Prabhat Patnaik in the Telegraph lists three obvious problems with the Allahabad High Court judgment on the Babri Masjid issue:
The first is the obliteration of the distinction between “fact” and “faith”, which represents a serious retrogression to pre-modernity.
The second disturbing aspect of the judgment is the obliteration of the distinction between “negotiation” and adjudication... The court is supposed to be fair because it does not settle issues on the basis of relative strengths but entirely on the basis of evidence, facts and legal provisions.
The third problem with the judgment is that it has accepted the demolition of the Babri Masjid, an act that was a direct violation of the law of the land, as a fait accompli; and by remaining silent on this fait accompli while giving a verdict that echoes in essence what those who undertook the demolition were claiming, it has implicitly rationalized post facto that horrendous and unlawful act of demolition.
I think there is no disputing Patnaik's point #2 and #3 — personally, while my main criticism of the judgment has been based on point #3, I can totally see the validity of PP's point #2.
As far as I am concerned, I think point #1 needs to be thought about some more as there are many layers to it. I also think that the court should not at all be examining questions as to whether or not the disputed land is the birth-place of Lord Ram. Couldn't the title suit be decided by taking into account whether or not this was a Hindu place of worship without bringing the historicity or otherwise of Ram into it?
In fact, Santosh Desai, in his TOI column of October 10, addresses the question a bit:
There is a strand of opinion that argues that this court verdict is unjust because it sacrifices history for faith. To accept that because Hindus believe this is the site of Lord Rama's birth it is indeed worthy of being recognised as such, is to open the floodgates on many such 'imagined' contentions. In a strictly technical sense, there is merit in this view. But in a larger sense, isn't this true of all faiths? When the Danish cartoon controversy broke out, that too was based on the belief that the Prophet could not be represented in any pictorial form; if that faith-based belief could be respected, why should the verdict be held to another standard?
While going along with the overall thrust of his argument about there being a secular double-standard and hypocrisy which definitely needs serious introspection, I don't think his comparison with the Prophet Cartoon controversy holds as the cases are hardly analogous and no courts were involved in the cartoon controversy, at least in so far as it played out in India. Here there is merit in the argument that the court should not be looking into such questions as to whether or not Lord Ram was born in that disputed land or thereabouts. Yet I can roughly see what Santosh Desai is saying here. My argument would just be that without going into the historicity or otherwise of Ram, and thus where he was born, there is enough "evidence" out there about Hindus holding that land specially sacred. Justice Khan does indeed have the most nuanced take on the subject, both in the judgment and its gist.
For me, the obvious question to ask the SC would be:
What if the mosque -- structure, whatever you want to call it -- had not been demolished? Would the HC have ordered the mosque to be partially demolished?
Other questions — even if that was not the remit of the HC:
- Why after the mosque was demolished, the make-shift temple was allowed to be built with the idols placed there?
- Why could the idols not be removed in 1992? The sentiment was pretty much against the demolition by then and things could have been controlled had the 1949 act of taking the idols inside the mosque was reversed by ensuring that no idols remained there in 1992
Patnaik also flags two possible fall-outs of the judgement:
- Serious consequences that go beyond the specific issue under consideration
- This leave behind wounds that fester and can cause damage later even if there is no immediate cause for concern.
Both are absolutely valid fears, the first despite safeguards such as The Places of Worship (Special Provisions) Act of 1991, and he second of the various apprehensions already expressed about the HC judgment. I am not sure why it was never explored that the 1986 opening of the locks too could be reversed and Ayodhya too covered by this Act and need to look this up among the debates in the 1980s and early 1990s. Patnaik also of course offers the obvious last word as the best course of action as far as the law of the land is concerned:
Hopefully, the Supreme Court to which the matter will be referred will be mindful of the pitfalls of quick fixes and will uphold scrupulously the cause of law.
Read his full piece at the Telegraph
All that said, the resolution to the dispute, it should also be clear to all, will also not come from the Supreme Court. What we need for that is indeed something akin to what most people have said and Santosh Desai mentions here:
...By hardening the lines between those who acknowledge the role of religious identity in our lives and those who don't, we are creating a climate where dialogue becomes increasingly difficult. The Ayodhya verdict is an excellent opportunity to attempt some sort of a reconciliation not only between the communities but between those who call themselves secularists and those who don't...
At the end of day, neither the masjid nor the mandir are meaningful by themselves. Both are symbols of larger ideas- the re-building of the masjid signifies the right that all faiths in India have that in the India of today, no faith can be trampled upon in a fit of majoritarian frenzy and the building of the mandir an acknowledgment of the resentment harboured by a faith for their perceived historical repression. By building both the masjid and the mandir, we have the opportunity of recognising that faith continues to be an important part of our lives, and that we cannot sidestep it by building some other structure, as well as providing some closure to the historical baggage carried by both communities. This would work of course, if this ended all such debates permanently. Build one masjid and one temple and then let us move on for all time to come.
Both closures are required if are to "move on" -- in the SC and in the society at large.
Since I had earlier misattributed the Telegraph article above to Mukul Kesavan, it would be useful to also note the three big problems he listed in the Guardian:
First, it recognises a prior Hindu claim to the site of a medieval mosque by relying on a report submitted by the Archaeological Survey of India.
Second, the judgment concedes that the religious beliefs of a rhetorically invoked Hindu majority, regardless of their historical truth, can be determining in a legal dispute
All three judges acknowledge that Hindu idols were furtively installed under the central dome in 1949, which is when Hindu worship first began inside the mosque – but this illegality and the subsequent criminal razing of the mosque count for nothing in their judgment. This is the third problem with the verdict.
I think it is important also to note the following in his piece:
Meanwhile, in the media, there is enormous pressure on Muslims to "settle", to accept the judgment as fair. The Muslim litigants are already being cast as spoilers. When bearded Waqf board spokesmen are interviewed on television by slick young anchors in suits who keep asking them if they're prepared to "move on", a convenient tableau of fundamentalist intransigence is born.
And the following which I had actually meant to blog about as I too briefly watched this bit:
One of the more poignant moments in the post-verdict debate was the sight of that lion of Hindi cinema, Javed Akhtar, scriptwriter and lyricist, in a television studio in his capacity as a secular Muslim. He said, deadpan, that Muslims couldn't be secular. He was suggesting, ironically, that Indian Muslims could only be militant or moderate, bad or good. Being secular was the privilege of chivalric Hindus; Muslims, by implication, were limited to the roles forced upon them by their Hindu interlocutors.
Read the full Mukul Kesavan article at the Guardian