equated with narrow fundamentalist Hindu religious bigotry".
The provocation for the Hindutva judgment of 1995 was election petitions challenging allegedly communal speeches delivered by Shiv Sena leaders in a Maharashtra assembly election. On one of those petitions, Verma allowed Manohar Joshi to get away with the promise of establishing the first Hindu state in Maharashtra. Verma's controversial reasoning was: "In our opinion, a mere statement that the first Hindu state will be established in Maharashtra is by itself not an appeal for votes on the grounds of his religion but the expression, at best, of such a hope." Setting a dangerous precedent, Verma said that the promise of a Hindu state was not a "corrupt practice" under the election law "even though we would express our disdain at the entertaining of such a thought".
The
backsliding on cow slaughter, another topical subject, is even more
unmistakable. In 2005, the Supreme Court reversed its own position on
whether Article 48 of the Constitution permitted the slaughter of
animals that had ceased to be "milch and draught cattle", meaning when
they were too old to provide milk or carry loads and plough fields. The
earlier ruling, given in 1958 by a five-judge bench headed by Justice
S.R. Das, said that the ban on cow slaughter envisaged by Article 48 did
not extend to the cattle that was "not capable of milch or draught". As
a result of the 1958 verdict, various states allowed the slaughter of
cattle that could be classified as "useless". But all this changed in
2005 when a seven-judge bench headed by Justice R.C. Lahoti ruled that
the Article 48 ban extended to all cattle, irrespective of their age and
the strain they put on the availability of fodder. In his classic, The
Indian Constitution: Cornerstone of a Nation, Granville Austin wrote:
"Article 48 shows that Hindu sentiment predominated in the Constituent
Assembly." Clearly, the expansive interpretation given in 2005 to
Article 48 detracted further from India's commitment to inclusiveness.Whatever
the legal sophistry behind all such backsliding on secularism, it puts
in perspective India Today's spirited headline at the time of the Babri
Masjid demolition, "A Nation's Shame". The editors who chose that
headline could not have imagined though that there was another shame in
store: the failure so far to punish any of the people responsible for
what has been rated as the worst setback to secularism after Mahatma
Gandhi's assassination. Within two years of Gandhi's murder, eight were
convicted for conspiracy though their alleged leader, Savarkar, was
acquitted for want of evidence. The contrasting trajectories of the 1948
and 1992 crimes undermine the common assumption that the institutions
of the rule of law in India have matured and become more robust.
BJP stumps the court
...Did the Supreme Court itself not embolden the kar sevaks by its inaction after the construction of a platform at the Ayodhya site in July 1992 in defiance of its status quo order? Did Attorney General Milon Banerjee not inform the court on November 27,1992, that the Intelligence Bureau had warned of danger to the mosque? Did the judges still not grant permission for a symbolic kar seva, and even direct that the permission should be widely publicised? How could the Uttar Pradesh government have thereafter prevented large crowds from congregating at the site? Further, did the state not repeatedly tell the court that it would under no circumstances resort to firing at the kar sevaks? How can the court now fault it for not firing at those who crossed the police cordon and destroyed the mosque?
The Supreme Court gave room for such questions by attaching to its contempt notices, copies of an application for a contempt case filed by senior advocate O.P. Sharma. It simply used the allegations against each individual contained in his application to level, contempt charges against Kalyan Singh and the officers. Thus, though the court issued the notices suo motu, the contempt charges were actually levelled through Sharma's application. As it happened, the thrust of Sharma's allegations was that the tragedy could have been averted if only Kalyan Singh and the six officers had imposed Section 144 of Cr.P.C. and prevented the kar sevaks from congregating in lakhs. The court seems to have realised its vulnerability in this regard once the seven persons filed their counter-affidavits.
Manoj Mitta @1996
For the far more serious violations related to the demolition, all that the Supreme Court verdict said was: "Though the proceedings for suo motu contempt against the then chief minister of the state of Uttar Pradesh and its officers in relation to the happening of 6-12-1992 were initiated, those are pending and shall be dealt with independently."
Vandalised house of Mohammad Akhlaq, who was killed on suspicion of eating beef.
If the prioritisation of cases was indeed left to the discretion of each bench, what prevented Venkatachaliah, as Chief Justice, to take up Ayodhya matters with due urgency? "That was not entirely in my hands," he claimed. "The constitution of a bench is sub-ject to the availability and commitments of my brother judges." The reply was hardly convincing as only a little earlier, the Supreme Court had promptly taken contempt action against a bar leader who had been found to have abused an Allahabad High Court judge. The errant lawyer was suspended from practising for three years and even given a deferred jail term of six weeks. Pointing out the contrast, I asked Venkatachaliah how the contempt involved in the Babri Masjid demolition was any less serious than the one related to the judge-browbeating case. "You cannot compare cases in that manner," he asserted, seeking refuge in technicalities. "The proceedings on the December 6 event expanded as more parties sought to be impleaded. Their applications for additional contemners were allowed. The service of notice on these additional contemnors has taken a long time, thereby delaying the case."
Split on verdict
The technicalities cited by Venkatachaliah, a widely respected judge, for his alleged helplessness did little credit to the Supreme Court, reputedly the most powerful and activist court in the world. The reason I recall this interview is to draw attention to the backsliding on the issue of secularism on more than one occasion since the Babri Masjid demolition. Given the centrality of secularism to the idea of India, such backsliding is indicative of more than the routine dysfunctionality of the judiciary. Tied to the failure of the Supreme Court to dispose of the contempt case against Kalyan Singh & Co was, for instance, an unedifying split along religious lines within the five-judge bench which decided the validity at the same time of the Centre's acquisition of 67 acres from Hindu groups around the disputed site.
More than the dithering on the contempt matter, the backsliding in the Ayodhya context is evident from the farcical state of the criminal proceedings. To begin with, they are still at the stage of trial even after a lapse of 23 years. This has partly to do with the accused of the Babri Masjid demolition being split into two groups which are being tried separately on varying degrees of charges in two different courts in two different districts. While some 40 unknown kar sevaks are being tried in Lucknow for conspiring to demolish the mosque, eight Sangh Parivar leaders, including L.K. Advani, M.M. Joshi and Uma Bharati, are being tried in Rae Bareli on the lesser charge of addressing an unlawful assembly. Although the CBI special court had framed the conspiracy charge against both groups in 1997, the Allahabad high court four years later gave a reprieve to the leaders on the ground of a defect in a related executive notification.
Frowning upon conversion
As successive governments in Uttar Pradesh declined to cure the procedural flaw picked by the high court, it has resulted in the leaders being tried separately in Rae Bareli only for the lesser charge. The implication, much as it may stretch one's credulity, is that the leaders delivered inflammatory speeches in Ayodhya on the fateful day without being involved in the conspiracy to demolish the mosque. Repeated attempts to redress this anomaly have been spurned by the apex court.
The backsliding on secularism did not of course begin with the Ayodhya issue. Take the Supreme Court's ruling way back in 1977 on the equally contentious issue of conversions. It glossed over the pro-conversion declaration made in the Constituent Assembly by drafting committee member K.M. Munshi that it would be "open to any religious community to persuade other people to join their faith". Orissa and Madhya Pradesh, the two states that first passed anti-conversion laws, had however been mindful of Munshi's liberal definition of the freedom of religion and belief. So those two laws prohibited only the conversions made on the basis of extraneous factors such as force, fraud or allurement.
But the Supreme Court verdict, authored by Chief Justice A.N. Ray, frowned upon conversions based even on persuasion. It said, "If a person purposely undertakes the conversion of another person to his religion, that would impinge on the freedom of conscience." Having sidestepped the Constituent Assembly debates, Ray gave no explanation for disagreeing with the founding fathers on conversions.
Allowed to get away
Following Ray's example, Verma, the author of the 1994 Ayodhya judgment, upheld Hindutva in a subsequent case without any reference to the man who had coined that term, Vir Savarkar. This allowed Verma to assert that Hindutva, despite being conceived by Savarkar as a political ideology of Hindu supremacy, could not be "equated with narrow fundamentalist Hindu religious bigotry".
The provocation for the Hindutva judgment of 1995 was election petitions challenging allegedly communal speeches delivered by Shiv Sena leaders in a Maharashtra assembly election. On one of those petitions, Verma allowed Manohar Joshi to get away with the promise of establishing the first Hindu state in Maharashtra. Verma's controversial reasoning was: "In our opinion, a mere statement that the first Hindu state will be established in Maharashtra is by itself not an appeal for votes on the grounds of his religion but the expression, at best, of such a hope." Setting a dangerous precedent, Verma said that the promise of a Hindu state was not a "corrupt practice" under the election law "even though we would express our disdain at the entertaining of such a thought".
EXCERPT
November 15,1993BJP stumps the court
...Did the Supreme Court itself not embolden the kar sevaks by its inaction after the construction of a platform at the Ayodhya site in July 1992 in defiance of its status quo order? Did Attorney General Milon Banerjee not inform the court on November 27,1992, that the Intelligence Bureau had warned of danger to the mosque? Did the judges still not grant permission for a symbolic kar seva, and even direct that the permission should be widely publicised? How could the Uttar Pradesh government have thereafter prevented large crowds from congregating at the site? Further, did the state not repeatedly tell the court that it would under no circumstances resort to firing at the kar sevaks? How can the court now fault it for not firing at those who crossed the police cordon and destroyed the mosque?
The Supreme Court gave room for such questions by attaching to its contempt notices, copies of an application for a contempt case filed by senior advocate O.P. Sharma. It simply used the allegations against each individual contained in his application to level, contempt charges against Kalyan Singh and the officers. Thus, though the court issued the notices suo motu, the contempt charges were actually levelled through Sharma's application. As it happened, the thrust of Sharma's allegations was that the tragedy could have been averted if only Kalyan Singh and the six officers had imposed Section 144 of Cr.P.C. and prevented the kar sevaks from congregating in lakhs. The court seems to have realised its vulnerability in this regard once the seven persons filed their counter-affidavits.
by Manoj Mitta
Manoj
Mitta is a fellow with National Endowment for Democracy, Washington DC.
He is working on his third book, which is on the impunity for caste
violence.
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