THE irony couldn't have been greater. The All India Babri Masjid Action Committee (AIBMAC) and the Vishwa Hindu Parishad (VHP) are actually speaking in one voice on the Ayodhya dispute. The Union Government's resolve—spelt out in the common minimum programme—to refer the matter to the Supreme Court under Article 138(2) of the Constitution has raised the hackles of the two adversaries.
The VHP's opposition is hardly surprising. The Sangh parivar has always maintained that the 'fact' of Lord Ram's birth at the disputed site is a matter of faith and cannot be left to judicial adjudication. But it is the vehement opposition of the AIBMAC and other Muslim leaders which has stunned the Government. The AIBMAC maintains that no useful purpose will be solved by yet another reference to the apex court, arguing that it would only delay the ongoing trial in the Allahabad High Court which is expected to reach the oral evidence stage in the last week of July.
The net result is that the dispute, which was dormant for the last 18 months, has flared up again. And the timing could not have been worse for the UF Government, coming as it does in the run-up to the Uttar Pradesh assembly elections. Little wonder then that rifts have appeared in the UF, with Defence Minister Mulayam Yadav and his Samajwadi Party distancing themselves from the proposal.
In fact, AIBMAC Convenor Zafarab Jilani's main concern is that the move will not only cause unnecessary judicial delays but could also give the BJP a potent plank in the forthcoming assembly elections.
However, several pre-conditions must be met before a reference under Article 138(2)—which is binding—can be made. The consent of the state government must be obtained and Parliament must pass legislation to enable the Supreme Court to entertain the reference. Obtaining the consent implies either arm-twisting the governor or waiting until there is an elected government in Lucknow. If the Centre approaches the governor, says Jilani, the constitutionality of the move can be challenged. If it waits for the assembly polls and the BJP wins, the chances of getting its consent are dim. Besides, the very act of referring the matter to the apex court before the assembly elections would give the BJP poll fodder.
Even assuming that the exercise is completed, the Supreme Court may well decide to throw out the fresh reference. "It took the Supreme Court 34 hearings and over 18 months to reject the Rao government's plea. Now, the civil suits in the Allahabad High Court have reached the stage of oral evidence. Referring the matter to the Supreme Court would effectively delay it for another couple of years," says Jilani.
Adds lawyer Rajeev Dhawan: "This is not only bad politics but is laced with legal illiteracy. The parties in power should know that they have ahead of them complex constitutional process involving the Union and state governments as well as Parliament. Even after this process the legislation may be struck down for unconstitutionality because it deprives the losing community of a right to appeal." In any case, even after the Allahabad High Court announces a decision, the matter is likely go to the Supreme Court on appeal.
Lawyer Abdul Manaan feels that nobody is looking for a solution: "The moment you have a judicial decision, you lose a political issue." Constitutional expert Shantibhushan raises another question: "What is the Government going to refer to the Supreme Court? The case can be referred under Article 138, but they must be sure what they are going to refer. "
Jilani and Manaan echo the query: will the entire "case" be referred or just an "issue", as Rao did in 1993 under Article 143(1)? Under Article 139, the Supreme Court already has the power to transfer cases, but it clarified in 1994 that the Allahabad High Court would decide the pending civil suits.
Congress spokesperson V.N. Gadgil notes that the Supreme Court, while dismissing the Government's petition under Article 143(1), said it should await the Allahabad High Court judgement before rushing to the apex court. "The Congress also believes that we should await the high court decision before any step is taken," he says.
Union Minister of State for Internal Security Mohammad Taslimuddin complicated matters by suggesting that the Union Government take over the disputed site and establish a national monument. The suggestion is laughed off by the VHP's Ramchandra Paramhans: "You can have a monument to Gandhi or Maulana Azad, but Mohammed and Ram merit masjids or temples."
"Taslimuddin assaults the Muslims the same khanjar Rao used against us," Mohammad Hashim Ansari, a resident Faizabad and co-petitioner in the suit title to the disputed site. By referring dispute to the Supreme Court under Article 138(2), he alleges that the UF is just dilly-dallying as past governments have done.
The Janata Dal leadership is obviously embarrassed by the reaction of the Muslim organisations; party spokesperson Jaipal Reddy asks why protests were not made when the Janata Dal and the Left included Article 138(2) in their manifestos. Jilani says the protests were made but not heard.
For his part, Jilani denies that the AIBMAC has "lost faith"in the Supreme Court. Even now, he says, he would be quite happy to see the entire matter transferred to the apex court.
In 1993, when the reference under Article 143(1) was made—on whether there had been a Hindu temple at the disputed site—non-Congress secular parties (particularly the Left) demanded that it be under Article 138(2), which was binding. At the time, it might have been a relevant demand but in the present circumstances, it will be counter-productive, says Dhawan.
AS VHP General Secretary Acharya Giriraj Kishore observes: "Deve Gowda stated that referring the Cauvery issue to the Supreme Court would not be right since it is a sensitive issue. Why can't he realise that Ayodhya is more sensitive than Cauvery?"
In fact, a section of the United Front now wants to keep the matter quiet, at least until the assembly polls are over. "These elections will be fought on caste, not communal lines," says a senior Janata Dal leader. He dismisses the "utopian" suggestion that the Government prove its sincerity by holding tripartite talks with the AIBMAC and the VHPor petition the court for permission to start rebuilding the masjid. Firstly, the Muslim leadership is dead set against negotiations and, secondly, it would give the BJP leverage in the assembly polls.
And as Dhawan sums up: "No speed will be brought to the resolution but the price paid will be to bring back high pro-file controversy to Ayodhya which has hitherto been quelled into temporary peace."
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