Arun Shourie
For a year and a half you keep issuing statements to the press, and writing ostensibly scholarly articles, and holding forth in interviews that the Babri Mosque was not, most definitely not, built by demolishing or even on a site of a temple. Documents of the other side are sent to you. You are nominated by the All India Babri Mosque Action Committee as an expert who will give his assessment of them. A meeting is scheduled. Before that you meet the then Director General of Archeology who had supervised the excavations at the site. The day the meeting is to begin the newspapers carry yet another categorical statement from "intellectuals", again asserting the line convenient to the AIBMAC. You, of course, are among them.
The meeting commences. on point after point, on document after document, your response is that you have not studied the evidence, that, therefore, you require time to visit it. You are not a field archeologist, you say, and will, therefore, nominate another person, and he too will naturally require time. The person happens to be present. You are informed that the person has not only studied the evidence, he has met and discussed the matter with the Director General, Dr B B Lal, under whose supervising the excavations had been conducted in 1975. others too are named whom he has met for the purpose. But that was in another capacity, you say, now you will need time.
On behalf of the Government, the officer present says that the records of the excavation, maps, four types of narrative accounts, photographs, are available, that Dr Lal has agreed so that they can be inspected the very next day. No, we will need time, you say.
You are on to a new tack. But why has Dr Lal not stated a definite conclusion? In fact it turns out that he has: a video cassette of the interview he gave to the BBC is produced. Can't see it now as there is no VCP, we will need time, you say.
The next day you don't even turn up for the meeting. An expert of the AIBMAC, a Marxist, an intellectual whose name appears invariably in the statements propagandising the AIBMAC point of view.
I summarize; but the account applies more or less to the four professional "experts" who appeared as the AIBMAC's nominees in the meeting on January 24, 1991. The other "experts" of the AIBMAC were just its own office bearers. They went one better. They denied the contents. Indeed they denied the very existence of books written not just by Islamic historians and authors, the photocopies of the relevant pages from which had all been supplied weeks earlier, but they also denied the knowledge of even standard works like the Encyclopedia Britannica. That done, the next day they did not turn up either.
THE ISSUES SPECIFIED
The one thing on which Chandra Shekar's government can claim to have catalysed progress is the Ram Janmabhoomi controversy. This was done in two ways: by getting the two sides to begin talking to each other, and by pin-pointing the issue. The issue Chandra Shekar emphasised was: Was the mosque built by demolishing a Hindu temple or structure?
And in this, Chandra Shekar was adhering to what had been stated categorically by Shri Syed Shahbuddin: "I say that if it is proved that the Babri Masjid has been built after demolishing the Ram Janmabhoomi Mandir on its place, then such a mosque built on such a usurped land deserves to be destroyed. No theologian or Alim can give a fatwa to hold Namaz on it." And this view, in turn, reflects the classical expositions of the law. For instance, the Fatwa-e-Alamgiri categorically states: "It is not permissible to build a mosque on unlawfully acquired land. There may be many forms of unlawful acquisition. For instance, if some people forcibly take somebody's house (or land) and build a mosque or even a Jama Masjid on it, then Namaz in such a mosque will be against the Shariat." In consultation with the two sides, therefore, Chandra Shekar made the issue specific. Each side agreed to submit evidence on this specific issue.
THE AIBMAC EVIDENCE
I was appalled when I saw what the AIBMAC had furnished. It was just a pile of papers. You were expected to wade through them and discover the relevance which flowed from them. I read them dutifully, and was soon convinced that the leaders of the AIBMAC and the intellectuals who had been guiding them had themselves not read them. It wasn't just that so much of it was the stuff of cranks, pages from the book of some chap, to the effect that Ram was actually a Pharaoh of Egypt. Or an article by someone based, he says, on what he has learnt from one dancer in Sri Lanka, and setting out a folk story, knowledge of which he himself says is confined to a small part of a small district in that country, to the effect that Sita was Ram's sister whom he married, etc.
It was not just that so much of the rest was as tertiary as can be -- articles after articles by sundry journalists which set out no evidence -- it was that the overwhelming bulk of it was just a pile of court papers selective court judgment underlying it, some merely the plaints, i.e. the assertions of the parties that happen at the moment to be convenient. And it was that document after document in this lot buttressed the case not of the AIBMAC but of the VHP!
They show that the mosque had not been in use since 1934. They show that it had been in utter neglect: the relevant authority testifying at one point to the person-in-charge being an opium addict, to his being thoroughly unfit to look after even the structure. They show different groups or sects of Muslims fighting each other for acquiring the property, and with the descendants of Mir Baqi, the commander who built the structure. They show that the lands, etc., which were given to them by the British were given not so that they may maintain the structure through the proceeds but so that they may maintain themselves, and that they were given these for services, political and military, they had rendered to the British.
It was evident too that it would be difficult to sustain the claim that the structure was a waqf, as was being maintained now. It was not even listed in the lists of either the Shia or Sunni Waqf Boards, as the law required all waqf properties to be. While the AIBMAC has striven now to rule out of court British gazetteers -- as these, after meticulous examination of written and other evidence, record unambiguously that the mosque was built after demolishing the Ram Janmabhoomi temple -- the rulings and judgments filed by the AIBMAC rely on, reproduce at length and accept the gazetteers on the very point of the issue, indeed, they explicitly decree that the gazetteers are admissible as evidence.
They show the Hindus waging an unremitting struggle to regain this place, held, the documents say, "most sacred" by them. They show them continuing to worship the ground inspite of the mosque having been super imposed on it. They show them constructing structures and temples on the peripheral spots when they are debarred from the main one. They show the current suit being filed well past the time limit allowed by our laws.
On regarding the papers, the AIBMAC had filed as "evidence", I could only conclude, therefore, that either its leaders had not read the papers themselves, or that they had no case and had just tried to over-awe or confuse the government, etc., by dumping a huge miscellaneous heap.
THE VHP DOCUMENTS
In complete contrast, the VHP documents are pertinent to the point, and have not as yet been shown to be deficient in any way. They contain the unambiguous statement of Islamic historians, of Muslim narrators, of the grand-daughter of Aurangzeb, to the effect that the mosque was built by demolishing the Ram temple. They contain accounts of European travelers as well as official publications of the British period -- the gazetteers of 1854, 1877, 1881, 1892, 1905; the Settlement Report of 1880; the Surveyor's Report of 1838; the Archeological Survey Reports of 1891 and 1934 -- all of them reaffirming what the Muslim historians had stated: that the mosque was built by destroying the temple, that some of the pillars are in the mosque still, that the Hindus continue to revere the spot and struggle unremittingly to reacquire it.
They contain revenue records of a hundred years and more, which list the site as "Janmasthan" and specify it to be the property of the mahants. They also show how attempts have been made to erase things from these records and superimpose convenient nomenclatures on them -- crude and unsuccessful attempts, for while the forgers have been able to get at the records in some offices they have not been able to get at them in all the offices!
Most important of all, they contain accounts of the archeological excavations which were conducted at the site from 1975 to 1980. These are conclusive: the bases and the pillars, the stone of which the pillars are made, everything coheres. And everything answers the issue the government and the two sides had specified in the affirmative, and unambiguously so.
"CONTEMPORARY ACCOUNT"
"But where is a contemporary account of the temple being destroyed?" At first it was, "Show us any document." When the gazetteers were produced, it was, "But the British wrote only to divide and rule." (Why, then, do you keep producing judgments of British Magistrates, pray?) "Show us some non-British document, some pre-British document." Now that these too are at hand, the demand is for contemporary account. This when it is well-known that in the contemporary account of the period -- Babar's own memoir -- the pages from the time he reaches Ayodhya, 2nd April 1528 to 18th September 1528 are missing lost, it is hypothesised, in a storm or in the vicissitudes which Humayan's library suffered during his exile.
It is not just that this latest demand is an after thought. It is that in the face of what exists at the site to this day -- the pillars, etc. -- and in the face of archeological findings, and what has been the universal practice as well as the fundamental faith of Islamic evangelists and conquerors such accounts are not necessary. But there is even more conclusive consideration. Today a contemporary account is being demanded in the case of the Babri Mosque. Are those who make this demand prepared to accept this as the criterion - that if a contemporary account exists of the destruction of a temple for constructing a mosque - the case is made?
This entry for 2nd September 1669, for instance, is as contemporary an account as any can ask for: "News came to Court that in accordance with the Emperor's command his officers had demolished the temple of Vishwanath at Banaras." The entry for January 1670 set out the fact for the great temple at Mathura: "In this month of Ramzan, the religious minded Emperor ordered the demolition of the temple at Mathura. In a short time by the great exertions of his officers the destruction of this strong center of infidelity was accomplished. A grand mosque was built on its site at vast expenditure. The idols, large and small, set with costly jewels which had been set up in the temple were brought to Agra and buried under the steps of the Mosque of Begum Sahib in order to be continually trodden upon. The name of Mathura was changed to Islamabad." The entry for 1st January 1705 says: "The Emperor summoning Muhammed Khalid and Khidmat Rai, the darogha of hatchetmen, ordered them to demolish the temple at Pandarpur, and to take the butchers of the camp there and slaughter cows in the temple. It was done."
If the fact that a contemporary account of the temple at Ayodhya is not available leaves the matter unsettled, does the fact that contemporary accounts are available for the temples at Kashi, Mathura, Pandharpur, and a host of other places, settle the matter? One has only to ask the question to know that the "experts" and "intellectuals" will immediately ask for something else.
HISTORICITY
"But there is no proof that Ram himself existed; nor are any of the other facts about him proven."
The four Gospels themselves, to say nothing of the work that has been done in the last hundred years, differ on fact after fact about Jesus - from the names of his ancestors to the crucifixion and resurrection. The Quran repudiates even the most basic facts about Jesus Christ - it emphatically denounces the notion that he was the Son of God, it repudiates the notion of his virgin birth, it insists that he was not the one who was crucified but a look alike, thereby putting the question of resurrection out altogether. And which member of the AIBMAC will say that the Quran is not an authentic recounting of the facts? Does that mean that every single church rests on myth?
Nor is the historicity of the Prophet the distinguishing feature about him. Every ordinary person living today is historically verifiable after all. The unique feature about the Prophet is that Allah chose him to transmit the Quran, but it would be absurd to ask anyone to prove the fact of Allah having chosen him. It is a matter of faith.
Indeed, the uniqueness of the Quran itself is a matter of faith. What we have read, and revere, is the reproduction of the original which lies in heaven inscribed on tablets of gold. And it is the contents of that original which Allah transmitted through the angel Gabriel to the Prophet. Heave, the original on tablets of gold, Allah's decision, Gabriel -- do we prove these?
They, too, are matters of faith. And every mosque is a celebration of those separate foci of faith.
Specific mosques are even more so. The great Al-Aqsa mosque marks the print which the Prophet's foot made as he alighted from the winged horse which had carried him on his journey. The winged horse, the imprint of one particular foot -- in regard to these would we entertain a demand for "proof"? The Hazratbal mosque in Kashmir enshrines what we revere as the hair of the Prophet. Would we think of proving the matter?
And yet that is what we are insisting the devotees of Ram do.
CONCLUSION
The Muslim laity have been badly misled, and now been badly let down by those who set themselves up as their guardians and sole spokesmen. First, they created the scare that were any reasonable solution to be accepted on this matter, Islam would be endangered. Now they have failed to substantiate their rhetoric. Now that they seem to be finding excuses to withdraw from examining the evidence, we are liable to be plunged back into the vicious politics of manipulating politicians by tempting them with promises of delivering banks of votes -- that is, the precise politics which has fermented the current reaction.
We can stem the relapse. As the "experts" have withdrawn, each of us should secure the documents submitted by the two sides and examine them in the minutest detail. Once we do so it will be that much more difficult for propagandists to thwart this singular effort to introduce reason and reasonableness into the problem.
(Reproduced from his column "As I see it.")
Showing posts with label AIBMAC. Show all posts
Showing posts with label AIBMAC. Show all posts
Wednesday, May 28, 2008
Did the Court Ask, What is Mohd Aslam�s Locus Standi?
Arun Shourie
"What is the VHP? Whom does it represent? What is its locus standi?", the Supreme Court asked the other day -- and it seemed to have done so in a tone that triggered much delight among secularists.
��A strange question,�� the PM remarked in the Rajya Sabha. A member was up and shouting, actually several secular ones were, interrupting the Prime Minister. Who are the VHP?... They don�t represent the Hindus... They will put a bullet through me..., so what?... The members seemed quite beside themselves. If the mere mention of its name causes so much reaction, the PM observed, then it certainly has locus standi.
In matters of religion and faith, standing is not acquired by winning elections, he said. It depends on the esteem in which people come to hold one...
A telling answer in itself. And it left the critics non-plussed.
Another side to the question that had fallen from the Bench too would have struck you. The Bench did not ask, as the Constitution Bench had not asked, ��Who is Mohammed Aslam, alias �Bhure�? Whom does he represent? What is his locus standi?�� It did not ask, ��What is the Babri Masjid Action Committee? Whom does it represent? What is its locus standi?�� It did not ask, ��What is the �All India Muslim Law Board�? Whom does it represent? What is its locus standi?�� How is it that doubt assailed it only in regard to the Vishwa Hindu Parishad?
To put the matter at the least, the Bench could have looked up the Supreme Court�s own judgement in the Ayodhya case itself! ��The movement to construct a Ram temple at the site of the disputed structure gathered momentum in recent years which became a matter of great controversy and a source of tension,�� the judgement quoted the (Narasimha Rao) Government�s ��White Paper�� as saying. ��This led to several parleys the details of which are not very material for the present purpose. These parleys involving the Vishwa Hindu Parishad (VHP) and the All India Babri Masjid Action Committee (AIBMAC), however failed to resolve the dispute...�� Again, ��At the centre of the Ram Janma Bhumi - Babari Masjid dispute is the demand voiced by the Vishwa Hindu Parishad (VHP) and its allied organisations for the restoration of a site said to be the birthplace of Sri Ram in Ayodhya...��
Yet again, ��The VHP and its allied organisations base their demand on the assertion that...�� And yet again, ��The demand of the VHP has found support from the Bhartiya Janata Party...�� And yet again, ��It was also stated by certain Muslim leaders that if these assertions were proved, the Muslims would voluntarily hand over the disputed shrine to the Hindus. Naturally, this became the central issue in the negotiations between the VHP and the AIBMAC.��
But suddenly, What is the VHP? Who does it represent? What is its locus standi?
In any event, that allusion to ��parleys�� holds a lesson we will do well to remember. One of the best things Mr Chandrashekhar did during his brief Prime Ministership was to get the two sides to agree that the only way to make progress was to exchange evidence on the matter. The two sides started meeting and exchanging documents and written arguments. The Babri Masjid Action Committee was guided by a clutch of Marxist historians -- actually, ��guided by�� is not quite right: it seemed just the front for these ��eminent historians��. The latter used the offices and facilities of the ICHR that they then controlled to prepare the AIBMAC submissions -- a fact that led the then Member Secretary to resign from his post.
The ��evidence�� that the Babri Masjid group submitted was no evidence at all. It was just a miscellaneous pile -- much of it puerile: that Rama was a King of Egypt, that he was born in Afghanistan, and the rest!
The VHP marshalled an array of evidence from archaeological sources, from historical records, from literary sources. That was the end of the ��parleys��! Realising that they could produce nothing to match what the VHP had submitted, the Marxist historians and the AIBMAC gentry just stopped attending the meetings. And it was this withdrawal, and the consequential death of the talks that Mr Chandrashekhar had initiated, as much as anything else that triggered the chain of events that led ultimately to the destruction of the mosque.
I did not doubt for a moment that the new efforts of the Shankaracharya of Kanchi would meet exactly the same fate. And for good reason. In one of the letters that he included in his 'A Bunch of Old Letters', Pandit Nehru used a phrase about Jinnah that describes this bunch, and its invariable device to the dot: ��Mr Jinnah�s permanently negative answer,�� Panditji wrote. This is the singular negotiating tactic of such individuals: just go on rejecting every formula that the other fellow brings up.
And the tragedy is -- the self-inflicted tragedy is -- that there always are persons, groups, powers that insist that the onus of producing the next formula, some formula which will incorporate an even greater concession to the other fellow is on us. And in the end we give in to this insistence. The power and groups that keep insisting that we go on producing new formulae: the British on the question of partition, the host of interlocutors on Kashmir, the secularists on the Ram Janmabhumi.
And the ones who merely keep deploying the ��permanently negative answer��: Jinnah kept rejecting every formula on partition; Pakistan keeps rejecting every formula on Kashmir; the Babri Masjid votaries keep, and will keep rejecting every formula on the Janmabhumi.
And the infuriating part is that the advice to engage in a dialogue is always directed at us -- the Congress on the question of partition, India on Kashmir, the Hindus on the Janmabhumi! It is because of this unbroken, unvarying pattern of 75 years that the new Interim Order of the Supreme Court fills me with foreboding -- doubly so.
The first concerns dialogue, negotiations. In its 1994 judgement the Supreme Court also had expressed the same pious faith: ��This is a matter suited essentially to resolution by negotiations which does not end in a winner and a loser while adjudication leads to that end,�� the Court said. ��It is in the national interest that there is no loser at the end of the process adopted for resolution of the dispute so that the final outcome does not leave behind any rancour in anyone. This can be achieved by a negotiated solution on the basis of which a decree can be obtained in terms of such solution in these suits. Unless a solution is found which leaves everyone happy, that cannot be the beginning for continued harmony between �we the people of India�.�� The same touching faith! Doomed to the same outcome.
But the least that this route requires to succeed is that the Executive has leeway, that it has a wide enough field over which it can bring the contenders closer. The Supreme Court in its 1994 judgement had left this space -- recall, for instance, the passages regarding the undisputed area. The Interim Order has snatched that space away completely. And taken into the judicial lap what the Constitution Bench had realised was not well suited for resolution through judicial adjudication.
The other omen is of an even darker hue. What the Supreme Court had held about the status quo being maintained only on the disputed site, what the Court had said about it being not just permissible but desirable that the undisputed area be handed back to its Hindu owners -- all this was important, but of far lesser importance than another feature of that judgement, a feature that was of foundational significance.
An argument had been advanced on behalf of Muslims -- the Court remarked that it had been advanced with ��vehemence��. This was the familiar assertion that once a mosque has been built on a piece of land, irrespective of who owned the plot earlier, irrespective of what might have stood on it earlier, irrespective of whether the structure had subsequently been used or not, the land would always be a possession of Muslims.
It was contended that this was the position under Muslim Law, and therefore this is what must hold in this case too -- whether a temple stood on the land earlier, whether namaz had been offered at the site since 1949 etc., all these were essentially irrelevant questions. And that the acquisition of the site by the Government for determining its true owners was invalid on this ground alone: secular laws like the Statute of Limitations, the laws regarding acquisition of property by the State etc., do not apply at all to either a mosque or the site on which it was once built, it was argued on behalf of Muslims.
The Supreme Court dealt in detail with this question -- because of the vehemence with which this argument had been advanced, it said. In doing so it laid down three vital principles. First, it held that what will apply in India is not some abstraction called Mahomedan Law, but ��Mahomedan law as approved by Indian courts��.
Second, it reiterated what Indian courts had from the British period consistently held in regard to the status of a mosque: namely, that a mosque is just another immovable property; that, therefore, the Statute of Limitations applies to it exactly as it does to any other immovable property, that the sovereign power of the State to acquire the structure or the site on which it stands is as unlimited as it is in relation to any other piece of property.
Third, the Court held that even if a structure or practice is manifestly associated with a religion it shall not be immune from State action under the freedom of religion guaranteed by our Constitution -- unless it is a practice essential to that religion. This vital distinction will come home to us when we think of the contrast between, say, the Kaba in Mecca and the mosque next door, between offering namaz and killing cows. The result was immediate. Citing judgements from even the British period, the Court established how, for instance, a mosque could be lost by adverse possession. It showed how even by those judgements it was subject to the Statute of Limitations. It established how ��A practice may be a religious practice but not an essential and integral part of practice of that religion.��
These principles were of foundational importance. They were essential correctives to what had come to pass in the name of secularism. They gave hope that the excesses that had come to be perpetrated in the name of religion could indeed be rolled back through the courts -- for instance, the insistence that namaz shall be offered on public roads, the insistence that slaughtering cows was a fundamental right that flowed from the freedom of religion guaranteed by the Constitution.
That is why not so much the Interim Order but the remarks that fell from the Bench during this hearing are so ominous. If that is the mood of the Court, these vital principles will themselves be diluted in the days ahead.
Dialogue and negotiations blocked each time by that ��permanently negative answer��. And the Courts in the mood of which the Bench has given us a glimpse. What conclusion will the Hindus draw?
But they must abide by the verdict of the courts, the secularists say. Will some Hindu in turn not one day tabulate how many times the Constitution has been amended precisely to overturn verdicts of the Supreme Court, and throw the number back at those who keep hurling this counsel at him, and him alone?
Actually, why wait for that anonymous Hindu, dear reader, why not pre-empt him? Study the 90-odd amendments yourself, and answer: how many of them have been enacted to reverse judgements of the Supreme Court?
Indian Express
March 18, 2002
"What is the VHP? Whom does it represent? What is its locus standi?", the Supreme Court asked the other day -- and it seemed to have done so in a tone that triggered much delight among secularists.
��A strange question,�� the PM remarked in the Rajya Sabha. A member was up and shouting, actually several secular ones were, interrupting the Prime Minister. Who are the VHP?... They don�t represent the Hindus... They will put a bullet through me..., so what?... The members seemed quite beside themselves. If the mere mention of its name causes so much reaction, the PM observed, then it certainly has locus standi.
In matters of religion and faith, standing is not acquired by winning elections, he said. It depends on the esteem in which people come to hold one...
A telling answer in itself. And it left the critics non-plussed.
Another side to the question that had fallen from the Bench too would have struck you. The Bench did not ask, as the Constitution Bench had not asked, ��Who is Mohammed Aslam, alias �Bhure�? Whom does he represent? What is his locus standi?�� It did not ask, ��What is the Babri Masjid Action Committee? Whom does it represent? What is its locus standi?�� It did not ask, ��What is the �All India Muslim Law Board�? Whom does it represent? What is its locus standi?�� How is it that doubt assailed it only in regard to the Vishwa Hindu Parishad?
To put the matter at the least, the Bench could have looked up the Supreme Court�s own judgement in the Ayodhya case itself! ��The movement to construct a Ram temple at the site of the disputed structure gathered momentum in recent years which became a matter of great controversy and a source of tension,�� the judgement quoted the (Narasimha Rao) Government�s ��White Paper�� as saying. ��This led to several parleys the details of which are not very material for the present purpose. These parleys involving the Vishwa Hindu Parishad (VHP) and the All India Babri Masjid Action Committee (AIBMAC), however failed to resolve the dispute...�� Again, ��At the centre of the Ram Janma Bhumi - Babari Masjid dispute is the demand voiced by the Vishwa Hindu Parishad (VHP) and its allied organisations for the restoration of a site said to be the birthplace of Sri Ram in Ayodhya...��
Yet again, ��The VHP and its allied organisations base their demand on the assertion that...�� And yet again, ��The demand of the VHP has found support from the Bhartiya Janata Party...�� And yet again, ��It was also stated by certain Muslim leaders that if these assertions were proved, the Muslims would voluntarily hand over the disputed shrine to the Hindus. Naturally, this became the central issue in the negotiations between the VHP and the AIBMAC.��
But suddenly, What is the VHP? Who does it represent? What is its locus standi?
In any event, that allusion to ��parleys�� holds a lesson we will do well to remember. One of the best things Mr Chandrashekhar did during his brief Prime Ministership was to get the two sides to agree that the only way to make progress was to exchange evidence on the matter. The two sides started meeting and exchanging documents and written arguments. The Babri Masjid Action Committee was guided by a clutch of Marxist historians -- actually, ��guided by�� is not quite right: it seemed just the front for these ��eminent historians��. The latter used the offices and facilities of the ICHR that they then controlled to prepare the AIBMAC submissions -- a fact that led the then Member Secretary to resign from his post.
The ��evidence�� that the Babri Masjid group submitted was no evidence at all. It was just a miscellaneous pile -- much of it puerile: that Rama was a King of Egypt, that he was born in Afghanistan, and the rest!
The VHP marshalled an array of evidence from archaeological sources, from historical records, from literary sources. That was the end of the ��parleys��! Realising that they could produce nothing to match what the VHP had submitted, the Marxist historians and the AIBMAC gentry just stopped attending the meetings. And it was this withdrawal, and the consequential death of the talks that Mr Chandrashekhar had initiated, as much as anything else that triggered the chain of events that led ultimately to the destruction of the mosque.
I did not doubt for a moment that the new efforts of the Shankaracharya of Kanchi would meet exactly the same fate. And for good reason. In one of the letters that he included in his 'A Bunch of Old Letters', Pandit Nehru used a phrase about Jinnah that describes this bunch, and its invariable device to the dot: ��Mr Jinnah�s permanently negative answer,�� Panditji wrote. This is the singular negotiating tactic of such individuals: just go on rejecting every formula that the other fellow brings up.
And the tragedy is -- the self-inflicted tragedy is -- that there always are persons, groups, powers that insist that the onus of producing the next formula, some formula which will incorporate an even greater concession to the other fellow is on us. And in the end we give in to this insistence. The power and groups that keep insisting that we go on producing new formulae: the British on the question of partition, the host of interlocutors on Kashmir, the secularists on the Ram Janmabhumi.
And the ones who merely keep deploying the ��permanently negative answer��: Jinnah kept rejecting every formula on partition; Pakistan keeps rejecting every formula on Kashmir; the Babri Masjid votaries keep, and will keep rejecting every formula on the Janmabhumi.
And the infuriating part is that the advice to engage in a dialogue is always directed at us -- the Congress on the question of partition, India on Kashmir, the Hindus on the Janmabhumi! It is because of this unbroken, unvarying pattern of 75 years that the new Interim Order of the Supreme Court fills me with foreboding -- doubly so.
The first concerns dialogue, negotiations. In its 1994 judgement the Supreme Court also had expressed the same pious faith: ��This is a matter suited essentially to resolution by negotiations which does not end in a winner and a loser while adjudication leads to that end,�� the Court said. ��It is in the national interest that there is no loser at the end of the process adopted for resolution of the dispute so that the final outcome does not leave behind any rancour in anyone. This can be achieved by a negotiated solution on the basis of which a decree can be obtained in terms of such solution in these suits. Unless a solution is found which leaves everyone happy, that cannot be the beginning for continued harmony between �we the people of India�.�� The same touching faith! Doomed to the same outcome.
But the least that this route requires to succeed is that the Executive has leeway, that it has a wide enough field over which it can bring the contenders closer. The Supreme Court in its 1994 judgement had left this space -- recall, for instance, the passages regarding the undisputed area. The Interim Order has snatched that space away completely. And taken into the judicial lap what the Constitution Bench had realised was not well suited for resolution through judicial adjudication.
The other omen is of an even darker hue. What the Supreme Court had held about the status quo being maintained only on the disputed site, what the Court had said about it being not just permissible but desirable that the undisputed area be handed back to its Hindu owners -- all this was important, but of far lesser importance than another feature of that judgement, a feature that was of foundational significance.
An argument had been advanced on behalf of Muslims -- the Court remarked that it had been advanced with ��vehemence��. This was the familiar assertion that once a mosque has been built on a piece of land, irrespective of who owned the plot earlier, irrespective of what might have stood on it earlier, irrespective of whether the structure had subsequently been used or not, the land would always be a possession of Muslims.
It was contended that this was the position under Muslim Law, and therefore this is what must hold in this case too -- whether a temple stood on the land earlier, whether namaz had been offered at the site since 1949 etc., all these were essentially irrelevant questions. And that the acquisition of the site by the Government for determining its true owners was invalid on this ground alone: secular laws like the Statute of Limitations, the laws regarding acquisition of property by the State etc., do not apply at all to either a mosque or the site on which it was once built, it was argued on behalf of Muslims.
The Supreme Court dealt in detail with this question -- because of the vehemence with which this argument had been advanced, it said. In doing so it laid down three vital principles. First, it held that what will apply in India is not some abstraction called Mahomedan Law, but ��Mahomedan law as approved by Indian courts��.
Second, it reiterated what Indian courts had from the British period consistently held in regard to the status of a mosque: namely, that a mosque is just another immovable property; that, therefore, the Statute of Limitations applies to it exactly as it does to any other immovable property, that the sovereign power of the State to acquire the structure or the site on which it stands is as unlimited as it is in relation to any other piece of property.
Third, the Court held that even if a structure or practice is manifestly associated with a religion it shall not be immune from State action under the freedom of religion guaranteed by our Constitution -- unless it is a practice essential to that religion. This vital distinction will come home to us when we think of the contrast between, say, the Kaba in Mecca and the mosque next door, between offering namaz and killing cows. The result was immediate. Citing judgements from even the British period, the Court established how, for instance, a mosque could be lost by adverse possession. It showed how even by those judgements it was subject to the Statute of Limitations. It established how ��A practice may be a religious practice but not an essential and integral part of practice of that religion.��
These principles were of foundational importance. They were essential correctives to what had come to pass in the name of secularism. They gave hope that the excesses that had come to be perpetrated in the name of religion could indeed be rolled back through the courts -- for instance, the insistence that namaz shall be offered on public roads, the insistence that slaughtering cows was a fundamental right that flowed from the freedom of religion guaranteed by the Constitution.
That is why not so much the Interim Order but the remarks that fell from the Bench during this hearing are so ominous. If that is the mood of the Court, these vital principles will themselves be diluted in the days ahead.
Dialogue and negotiations blocked each time by that ��permanently negative answer��. And the Courts in the mood of which the Bench has given us a glimpse. What conclusion will the Hindus draw?
But they must abide by the verdict of the courts, the secularists say. Will some Hindu in turn not one day tabulate how many times the Constitution has been amended precisely to overturn verdicts of the Supreme Court, and throw the number back at those who keep hurling this counsel at him, and him alone?
Actually, why wait for that anonymous Hindu, dear reader, why not pre-empt him? Study the 90-odd amendments yourself, and answer: how many of them have been enacted to reverse judgements of the Supreme Court?
Indian Express
March 18, 2002
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