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Much has been said about the Ayodhya
verdict especially on the legal technicalities and historical
loopholes. This comment is not on these aspects but on the
socio-political implications of the verdict.
To recapitulate, Allahabad High Court on September 30, 2010, has
given judgment on the six decade old title suit on the land in
Ayodhya. A mosque, popularly known as Babri Masjid, stands on this
land since centuries, however, the land is claimed to be the birth
place of a Hindu deity Rama, by certain Hindu groups, and in the
year 1949, the idols of Rama and Laxman have ‘appeared’ in the
mosque. In the said case, three litigants have claimed ownership
to the land. The three judges deliberating on the case have
pronounced to divide the disputed land into three equal parts
among the litigants namely, Ram Lalla represented by Triloki Nath
Pandy; the Nirmohi Akhara and the Sunni Waqf Board. Details of the
case can be found on the website:
<http://elegalix.allahabadhighcourt.in/elegalix/
DisplayAyodhyaBenchLandingPage.do>
The verdict, at least in the initial
stage, was appreciated for reconciling a long lasting and
sensitive controversy in a democratic manner. It was considered a
judgment that would, perhaps, result in constructing ‘a wall of
harmony’ among the Muslims and the Hindus – a wall that would not
separate but harmonize a Hindu temple and the Muslim mosque in
close proximity.
A few intellectuals appreciated the ‘matured’ reaction of people
including Muslims, to the verdict. They felt that the reaction
reflected faith in the institutions of democratic India especially
in the judiciary. Absence of riots after the judgment corroborated
this interpretation. However, as later developments show, the
judgment has not reconciled the issue and all the three litigants
have expressed their plans to challenge the judgment in the apex
court.
Conversely, I wonder whether the judgment can be taken as
democratic at all. The query gains significance especially if
democracy is not taken as a number game but as a process of
decision making including those processes that take into account
concerns and requirements of all the contesting parties and
arriving at a decision through consensus. As aptly put by
Jilani[1] and confirmed by almost every one, “The honourable
judges have arrived at findings not on the basis of facts or
evidence but on the basis of faith and belief. In other words a
new category has been introduced into the judicial process”[2].
Ashgar Ali Engineer has discussed implication of this process of
arriving at a judgment in India, a country of multiple faiths. To
quote him, “…all three judges have invoked values of peace and
reconciliation rather than constitutional values of democratic
India. Law is and must be indifferent to the faith of litigants
and even of judges and the judgment, in a democratic country like
India which has maintained its independence of judiciary and
constitutional values for last sixty years…. Tomorrow other judges
motivated by their faith may use this judgment as a precedent and
deliver other judgments invoking faith….Thus, stretching the
argument … in a democracy after all numbers count and so faith of
majority community will play greater role than faith of minority
community and court of law will thus become majoritarian in their
attitude and all the legal values and protection of minorities and
their faith in the constitution may be ultimately subverted”.[3]
Yet another reaction to the judgment is seen in the planning of a
group of Dalit rights activists to demand that the Buddha and Jain
viharas (place of worship) that have been converted to Hindu
temples should be returned to the original owners.[4] In short,
the judgment may increase communal tension and marginalization of
the minorities in the nation.
The judgment based on ‘faith and belief’ can be taken as going
against the principle of secularism whether defined in terms of
distancing State from religion or giving equal space to all
religions. The statement gains significance when one recapitulates
that as far as the case of Babri Masjid is concerned, the then
prime minister Jawahar Lal Nehru ordered removal of the statues in
1950, but the contemporary district magistrate of Ayodhya declined
to follow the instruction pleading law-and-order situation in the
city. Again, when a lawsuit against the mosque was filed in the
district court in 1950, the secular state government of Uttar
Pradesh assured Muslims that the lawsuit would be dismissed and
categorically submitted in the court that the building had never
been a temple and was always a Muslim place of worship[5].
The
present judgment reflects the changing nature of Indian judiciary.
The submission can be supported by revisiting the case of Afzal
Guru where capital punishment was granted to Guru in order to
satisfy the ‘collective conscience of the society ’. The judgment
stated,[6] “The incident, which resulted in heavy casualties, had
shaken the entire nation and the collective conscience of the
society will only be satisfied if capital punishment is awarded to
the offender.”
The rhetoric employed in both the cases, assuages the collective
‘national’ conscience, creating a dent in the image of India as a
secular multicultural country. As expressed by many Muslims or
empathetic individuals in their private spaces, social networking
sites or blogs, the judgment is majority oriented and has
legitimized the rightist claim that India belongs to the majority
community of the Hindus (assumed as a monolith). It not only
justifies the rightist claim for priority in the cultural and
religious spaces in Indian democracy but also vindicates their
stand. Modi[7] has called it the first step towards Ramrajya,
implying less or no space for the ‘other’ cultures and faiths in
the Ramrajya, “VHP has made it clear that Sangh Parivar outfits
will not rest with the ownership of only 110/90 feet of land but
will want the entire 67 acres to be handed over to them”.[8] They
have expressed a desire to make a Bhavya Mandir or grand temple on
the premises and have demanded the Muslims to forego their claim
on the land.[9] The essay in the Frontline is appropriately
titled, “Hard line is back”. I would like to add “more
aggressively so”.
The silence or the ready acceptance of the Muslims has popularly
been interpreted as ‘matured’, but I feel it expresses a feeling
of insecurity as well as lack of faith and trust in Indian
democratic institutions and processes. The judgment has reduced
Muslims to second grade citizens in India, projecting faith and
beliefs of the Hindus more worthy of consideration, not giving any
space to the faith and beliefs of the Muslims. Babri Masjid
demolition, Mumbai and Gujarat riots as well as acquittal of the
rioters by the Indian courts appeared to have dwindled faith of
the Muslims in Indian democratic institution and processes. They
appear neither to ‘trust’ the Indian State to save them nor hope
for justice to their causes and needs. Many Muslims including the
first litigant, Mohammad Hashim Ansari, have expressed
appreciation of the verdict because it would not lead to rioting
by the rightist groups. Muslims appeared to have foregone demand
for justice for a space to live/survive without constant fear of
violence or losing one self and the dear ones - survival in
hegemonic terms, giving them a subjugated position but perhaps
allowing them to struggle to acquire ‘roti, kapda aur makan’
(food, cloth and accommodation). They do not trust State machinery
to protect them in case of a judgment favourable to their cause.
The reaction of Muslims reflects their alienation from the State.
The famous social philosopher Charles Taylor has talked about the
need of ‘a high degree of cohesion’ for sustaining democracy. This
cohesion thrives on trust that emerges due to the process of
participation in decision-making. To quote Taylor, “If… a sub
group of the ‘nation’ considers that it is not being listened to
by the rest, or that this rest cannot understand its point of
view, it would immediately consider itself excluded from joint
deliberation. Popular sovereignty demands that one should live
under laws that derive from such deliberation. Anyone who is
excluded can have no part in the decisions that emerge;
consequently, these lose their legitimacy for him or her. A sub
group that is not listened to is in some respect excluded from the
‘nation’, but, by this same token, it is no longer bound by the
will of that nation.”[10] An alienated population can withdraw or
migrate out of the nation taking away with it human and non-human
resources.
Frustration and helplessness can
also be expressed in violence and aggression; in self demolition
and demolition of others. It is the responsibility of the
nation-state then to assuage alienation and enable conditions for
reconciliation by providing free and fair justice as well as stake
in governance. While conducting studies on Sikh extremism,
Deepankar Gupta found that “to a large extent the voice of
terrorism was being deciphered only by those who felt that the
state was no longer the fount of the law and an impartial
arbiter.”[11] Gupta feels that conflict between two parties can be
restrained by the legal and judiciary system. When this system
fails then such disputes cannot arrive at a reasonable conclusion.
“From then on you only have the inarticulate ‘cry’ of the
terrorist.”
Succinctly, to sustain democracy, a nation-state requires a strong
neutral legal and judiciary system – a system that generates faith
thus having capacity to restrain contesting groups, keeping their
vested interest under control. Till now, with whatever
shortcomings that the Indian judiciary and legal system have
shown, it has been able to retain faith of the people. This faith,
however, appears to be wilting. A weak judiciary is a threat to
democracy as it opens other avenues for settling scores, putting
at stake the interest of the nation. Need is to insist and ensure
that justice is delivered to all including the minorities in
accordance to the Constitution of India over-ruling shadows of
religion and politics. Only a strong legal and judiciary system
will rejuvenate trust of the citizens on Indian national
institutions, with a high possibility of reducing communal
tensions and riots.
Ranu Jain works with
Tata institute of Social Sciences, Mumbai
[1] Lawyer of Sunni Waqf Board
[2] Frontline, October 22, 2010
[3] Asghar Ali Engineer (2010): “Ayodhya judgment – triumph of
faith or constitutional legality?” accessed on 19th October on
http://www.csssforum.org/default.aspx?g=posts&t=4
[4] The Telegraph E-paper, Saturday , October 9 , 2010
[5] Gulf News ( Sep. 22, 2010) Interview of Zafaryab Jilani by
Bobby Naqvi at http://gulfnews.com/news/world/india/interview-jilani-fighting-a-long-and-messy-legal-battle-1.685470
[6] Afzal Guru was awarded capital punishment by the Supreme Court
for carrying out attack on the Parliament.
Indian Express (2008): “Will go by SC verdict (death penalty) on
Afzal if we come to power: Advani” accessed on 20th October, 2010
at http://www.indianexpress.com/news/will-go-by-sc-verdict-death-penalty-on-afz/290092/
[7] Indian Express (2010): “Ayodhya verdict is like Gandhiji's
blessings: Modi” accessed on 20th October, 1010 at http://www.indianexpress.com/news/ayodhya-verdict-is-like-gandhijis-blessings/691548/
[8] Frontline (2010:12), October 22
[9] DNA (2010), October 16: pg 17.
[10] Taylor Charles, 2002, “Democracy, Inclusive and Exclusive”,
in Madisen R. et.al. (eds), Meaning and Modernity: Religion,
Polity and Self, University of California Press, London.
[11] Gupta Deepankar, 2002, “Limits of Tolerance: Prospects of
Secularism in India after Gujarat”, Economic and Political Weekly,
Nov. 16
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