Ram mandir: Why I find SC giving priority to 'religion' shocking
The apex court should not only be fair, but it must also be seen as fair.
On March 21,
Chief Justice of India JS Khehar proposed to mediate an out-of-court
settlement to the Ayodhya dispute since it's a matter of "sentiments and religion".
He even offered that other "brother judges" could replace him if the "parties" wanted, as "these are issues of sentiments".
But the problem is that none of the parties were present in court.
The court was hearing BJP leader Subramanian Swamy’s plea
for constituting a bench to hear a batch of petitions challenging a 2010
Allahabad High Court order on the matter. And Swamy was not an original
party to the case.
After Ayodhya-based Hashim Ansari, the original litigant, died last year, his son, Iqbal Ansari, has taken up the matter.
His lawyer, MR Shamshad, pointed out that they were
astounded by the CJI's offer, and asked, "How did this appearance in the
Chief Justice's court and the comments come about?" He stressed that
"any decision cannot be one-sided."
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| CJI JS Khehar has proposed to mediate an out-of-court settlement to the Ayodhya dispute since it's a matter of "sentiments and religion". |
To understand why this is happening it is necessary to go back into history.
In the second half of 1949, socialist leaders Acharya
Narendra Dev and Acharya Kripalani were planning to stand for
by-elections in Faizabad.
The Uttar Pradesh Congress leadership, led by GB Pant, had
heightened the Hindu religious sentiments in Ayodhya-Faizabad. And on
the night of December 22,1949, some people managed to enter the Babri
Masjid and installed the idols of Ram Lalla inside it.
Incidentally, the name Babri Majid (Mosque of Babur) is a
misnomer. Babar never came to Ayodhya. It was his nobleman Mir Baqi who
had built the mosque.
Nevertheless, the then prime minister Jawaharlal Nehru asked Pant to get the idols removed, and offered to send his secretary to facilitate the effort. But Pant was adamant.
The deputy commissioner of Faizabad filed a written
statement in suit No.2 of 1950 on April 5 in which he denied that the
Hindu plaintiff was entitled to any relief prayed for by him and stated:
1) The property in suit is known as Babri Masjid and it has
for a long period been in use of a mosque for the purpose of worship by
the Muslims. It has not been in use as a temple of Sri Ram Chandraji.
2) That on the night of December 22, 1949, the idols of Sri Ram Chandraji were surreptitiously and wrongly put inside it.
At this stage the RSS played no significant role. The
Bharatiya Jana Sangh was founded later in 1951. A civil judge in
December 1950, gave the rights of worship only to the Hindus, and
restrained the removal of the idols.
A later judge cited copies of affidavits allegedly from
Muslims that the mosque had not functioned from 1936. No opportunity was
given to the Muslim defendants or the state to file counter-affidavits.
A division bench of the Allahabad High Court on April 26,
1955, criticised the civil judge for placing reliance on these
affidavits and not allowing the defendants to place their own
counter-affidavits.
In May 1986, there was a strong BJP movement to allow Hindu devotees to pray inside the disputed mosque.
Around the same time, there was another movement led by the
Muslim clergy against the Supreme Court judgment in the Shah Bano case,
which gave Muslim women the right to maintenance.
As the Muslim clergy succeeded in convincing Rajiv Gandhi’s
Congress government in overturning the SC judgment it was largely seen
as Muslim appeasement. That added more insult to the already injured
Hindu pride over the Babri mosque standing at the purported birthplace
of Lord Ram.
Under "double" fire, Rajiv Gandhi had the district
magistrate and superintendent of police to testify in the Faizabad
district court that they did not apprehend any law and order difficulty
in enforcing this decision — to allow Hindu devotees to pray at the
mosque.
The court met on a Saturday and the Muslim side was not informed or heard.
In the 1990s, PM PV Narasimha Rao stood by as the
fortifications of the Babri Masjid were removed. A spate of official
letters came much later. The masjid matter came before the Supreme
Court. The advocate for the Muslim side, OP Sharma, warned the court
that in an earlier instance of a temple being built, "militant" Hindus
were allowed to congregate, forcing the police to back down fearing high
casualties.
But the court ruled that the kar sevaks should be treated
as state guests. It, however, noted OP Sharma's warnings in their
judgment of November 29, 1992. They were influenced by a number of BJP
leaders certifying that there would be no assault on the masjid. These
promises were suddenly withdrawn before the assault on December 6, 1992.
The central paramilitary forces (CPMF) sent by the PM were
instructed not to fire unless ordered to. The CRPF forces guarding the
mosque marched out. The masjid was finally destroyed. When a group of
citizens met president Shankar Dayal Sharma on the morning of December
7, he told us that he made a statement at 5 pm on December 6, asking the
Cabinet to meet.
The Cabinet met only at 6 pm, by which time the makeshift
Ram mandir was already built. Intriguingly, Justice MS Liberhan, who was
given 30 days to submit a report, took 17 years. The evidence compiled
by the UP CID of the demolition, including videotapes and 48 audio
cassettes, verified and seen by some citizens, disappeared after the
initial period.
These details, which are not known by many, show the
context in which the CJI made his comments. The Muslim side was
obviously aggrieved because they had been let down earlier on several
occasions.
The court, if they had known this history, would have been
more restrained and would have hopefully taken a little more time to
make a more nuanced proposal. After all, the judiciary's decisions are
based on laws and the Constitution, not sentiments.
There is no religion, sect, caste, class, gender, region or
philosophy guided by just "one" sentiment. In a country known for its
diversity, pluralism, its vaunted laws and Constitution, it is shocking
to see the court giving priority to "religion and sentiments".
Tulsidas, when he wrote the Ramcharitmanas, made no
reference to the destruction of a Ram temple which supposedly happened
during that period. Even Bhakti poets like Kabir never spoke of such an
event. There are other similar versions.
CJI Kehar is perfectly within his rights to facilitate a
solution to the Babri Masjid/Ram mandir dispute. But I humbly submit to
the learned judge that in a multi-cultural India, as he is undoubtedly
aware of, there are many other disputes. And the Supreme Court, from its
own experience, should not only be fair, but it must also be seen as
fair.
