Chief Justice of India J.S. Khehar has bowled a googly by suggesting that parties in conflict in Babri Masjid – Ram Janma complex adapt a give and take approach and even offered himself as a mediator. When the parties to the title suit have not approached the Supreme Court, the CJI’s judicial overreach appears bizarre. More so since the court will look into the CBI appeal against Allahabad High Court to reopen the charges against the alleged conspirators who were responsible for the Babri Masjid demolition.
The Ayodhya conundrum begun 68 years back on 22nd December, 1949 when Santh Digvijay Nath of Gorakpur Math with his follower’s surreptitiously placed Ram Lalla idols inside the Babri Masjid. The problem could have been nipped in the bud if the then government of Uttar Pradesh had immediately removed the idols. Instead the government locked the place and allowed priests to perform on puja. The delaying tactics of the local administration and excessive concern for the feelings of the majority community has created a problem, which has remained a festering sore in India’s secular fabric. The major issue now is, whether the matter can be settled out of court by the parties concerned through negotiation or it should be settled by the Supreme Court.
The sweeping mandate in Uttar Pradesh and anointing of a Mahanta from Gorakhpur as the Chief Minister of UP has lent an incendiary and emotive tone to this dispute. While liberal Muslims believe that it’s time to abdicate their claims to the controversial site, conservative Muslim organisations like Babri Masjid Action Committee are sceptical about the suggestion for talks, as past attempts for out of court settlement have been unsuccessful. In this backdrop, it would be useful to recount some of the deliberation that took place during 1990-92, before the Masjid was demolished on 6th December, 1992. The National Integration Council was of the view that Article 138(2). Under Article 138(2), a law can be enacted by the Parliament to enlarge the jurisdiction of the Supreme Court to have “further jurisdiction and powers with respect to any matter in the Union List as the Parliament by law confer”. The decision of the Supreme Court would be legally binding and enforceable on all the concerned parties. Though all the parties including the opposition in the National Integration Council were more inclined towards exercising the option of Article 138(2), this never saw the light of the day due to last minute prevarication.
Nani Palkhivala, the famous legal luminary, was strongly opposed to such a reference under Article 138(2). To quote him “I know of no country where highest court is asked to decide questions of pure history or archaeology. The court cannot be asked to decide questions of opinion, history or mythology. The executive is not entitled to shift the responsibility which the constitution has squarely placed on its shoulders. Judicial pronouncement can never be a cover for inadequacy of the government or bankruptcy of the political process”. Chief Justice Khehar seems to be echo the opinion given by Nani Palkhivala on 31st December, 1992.
It would be interesting to note that the National Integration Council met on four occasions (1990-92), but failed to come to an amicable settlement. In its last meeting on 23rd November, 1992 the NIC authorised the Prime Minister to take such action as he considered fit to deal with the situation. This clearly shows how even the NIC put the problem of resolving the dispute into lap of the Prime Minister. History of the Babri Masjid demolition is testimony to the fact how prevarication on the part of the then Prime Minister to exercise his constitutional remit under Article 355 viz. “the duty of the union to protect states against internal disturbance” has frayed our secular fabric irrevocably.
The Allahabad High Court gave a judgement in 2010, ordering a three way division of the disputed site measuring a little over two acre viz. partitioning the land between Ram Lalla, the Sunni Wakf Board and the Nirmohi Aakhada. The Supreme Court on 10th May, 2011, however, has granted a stay on the Allahabad High Court verdict where it has called for the trifurcation as “something strange” as the fundamental nature of the decree about the partition of land was not sought by any party.
It may be recalled that Maharaj Swami Sakshi, a BJP MP in an interview to Hindustan Times on 24th January, 1993 had written that “we shall do to Mathura and Kashi what we did to Ayodhya when Muslims did not agree to our terms in Ayodhya we took it forcefully. Our slogan is give us the three places of worship; otherwise we will take three thousand which includes the Jama Masjid as well”. With religious fundamentalism rearing its head again, and a brutal majority in UP, the suggestion of the Chief Justice to resolve the dispute between contending parties is unlikely.
The history of our freedom struggle was witness to a conflict of ideology between the liberal and the extreme voices, starting with Tilak and Gokhale. The sane voice of Gokhale became the forerunner of the nonviolent movement of Mahatma Gandhi that embraced all communities and provided a secular mosaic to our freedom struggle. Secularism is a liberal concept where the state treats every religion equally, without patronizing any, while protecting the interests of the minorities under Article 29. This secular character was unfortunately torn asunder by Rajiv Gandhi when he brought in the Muslim Women Protection Act 1988, negating the judgement of Shah Bano Case, where the court considered the law of the land to prevail over Muslim Personal Law in matters of payment of maintenance to divorced Muslim women under Section 125 of CrPC. This provided a trigger for the Ayodhya Movement by the BJP which had only 2 seats in 1984 to achieve an absolute majority in 2014. Mr. R.D. Pradhan the then Home Secretary writes in his book “My years with Rajiv and Sonia” how he had told the PM: “you are the natural leader of Muslim youth as well as of young Indians. Do not compromise your image as a young and progressive leader”. Mr. Modi is perceived as the leader of the youth of India, with the promise to usher development for all. Ayodhya is a tinder box and also a moment of reckoning for him. He must transcend narrow religious predilection, and majoritarianism allow the Supreme Court to give its mandate, to resolve the conundrum.
The views expressed are personal
The author teaches Constitutional Law