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print version(published earlier in The Times of India)
Three days after a Ram idol was placed under the Babri Masjid’s central dome, Prime Minister Jawaharlal Nehru shot off a letter to UP chief minister G B Pant directing that the mischief be undone. His reason: "A dangerous example is being set there, which will have bad consequences."
But Nehru’s concerns were overridden by the local administrator, Faizabad’s deputy commissioner K K Nayar. Even as he acknowledged that the installation of the idols was "an illegal act", Nayar refused to remove them from the mosque. His reasoning was that "the depth of feeling behind the movement ... should not be underestimated."
It was against the backdrop of this battle between secular and sectarian views that the first of the four title suits was filed on January 16, 1950. In allowing the idols to remain where they were placed on December 23, 1949, and in placing religious sentiment above the rule of law, the Allahabad high court verdict 60 years later seems to have preferred Nayar’s position to that of Nehru.
Though thousands of pages in this verdict have been devoted to quotes from Hindu scriptures, it made little effort to examine the illegality of the 1949 act. The mischief played with the idols, in a bid to convert a masjid into a mandir, was central to the adjudication of the title suits.
Yet, the three judges on the bench, despite delivering separate judgments, adopted the common approach of treating the forcible installation of idols as a fait accompli. They did not dare question its legality or validity. This, despite the fact that the bench had, in May 2009, specially called for and placed on record the original file of the district administration that dealt with the 1949 episode.
The verdict could have been radically different had the judges mustered the courage to analyse this crucial issue. Advocate Anupam Gupta, who grilled an array of leaders on the Babri Masjid demolition before the Liberhan Commission, told TOI: "Since the title suits had derived from the installation of idols, the judges would have had to acknowledge that the Hindu claim was based on a patent illegality and that nothing said about the history of the Hindu belief prior to 1949 would have cured this illegality."
In its anxiety to be pragmatic or conciliatory, the high court also pulled its punches on the demolition of the mosque in 1992 although it was a violent interference with the subject of the title suits. While it dwelt extensively on the Hindu "bent of mind" in the context of the belief about the exact location of Ram’s birthplace, the high court did not attempt any such analysis of the mentality that propelled the demolition.
As a result, in a major blow to secularism, the high court allowed the vandals of 1992 to turn into the victors of 2010. This has made a mockery of the Supreme Court’s 1994 declaration while reviving the Ayodhya title suits after a two-year limbo: "The Hindu community must bear the cross on its chest, for the misdeed of the miscreants reasonably suspected to belong to their religious fold."
Far from bearing the cross for the demolition, Hindu groups seem to have intimidated the high court into coming up with a solution that provides much cause for concern to Muslims and believers of secularism. By accepting faith as the determining factor for allotting the area under the central dome to Hindus, the system has shown no remorse to the affected community.
The high court’s refusal to let the illegality of the 1949 and 1992 events have a bearing on the title suits will mean that there can be no closure to the Ayodhya dispute any time soon. Its partition scheme has ended up vindicating, however unwittingly, those very forces that had so brazenly undermined India’s commitment to secularism. As jurist Tahir Mahmood puts it, "What had begun as a title suit ended up with a decree of partition. Religious beliefs and sentiments had triumphed over historical facts and legal precepts. The judicial anxiety reflected in the judgment is understandable but its legal tenability is not beyond reproach."
The consolation is that the verdict could have been worse if the judgment delivered by Justice D V Sharma, awarding the entire disputed site of 2.7 acres to Hindus, did not turn out to be a minority view on the bench. Sharma’s judgment is an unabashed celebration of the fundamentalist Hindu perspective on the Babri Masjid.
The Ayodhya verdict actually fits into a pattern displayed by the Indian judiciary to suppress inconvenient facts. The Allahabad high court’s failure to examine the implications of the 1949 and 1992 events is reminiscent of an infamous omission by the Supreme Court in its much touted judgment upholding Hindutva.
This ideology of Hindu hegemony received judicial approval because the Supreme Court, while equating Hindutva with the liberal ethos of Hinduism, steered clear of the fact that the term had been coined by Veer Savarkar to suggest that India belonged only to those for whom it is both birthplace and sacred land.
Thanks to this vital omission, the BJP derived much legitimacy from the SC verdict on Hindutva. It remains to be seen how, despite the restraint displayed by it for the time being, the BJP will politically leverage the verdict in the Ayodhya case. It is no coincidence that Nayar who defied Nehru’s order to remove the idol from the Babri Masjid went on to become an MP of Jan Sangh, forerunner of the BJP.
(Copyright © 2010 Bennett, Coleman & Co. Ltd.)
